Legal Ethics in Child Custody and Dependency Proceedings: A Guide for Judges and Lawyers

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ISBN: 9780521853170 | 0521853176
Cover: Hardcover
Copyright: 6/26/2006

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This book provides the first fully annotated discussion of the ethical universe surrounding state mandated and private legal disputes involving the custody and best interest of children. It surveys thousands of court cases, statutes, state bar ethics codes, attorney general opinions, and model codes regarding ethical constraints in family and dependency proceedings. The book is unique in two ways. It analyzes ethical rules not only in terms of the chronology of these proceedings, but it also surveys those principles for each of the primary participants - children's counsel, parents' counsel, government attorneys, and judges. The book contains chapters on pre-hearing alternative dispute resolution, motion and trial practice, appellate procedures, and separation of powers. Finally, the book provides a complete child abuse case file with a comprehensive analysis of the inherent ethical issues.

Foreword, by Martin Guggenheim

Acknowledgments

Introduction

(6)

1 Conflicts of Interest

(20)

I. Children's Attorneys: Potential Divided Loyalties

(6)

II. Conflicts of Interest Involving Parents' Attorneys

(3)

III. The Department's Attorney: Who Is the Client?

(7)

IV. Judges: Limits and Responsibilities of the Neutral and Detached Magistrate

(4)

2 Competent and Zealous Representation

(41)

I. Children's Attorneys: Zealous Advocates or Best Interest Storytellers?

(7)

A. Children's Competence as a Key in Deciding the Model of Advocacy

(3)

B. The Lawyer's Role as the Child's Guardian Ad Litem

(2)

C. Hybrid Models of Child Representation

(1)

II. Parents' Attorneys

(9)

A. Failure to Complete Lawyering Responsibilities

(2)

B. Competence and Zealousness

(7)

III. The Department's Attorney: Furthering Justice or Zealous Advocate?

(8)

IV. Judges: Neutral Magistrates or Children's Defenders?

(9)

V. Emerging Issues Regarding Substitution of Counsel and Self-Representation

(7)

A. The Right to Substitute Counsel

(4)

B. The Right to Self-Representation

(3)

3 Confidentiality

(20)

I. Children's Attorneys: Safety Versus Secrecy

(5)

II. Parents' Attorneys: Duty to Disclose Child Abuse?

(5)

III. The Department's Attorney: Disclosure and Trial Tactics

(3)

IV. Judges: Parties' Privacy Versus Public Overseer

(6)

4 The Ethics of Alternative Dispute Resolution in Child Custody and Dependency Proceedings

(32)

Introduction

(4)

I. Alternative Dispute Resolution Versus Litigation in Custody Cases

(3)

II. Advantages and Disadvantages of Alternative Dispute Resolution in Child Custody and Dependency Proceedings

(5)

III. Coming Full Circle: The Evolution of Child Custody Mediation

100

(1)

IV. The Legitimacy of Informal Settlements and the Limits of Mediators' and Arbitrators' Jurisdiction in Child Custody and Dependency Proceedings

101

(10)

A. Finality and Scope of Arbitrated and Mediated Custody and Dependency Settlement Agreements

102

(5)

B. The Duty of Candor: Good Faith, Puffing, and Lies

107

(4)

V. The Scope of Alternative Dispute Resolution Confidentiality

111

(6)

VI. The Role of the Mediator

117

(3)

5 Ethical Considerations and Constraints in Child Custody and Dependency Appeals

120

(25)

I. The History of the Right to Appointed Appellate Counsel in Child Custody and Dependency Proceedings

121

(2)

II. Standing to Appeal

123

(1)

III. The Duty of Competence in Custody and Dependency Appeals

124

(3)

IV. The Duty and Scope of Zealous Appellate Representation

127

(7)

V. The Duty of Candor and Loyalty on Appeal

134

(7)

VI. The Procedural and Substantive Scope of Appeals

141

(4)

6 The Constitutionality of Legislative and Executive Regulation of the Practice of Law and Defining the Attorney-Client Relationship

145

(20)

I. A Short History of the Role of Courts, Legislatures, and the Executive in the Regulation of Attorneys

148

(15)

A. Wisconsin: Separation of Powers in Regulating Attorneys in Child Custody and Dependency Proceedings

151

(5)

B. California: Comity over Independence?

156

(7)

II. Conclusion

163

(2)

Appendix A. National Association of Counsel for Children Standards

165

(20)

Appendix B. American Bar Association Standards of Practice for Lawyers Who Represent Children in Abuse and Neglect Cases

185

(38)

Appendix C. In re Car Simulation and Analysis

223

(16)

Other Authorities

239

(8)

Cases and Ethics Opinions

247

(8)

Index

255

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Legal Ethics in Child Custody and Dependency Proceedings: A Guide for Judges and Lawyers

Summary

Author Biography

Table of Contents

Supplemental Materials