Legal Ethics in Child Custody and Dependency Proceedings

Family Law

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

By William Wesley Patton
Cambridge University Press September 2012

Specifications

ISBN-13
9781107407510
Publisher
Cambridge University Press
Publication
September 2012
Format
Paperback , 272 pages
Jurisdiction
U.K. ? Countri(es) for reference only

Details

This 2006 book provides a 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 not only analyzes ethical rules in terms of the chronology of these proceedings, 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.

• A comprehensive, annotated analysis of ethical discussions in cases, statutes, state bar ethics codes, Attorney General opinions, and model codes of ethics

• A discussion of ethical rules according to the chronology of disputes involving children in relation to the ethical duties of children's counsel

• A complete juvenile case file with extensive analysis of the inherent ethical issues

Table of Contents

Foreword, by Martin Guggenheim page ix
Acknowledgments xi
Introduction 1
1 Conflicts of Interest 7
  I. Children’s Attorneys: Potential Divided Loyalties 7
  II. Conflicts of Interest Involving Parents’ Attorneys 13
  III. The Department’s Attorney: Who Is the Client? 16
  IV. Judges: Limits and Responsibilities of the Neutral and Detached Magistrate 23
2 Competent and Zealous Representation 27
  I. Children’s Attorneys: Zealous Advocates or Best Interest Storytellers? 28
    A.  Children’s Competence as a Key in Deciding the Model of Advocacy 30
    B.  The Lawyer’s Role as the Child’s Guardian Ad Litem 33
    C.  Hybrid Models of Child Representation 35
  II. Parents’ Attorneys 35
    A.  Failure to Complete Lawyering Responsibilities 35
    B.  Competence and Zealousness 37
  III. The Department’s Attorney: Furthering Justice or Zealous Advocate? 44
  IV. Judges: Neutral Magistrates or Children’s Defenders? 52
  V. Emerging Issues Regarding Substitution of Counsel and Self-Representation 61
    A.  The Right to Substitute Counsel 61
    B.  The Right to Self-Representation 65
3 Confidentiality 68
  I. Children’s Attorneys: Safety Versus Secrecy 69
  II. Parents’ Attorneys: Duty to Disclose Child Abuse? 74
  III. The Department’s Attorney: Disclosure and Trial Tactics 79
  IV. Judges: Parties’ Privacy Versus Public Overseer 82
4 The Ethics of Alternative Dispute Resolution in Child Custody and Dependency Proceedings 88
  Introduction 88
  I. Alternative Dispute Resolution Versus Litigation in Custody Cases 92
  II. Advantages and Disadvantages of Alternative Dispute Resolution in Child Custody and Dependency Proceedings 95
  III. Coming Full Circle: The Evolution of Child Custody Mediation 100
  IV. The Legitimacy of Informal Settlements and the Limits of Mediators’ and Arbitrators’ Jurisdiction in Child Custody and Dependency Proceedings 101
    A.  Finality and Scope of Arbitrated and Mediated Custody and Dependency Settlement Agreements 102
    B.  The Duty of Candor: Good Faith, Puffing, and Lies 107
  V. The Scope of Alternative Dispute Resolution Confidentiality 111
  VI. The Role of the Mediator 117
5 Ethical Considerations and Constraints in Child Custody and Dependency Appeals 120
  I. The History of the Right to Appointed Appellate Counsel in Child Custody and Dependency Proceedings 121
  II. Standing to Appeal 123
  III. The Duty of Competence in Custody and Dependency Appeals 124
  IV. The Duty and Scope of Zealous Appellate Representation 127
  V. The Duty of Candor and Loyalty on Appeal 134
  VI. The Procedural and Substantive Scope of Appeals 141
6 The Constitutionality of Legislative and Executive Regulation of the Practice of Law and Defining the Attorney-Client Relationship 145
  I. A Short History of the Role of Courts, Legislatures, and the Executive in the Regulation of Attorneys 148
    A.  Wisconsin: Separation of Powers in Regulating Attorneys in Child Custody and Dependency Proceedings 151
    B.  California: Comity over Independence? 156
  II. Conclusion 163
Appendix A.  National Association of Counsel for Children Standards 165
Appendix B.  American Bar Association Standards of Practice for Lawyers Who Represent Children in Abuse and Neglect Cases 185
Appendix C.  In re Car Simulation and Analysis 223
Other Authorities 239
Cases and Ethics Opinions 247
Index 255
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