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Legal Ethics in Child Custody and Dependency Proceedings

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

Author: William Wesley Patton
Publisher: Cambridge University Press
ISBN: 9781107407510
Published In: September 2012
Format: Paperback , 272 pages
Jurisdiction: U.K. ? Disclaimer:
Countri(es) stated herein are used as reference only

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Contents

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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

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