Transcript Slide 1

Roles and Ethical Responsibilities
in Dependency Cases
By Tim Jaasko-Fisher
Director
Court Improvement Training Academy
University of Washington School of Law
What is ethical behavior?
Why should you care?
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Build trust in “the system”
Promote justice
Makes your job easier
Reduces burn out
Improves the system as a whole
We are all part of a system
• A system is…
– An interconnected
– set of elements
– that is coherently organized
– in a way that achieves something.
Adapted from: Meadows, Donella. Thinking in Systems: A Primer. Chelsea
Green Publishing: White River Junction, Vermont (2008).
Rules and Ethical Codes – A quick Tour
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AAG
CASA / GAL
Youth Attorney
Social Worker
Judicial Officer
Parents Representation
The Assistant Attorney General
• Rules of Professional Conduct
• American Bar Association Standards for
Attorneys Representing Child Welfare
Agencies
Issues specifically related to AAG Role
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Who is the AAGs “client”
RPC 1.13 – Organization as Client
RPC 1.1 – Duty of Competence
Ethical Obligations under the ABA Standards
of Practice
Who is the AAG’s Client?
RPC 1.13
• (a) A lawyer employed or retained by an organization represents the
organization acting through its duly authorized constituents. (b) If a lawyer
for an organization knows that an officer, employee or other person
associated with the organization is engaged in action, intends to act or
refuses to act in a matter related to the representation that is a violation
of a legal obligation to the organization, or a violation of law that
reasonably might be imputed to the organization, and that is likely to
result in substantial injury to the organization, then the lawyer shall
proceed as is reasonably necessary in the best interest of the organization.
Unless the lawyer reasonably believes that it is not necessary in the best
interest of the organization to do so, the lawyer shall refer the matter to
higher authority in the organization, including, if warranted by the
circumstances, to the highest authority that can act on behalf of the
organization as determined by applicable law.
- See comments
http://www.courts.wa.gov/court_rules/?fa=court_rules.list&group=ga
&set=RPC
RPC 1.1 - Competence
A lawyer shall provide competent
representation to a client. Competent
representation requires the legal knowledge,
skill, thoroughness and preparation
reasonably necessary for the representation.
What do you have to know to be
competent?
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Titles IV-B and IV-E of the Social Security Act, including the
Adoption and Safe Families Act (ASFA), 42 U.S.C. §§ 620-679 and
the ASFA Regulations, 45 C.F.R. Parts 1355, 1356, 1357
• Child Abuse Prevention Treatment Act (CAPTA), 42 U.S.C. §5101
• Indian Child Welfare Act (ICWA) 25 U.S.C. §§1901-1963, and the
ICWA Regulations, 25 C.F.R. Part 23
• Multi-Ethnic Placement Act (MEPA), as amended by the Inter-Ethnic
Adoption Provisions of 1996 (MEPA-IEP) 42 U.S.C. § 622 (b)(9)
(1998), 42 U.S.C. § 671(a)(18) (1998), 42 U.S.C. §1996b (1998).
• Interstate Compact on Placement of Children (ICPC)
• Foster Care Independence Act of 1999, P.L. 106-169
• Individuals with Disabilities Education Act (IDEA), P.L. 91-230
• Family Education Rights Privacy Act (FERPA), 20 U.S.C. §1232g
• Health Insurance Portability and Accountability Act of 1996 (HIPPA),
P. L., 104-192 §264, 42 U.S.C. §1320d-2 (in relevant part)
• All state laws, policies and procedures regarding child abuse and
neglect
• State laws concerning privilege and confidentiality, public benefits,
education, and disabilities
• State’s Rules of Professional Responsibility or other relevant ethics
standards
American Bar Association. Standards of Practice for Lawyers
Representing Child Welfare Agencies (2004).
http://www.abanet.org/child/agency-standards.pdf
Ethical and Practice Considerations for
AAG
• Ensure an effective conflict resolution system
between AGO and DSHS.
• Understand and comply with state and federal
confidentiality laws.
• Initiate and maintain positive working
relationships with other professionals.
• Play an active role in determining how youth
should participate in court matters.
Ethical and Practice Considerations for
AAG Managers
• Caseload standard of 60 cases
• Continuity of representation
• Continuing training and education
opportunities
Attorney for Youth
• Rules of Professional Conduct
• American Bar Association Standards for
Attorneys Representing Youth
Considerations for Youth Attorneys
• RCW 13.34.100(6) – youth over 12 may
request an attorney
• RCW 13.34.100(6) attorney to represent
youth’s “stated interest”
• RPC 1.14 – diminished capacity
RPC 1.14 – Diminished Capacity
(a) When a client's capacity to make
adequately considered decisions in connection
with a representation is diminished, whether
because of minority, mental impairment or for
some other reason, the lawyer shall, as far as
reasonably possible, maintain a normal clientlawyer relationship with the client.
RPC 1.14 comment 1
• “For example, children as young as five or six
years of age, and certainly those of ten or
twelve, are regarded as having opinions that
are entitled to weight in legal proceedings
concerning their custody. “
RPC 1.14 comment 2
• [2] The fact that a client suffers a disability
does not diminish the lawyer's obligation to
treat the client with attention and respect.
Even if the person has a legal representative,
the lawyer should as far as possible accord the
represented person the status of client,
particularly in maintaining communication.
RPC 1.14(b) – protective action
• (b) When the lawyer reasonably believes that the
client has diminished capacity, is at risk of
substantial physical, financial or other harm
unless action is taken and cannot adequately act
in the client's own interest, the lawyer may take
reasonably necessary protective action, including
consulting with individuals or entities that have
the ability to take action to protect the client and,
in appropriate cases, seeking the appointment of
a guardian ad litem, conservator or guardian.
CASA / GAL
• RCW 13.34.100 requires a CASA / GAL unless
there is a lawyer appointed.
• RCW 13.34.105 sets out specific duties
• CASA / GAL is to represent child’s best
interest, but has an obligation to inform the
court of child’s explicit wishes as well.
• Standard 12 requires an
CASA / GAL Duties
(a) To investigate, collect relevant information about the child's situation, and report to the court
factual information regarding the best interests of the child;
(b) To meet with, interview, or observe the child, depending on the child's age and
developmental status, and report to the court any views or positions expressed by the child on
issues pending before the court;
(c) To monitor all court orders for compliance and to bring to the court's attention any change in
circumstances that may require a modification of the court's order;
(d) To report to the court information on the legal status of a child's membership in any Indian
tribe or band;
(e) Court-appointed special advocates and guardians ad litem may make recommendations
based upon an independent investigation regarding the best interests of the child, which the court
may consider and weigh in conjunction with the recommendations of all of the parties; and
(f) To represent and be an advocate for the best interests of the child.
DSHS Social Workers
• DSHS Policy and Practice guides, RCW, WAC
• National Association of Social Workers code of
ethics
DSHS Social Workers
“Keeping children safe from child abuse and
neglect is the foundation on which child
protective services was established and
should always be the first goal of any child
protective service response.”
- Child welfare League of America Standards of
Excellence
Who is the client?
Under ethical guidelines, “client” may be child,
family, group, or society as a whole.
- Duty to protect child (individual)
- Duty to assist family (family)
- Duty to report abuse and neglect (society)
Ethical Problem Solving for SW
• Social workers have an ethical duty to act
openly and honestly
• Social workers have a duty to act
cooperatively and to collaborate to solve
problems.
• Social workers strive to maintain objectivity
Judicial Officer
• Code of Judicial Conduct
• Juvenile non-offender bench book
Judicial Cannons
Cannon 1: Judges shall uphold the integrity and
independence of the judiciary
Cannon 3: Judges shall perform the duties of
their office patiently and diligently
Cannon 4: Judges may engage in activities to
improve the law, legal system and
administration of justice
Cannon 3
(3) Judges should be patient, dignified, and
courteous to litigants, jurors, witnesses, lawyers,
and others with whom judges deal in their official
capacity, and should require similar conduct of
lawyers, and of the staff, court officials, and
others subject to their direction and control.
(6) Judges should dispose promptly of the
business of the court.
Attorney for Parent
• Rules of Professional Conduct
• American Bar Association Standards for
Attorneys Representing Parents
RPC 1.3 - diligence
A lawyer shall act with reasonable diligence
and promptness in representing a client.
RPC 1.3 comment 1
[1] [Washington revision] A lawyer should pursue
a matter on behalf of a client despite opposition,
obstruction or personal inconvenience to the
lawyer, and take whatever lawful and ethical
measures are required to vindicate a client's
cause or endeavor. ...The lawyer's duty to act with
reasonable diligence does not require the use of
offensive tactics or preclude the treating of all
persons involved in the legal process with
courtesy and respect.
RPC 1.3 comment 2
A lawyer's work load must be controlled so that
each matter can be handled competently.
RPC 3.2 – Expediting Litigation
A lawyer shall make reasonable efforts to
expedite litigation consistent with the
interests of the client.
RPC 3.2 comment 1
[1] Dilatory practices bring the administration of
justice into disrepute. Although there will be
occasions when a lawyer may properly seek a
postponement for personal reasons, it is not
proper for a lawyer to routinely fail to expedite
litigation solely for the convenience of the
advocates. Nor will a failure to expedite be
reasonable if done for the purpose of frustrating
an opposing party's attempt to obtain rightful
redress or repose.
100%
Timing of Family Reunification
Statewide
90%
80%
70%
Median time to reunification in days = 138
60%
50%
40%
30%
20%
10%
0%
Days since entry to care
Partners for Our Children (2009)
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Potential Points of Conflict
Legal System
• Individual Client
• Duty to maintain
secrets
• Duty to advocate
• Loyalty to one client
• Interest focused
Social System
• Broad client
• Duty to share
information
• Duty to collaborate
• Loyalty to broader
social goals
• Objective focus
What can we do about the conflicts?
• Understand “working in the system” vs.
“working on the system”
• Understand that roles may explain behavior
• Be nice to each other
• Become a learning system that continually
seeks to improve
We are all part of a system
• A system is…
– An interconnected
– set of elements
– that is coherently organized
– in a way that achieves something.
Adapted from: Meadows, Donella. Thinking in Systems: A Primer. Chelsea
Green Publishing: White River Junction, Vermont (2008).