Rule IV - Child's AttorneysA. Ethics and confidentiality1. Child's Attorneys are bound by Iowa's ethics rules in all matters.2. A Child's Attorney appointed to represent two or more children should remain alert to the possibility of a conflict that could require the lawyer to decline representation or withdraw from representing all of the children.Commentary
[1] The child is an individual with independent views. To ensure that the child's independent voice is heard, the Child's Attorney should advocate the child's articulated position, and owes traditional duties to the child as client, subject to Iowa Rules of Professional Conduct 32:1.2(a) and 32:1.14.[2] The Iowa Rules of Professional Conduct impose a broad duty of confidentiality concerning all "information relating to the representation of a client," but they also modify the traditional exceptions to confidentiality. Under rule 32:1.6, a lawyer may reveal information without the client's informed consent "to the extent the lawyer reasonably believes necessary . . . to prevent reasonably certain death or substantial bodily harm," or "to comply with other law or a court order," or when "the disclosure is impliedly authorized in order to carry out the representation." Also, according to rule 32:1.14(c), "the lawyer is impliedly authorized under rule 32:1.6 to reveal information about the client, but only to the extent reasonably necessary to protect the client's interests" when acting under rule 32:1.14 to protect a client with "diminished capacity" who "is at risk of substantial physical, financial, or other harm."[3] Iowa Rule of Professional Conduct 32:1.7 provides that "a lawyer shall not represent a client if . . . the representation of one client will be directly adverse to another client ...." Some diversity between siblings' views and priorities does not pose a direct conflict. But when two siblings aim to achieve fundamentally incompatible outcomes in the case as a whole, they are "directly adverse." Comment [8] to rule 32:1.7 states that "a conflict of interest exists if there is a significant risk that a lawyer's ability to consider, recommend, or carry out an appropriate course of action for the client will be materially limited .... [A] lawyer asked to represent several individuals . . . is likely to be materially limited in the lawyer's ability to recommend or advocate all possible positions that each might take because of the lawyer's duty of loyalty to the others.... The critical questions are the likelihood that a difference in interests will eventuate and, if it does, whether it will materially interfere with the lawyer's independent professional judgment in considering alternatives or foreclose courses of action that reasonably should be pursued on behalf of the client."B. Informing and counseling the clientIn a developmentally appropriate manner, the Child's Attorney should:
1. Meet with the child upon appointment, before court hearings, when apprised of emergencies or significant events affecting the child and at other times as needed to gain the child's trust and establish a rapport with the child.2. Explain to the child what is expected to happen before, during, and after each hearing.3. Advise the child and provide guidance, communicating in a way that maximizes the child's ability to direct the representation.4. Discuss each substantive order and its consequences with the child.Commentary
[1] Meeting with the child is important before court hearings and case reviews. Such in-person meetings allow the lawyer to explain to the child what is happening, what alternatives might be available, and what will happen next.[2] The Child's Attorney has an obligation to explain clearly, precisely, and in terms the child can understand, the meaning and consequences of the child's choices. A child may not understand the implications of a particular course of action. The lawyer has a duty to explain in a developmentally appropriate way such information as will assist the child in having maximum input in decision-making. The lawyer should inform the child of the relevant facts and applicable laws and the ramifications of taking various positions, which may include the impact of such decisions on other family members or on future legal proceedings. The lawyer may express an opinion concerning the likelihood of the court or other parties accepting particular positions. The lawyer may inform the child of an expert's recommendations germane to the issue.[3] As in any other attorney-client relationship, the lawyer may express the lawyer's assessment of the case, the best position for the child to take, and the reasons underlying such recommendation, and the lawyer may counsel against the pursuit of particular goals sought by the client. However, a child may agree with the lawyer for inappropriate reasons. A lawyer must remain aware of the power dynamics inherent in adult-child relationships, recognize that the child may be more susceptible to intimidation and manipulation than some adult clients, and strive to detect and neutralize those factors. The lawyer should carefully choose the best time to express the lawyer's assessment of the case. The lawyer needs to understand what the child knows and what factors are influencing the child's decision. The lawyer should attempt to determine from the child's opinion and reasoning what factors have been most influential or have been confusing or glided over by the child.[4] The Child's Attorney has dual fiduciary duties to the child that must be balanced. On the one hand, the lawyer has a duty to ensure that the child is given the information necessary to make an informed decision, including advice and guidance. On the other hand, the lawyer has a duty not to overbear the will of the child. While the lawyer may attempt to persuade the child to accept a particular position, the lawyer may not advocate a position contrary to the child's expressed position except as provided by the applicable ethical standards.[5] Consistent with the rules of confidentiality and with sensitivity to the child's privacy, the lawyer should consult with the child's therapist and other experts and obtain appropriate records. For example, a child's therapist may help the child to understand why an expressed position is dangerous, foolish, or not in the child's best interests. The therapist might also assist the lawyer in understanding the child's perspective, priorities, and individual needs. Similarly, significant persons in the child's life may educate the lawyer about the child's needs, priorities, and previous experiences.[6] As developmentally appropriate, the Child's Attorney should consult the child prior to any settlement becoming binding.[7] The child is entitled to understand what the court has done and what that means to the child, at least with respect to those portions of the order that directly affect the child. Children sometimes assume that orders are final and not subject to change. Therefore, the lawyer should explain whether the order may be modified at another hearing, or whether the actions of the parties may affect how the order is carried out.C. Client decisionsThe Child's Attorney should abide by the child's decisions about the objectives of the representation with respect to each issue on which the child is competent to direct the lawyer and does so. The Child's Attorney should pursue the child's expressed objectives unless the child requests otherwise and follow the child's direction throughout the case.
Commentary
[1] The child is entitled to determine the overall objectives to be pursued. The Child's Attorney may make certain decisions about the manner of achieving those objectives, particularly on procedural matters, as any adult's lawyer would. These Standards do not require the lawyer to consult with the child on matters that would not require consultation with an adult client, or to discuss with the child issues for which the child's developmental limitations make it not feasible to obtain the child's direction, as with an infant or preverbal child.1. The Child's Attorney should make a separate determination whether the child has "diminished capacity" pursuant to Iowa Rule of Professional Conduct 32:1.14 with respect to each issue for which the child is called upon to direct the representation.Commentary
[1] These Standards do not presume that children of certain ages are "impaired," "disabled," "incompetent," or lack capacity to determine their position in litigation. Disability is contextual, incremental, and may be intermittent. The child's ability to contribute to a determination of the child's position is functional, depending upon the particular position and the circumstances prevailing at the time the position must be determined. Therefore, a child may be able to determine some positions in the case but not others. Similarly, a child may be able to direct the lawyer with respect to a particular issue at one time but not at another.2. If the child does not express objectives of representation, the Child's Attorney should make a good faith effort to determine the child's wishes and advocate according to those wishes as if the child had expressed them. If a child does not or will not express objectives regarding a particular issue or issues, the Child's Attorney should determine and advocate the child's legal interests or request the appointment of a Guardian ad Litem.Commentary
[1] There are circumstances in which a child is unable to express any positions, as in the case of a preverbal child. Under such circumstances, the Child's Attorney should represent the child's legal interests or request appointment of a Guardian ad Litem. "Legal interests" are distinct from "best interests" and from the child's objectives. Legal interests are interests of the child that are specifically recognized in law and that can be protected through the courts. A child's legal interests could include, for example, depending on the nature of the case: a special needs child's right to appropriate educational, medical, or mental health services; helping assure that children needing residential placement are placed in the least restrictive setting consistent with their needs; a child's child support, governmental, and other financial benefits; visitation with siblings, family members, or others the child wishes to maintain contact with; and a child's due process or other procedural rights.[2] The child's failure to express a position is different from being unable to do so and from directing the lawyer not to take a position on certain issues. The child may have no opinion with respect to a particular issue or may delegate the decision-making authority. The child may not want to assume the responsibility of expressing a position because of loyalty conflicts or the desire not to hurt one of the parties. In that case, the lawyer is free to pursue the objective that appears to be in the client's legal interests based on information the lawyer has and positions the child has already expressed. A position chosen by the lawyer should not contradict or undermine other issues about which the child has expressed a viewpoint. However, before reaching that point the lawyer should clarify with the child whether the child wants the lawyer to take a position, remain silent with respect to that issue, or express a point of view only if the party is out of the room. The lawyer is then bound by the child's directive.3. If the Child's Attorney determines that pursuing the child's expressed objective would put the child at risk of substantial physical, financial, or other harm, and is not merely contrary to the lawyer's opinion of the child's interests, the lawyer may request appointment of a separate Guardian ad Litem and continue to represent the child's expressed position, unless the child's position is prohibited by law or without any factual foundation. The Child's Attorney should not reveal the reason for the request for a Guardian ad Litem, which would compromise the child's position, unless such disclosure is authorized by the applicable ethics rule on confidentiality.Commentary
[1] One of the most difficult ethical issues for lawyers representing children occurs when the child is able to express a position and does so, but the lawyer believes that the position chosen is wholly inappropriate or could result in serious injury to the child. This is particularly likely to happen with respect to an abused child whose home is unsafe, but who desires to remain or return home. A child may desire to live in a dangerous situation because it is all the child knows, because of a feeling of blame or of responsibility to take care of a parent, or because of threats or other reasons to fear the parent. The child may choose to deal with a known situation rather than risk the unknown.[2] It should be remembered in this context that the lawyer is bound to pursue the client's objectives only through means permitted by law and ethical rules. The lawyer may be subject personally to sanctions for taking positions that are not well grounded in fact and warranted by existing law or a good-faith argument for the extension, modification, or reversal of existing law.[3] In most cases the ethical conflict involved in asserting a position that would seriously endanger the child, especially by disclosure of privileged information, can be resolved through the lawyer's counseling function, if the lawyer has taken the time to establish rapport with the child and gain the child's trust. While the lawyer should be careful not to apply undue pressure to the child, the lawyer's advice and guidance can often persuade the child to change a dangerous or imprudent position or at least identify alternative choices in case the court denies the child's first choice.[4] If the child cannot be persuaded, the lawyer has a duty to safeguard the child's interests by requesting appointment of a Guardian ad Litem. As a practical matter, this may not adequately protect the child if the danger to the child was revealed only in a confidential disclosure to the lawyer, because the Guardian ad Litem may never learn of the disclosed danger.[5] Iowa Rule of Professional Conduct 32:1.14 provides that "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" and "the lawyer is impliedly authorized under rule 32:1.6 to reveal information about the client, but only to the extent reasonably necessary to protect the client's interests."[6] If there is a substantial danger of serious injury or death, the lawyer must take the minimum steps necessary to ensure the child's safety, respecting and following the child's direction to the greatest extent possible consistent with the child's safety and ethical rules.4. The Child's Attorney should discuss with the child whether to ask the judge to meet with the child and whether to call the child as a witness. The decision should include consideration of the child's needs and desires to do either of these, any potential repercussions of such a decision or harm to the child from testifying or being involved in the case, the necessity of the child's direct testimony, the availability of other evidence or hearsay exceptions that may substitute for direct testimony by the child, and the child's developmental ability to provide direct testimony and withstand cross-examination. Ultimately, the Child's Attorney is bound by the child's direction concerning testifying.Commentary
[1] Decisions about the child testifying should be made individually based on the circumstances. If the child has a therapist, the Child's Attorney should consult the therapist about the decision and for help in preparing the child. In the absence of compelling reasons, a child who has a strong desire to testify should be called to do so.D. AppealsIf an appeal on behalf of the child is permitted, the Child's Attorney should consider and discuss with the child, as developmentally appropriate, the possibility of an appeal. If the child, after consultation, wishes to appeal the order, and the appeal has merit, the Child's Attorney should appeal. If the Child's Attorney determines that an appeal would be frivolous or that the Child's Attorney lacks the expertise necessary to handle the appeal, the Child's Attorney should notify the court and seek to be discharged or replaced.
Commentary
[1] The Child's Attorney should explain not only any legal possibility of an appeal, but also the ramifications of filing an appeal, including delaying conclusion of the case, and what will happen pending a final decision.E. Obligations after initial dispositionThe Child's Attorney should perform, or when discharged, seek to ensure, continued representation of the child at all further hearings, including at administrative or judicial actions that result in changes to the child's placement or services, so long as the court maintains its jurisdiction.
Commentary
[1] Representing a child continually presents new tasks and challenges due to the passage of time and the changing needs of the child. The Child's Attorney should stay in touch with the child, the parties or their counsel, and any other caretakers, case workers, and service providers throughout the term of appointment to attempt to ensure that the child's needs are met and that the case moves quickly to an appropriate resolution.F. End of representationThe Child's Attorney should discuss the end of the legal representation with the child, what contacts, if any, the Child's Attorney and the child will continue to have, and how the child can obtain assistance in the future if necessary.
Iowa. Stand. Prac. Lawy. Repre. Child. Cust. Case. IV