Lawyers and CASA in 2004
As reported in the legislative update last fall, Chapter 107 of the Texas Family Code (TFC) was substantially revised last session. The good news is that there are no major changes in what we have understood to be the roles of lawyers and guardians in child protective services cases. The bad news is that the language specifying the functions of attorneys and guardians in CPS cases raises some difficult new questions.
The lawyer is a lawyer, and we mean it.
An attorney ad litem is defined as “an attorney who provides legal services to a person, including a child, and who owes to the person the duties of undivided loyalty, confi dentiality, and competent representation.” TFC §107.001(2) (emphasis added). The attorney role includes ethical duties that are, in some respects, reflected in the new statute. Failure to abide by ethical duties may subject a lawyer to punishment or disbarment through the State Bar’s grievance procedures. An attorney is required, with few exceptions, to abide by a client’s decisions, Texas Disciplinary Rules of Professional Conduct (TDRPC) Rule 102(a). Even if a client lacks the ability to make completely competent decisions, the lawyer must attempt to work with the client to the extent possible, and let the client “reach conclusions about some matters affecting the clients’ own well being.” TDRPC Rule 103, comment 5.The Family Code instructs the child’s attorney to determine the child’s preferences, advise and provide guidance to the child, and then to “represent the child’s expressed objectives of representation and follow the child’s expressed objectives of representation during the course of litigation” unless the child is not able to form an attorney-client relationship, TFC §107.004. The attorney is also cautioned to “consider the impact on the child” in presenting the child’s case, TFC §107.004(5). The attorney is permitted to “substitute judgment” for the child if “the child cannot meaningfully formulate the child’s objectives of representation” in limited circumstances, TFC §107.008(a).
The Guardian ad Litem Role
The guardian ad litem is defined as “a person appointed to represent the best interests of a child.” TFC 107.001(5). The duty of a guardian is to elicit the objectives of the child, but not to be bound by them, TFC 107.002(b)(3). Except when the guardian is an attorney functioning in the “dual role,” the guardian is not bound by the ethical rules applicable to attorneys. That is not to say that the guardian is entitled to behave unethically, but several of the restrictions placed on lawyers by ethical rules do not apply to non-attorney guardians.What the Guardian Can Do
As noted above, the primary thing a guardian can do that a lawyer cannot is make decisions on what is in the best interest of the child without being bound in any way by the child’s expressed objectives. That is, the guardian may recommend that the child not go home even if the child expressly wants to go home, if going home would be against the child’s best interests.A guardian is entitled to testify, and may be compelled to do so, TFC §107.002(d). A lawyer, even a lawyer functioning in the “dual role” of attorney and guardian ad litem for the child, is prohibited from testifying, except in very limited circumstances, such as to prove up attorneys fees, TFC §107.002(e); §107.007(a)(4). A witness is required to testify on the basis of personal knowledge; the lawyer’s role is to explain and comment on evidence given by others, TDRPC Rule 308, comment 4.
A lawyer is prohibited from violating the attorney-client privilege by divulging without the child’s consent either the child’s statements or other information acquired in the course of representing the child, TDRPC Rule 105. A non-attorney guardian is free to report to the court any information acquired in the course of the case, regardless of the source of the information, although considerations of the relationship with the child may lead a guardian ad litem to avoid disclosing intimate conversations if the disclosure is not absolutely necessary.
A lawyer is prohibited from communicating with the parents in the case if they are represented by counsel, unless their lawyer consents, TDRPC Rule 402. Even if the parents are not represented, [the lawyer must ensure that the parents know the child’s attorney is not “disinterested” and that anything they say is not privileged and may be used against them, TDRPC Rule 403. A non-attorney guardian is free to interview any party to the case without obtaining the consent of the lawyers involved.
What the Attorney Can Do
An attorney can file pleadings on behalf of the child, such as motions for child support or to establish parentage.An attorney can call, examine and crossexamine witnesses to bring out facts or evidence the lawyer deems necessary to the case. A lawyer can argue and explain the legal issues in the case and urge an outcome that is supported by the facts and the law.
If the attorney deems the child to be incapable of “meaningfully [formulating] the child’s objectives of representation,” the lawyer should consult with the guardian ad litem and “present the child’s objectives of representation to the court based on the guardian ad litem’s opinion regarding the best interests of the child.” TFC §107.008(c).
