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Legally Speaking

 

Issue: February, 2009
Author: John M. Burman

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Ethically Speaking - Juvenile Court, Part IV - The Public Defender’s Rules and Regulations for the Guardians Ad Litem Program

Becoming and acting as a competent guardian ad litem (“GAL”) in any kind of case is difficult. Such persons “should have a combination of knowledge, training, experience, and ability which allows them to effectively discharge their duties” to the children they are appointed to represent. That combination is hard to achieve and maintain, and four Ethically Speaking columns in the Wyoming Lawyer can only scratch the surface of the necessary legal knowledge and skills required to be a competent GAL. Fortunately, Wyoming’s Children’s Justice Project is planning to publish a handbook for GALs this year which should provide much more comprehensive guidance. In the meantime, knowing about the Public Defender’s new Rules and Reegulations for the Guardians Ad Litem Program (“GAL Rules”) is critical for lawyers who act as GALs, or otherwise participate in, juvenile courts or termination of parental rights (“TPR”) cases that result from juvenile cases.


The GAL Rules: An Overview
The GAL Rules establish the qualifications and training requirements for GALs to participate in the GAL Program, as well as the standards they must meet in performing their function, and the procedures to be followed in submitting bills and getting paid for providing GAL services. As not just any lawyer can act as and get paid by the GAL Program, lawyers need to know how to qualify to both provide GAL services and get paid for doing so.

The GAL Rules were adopted by the Wyoming Public Defender’s (“PD”) Office on October 30, 2008, after two rounds of public comments. They were subsequently signed by the Governor and all steps necessary for them to become effctive have been taken (as rules promulgated pursuant to the Wyoming Administrative Procedure Act, the GAL Rules have the force and effect of law.). They replace emergency GAL rules that were previously in effect. The GAL Rules also effectively replace Uniform Rule for District Court 106, which governed the GAL Program during the time it was administered by the Wyoming Supreme Court, before it was transferred to the PD’s Office. The GAL Rules are divided into three chapters, each of which is discussed in detail below.


General Provisions
Chapter 1 contains “General Provisions.” Section 2 specifies the “Purpose and Applicability” of the rules and the GAL Program they govern. “The Purpose of the Guardians Ad Litem Program (the Program) is to contract with, supervise and manage attorneys providing legal representation as guardians ad litem” in Child Protection, CHINS (Child in Need of Supervision), and TPR cases. The Program “does not apply to a juvenile delinquency proceeding except that an attorney appointed to serve only as a guardian ad litem . . . may . . . be eligible for compensation under the Program.”

Section 4 contains a statement of the Program’s “Policy.” Among other things, several guidelines from the NACC (National Association of Counsel for Children) Recommendations for Representation of Children in Abuse and Neglect Cases are adopted. “The Program and Program GALs shall embody these [NACC] policies and strive to fulfil these ideals.” “Each child,” according to the NACC, “is a unique human being . . . vested with certain fundamental rights, including a right to physical and emotional health and safety.” Accordingly, “[e]ach child subject to a child protection proceeding must be provided an independent, competent and zealous attorney” with appropriate training and ample time. Such representation “is critical to ensuring the timeliness of [juvenile court] proceedings.” In addition, such attorneys “play a critical role in advocating for permanency [for children] . . . .”

To competently fulfill their role, the lawyers who act as GALs “should have a combination of knowledge, training, experience, and ability which allows them to effectively discharge their duties” to the children they are appointed to represent. Finally, in accordance with the 2008 transfer legislation, “[t]he State Public Defender . . . is the final authority in administering” the GAL Program.”

The GAL Rules contain a definitional section, the most important definition of which is “best interests” (though the Wyoming Rules of Professional Conduct state that a GAL represents “the best interests” of the child, that term is not defined in those rules). “Best interests” means:

[A] determination of the most appropriate course of action based on objective considerations of the child’s specific needs and preferences. The determination of the best interests of the child should be based on objective criteria as set forth in the law that are related to the purposes of the proceedings. The criteria should address the child’s specific needs and preferences, the goal of expeditious resolution of the case so the child can remain or return home or be placed in a safe, nurturing, and permanent environment, and the use of the least restrictive detrimental alternatives available. This determination must include the presumption that it is in the child’s best interest to be with his or her parent(s), as outlined by the Wyoming Supreme Court in In re Guardianship of MEO, 2006 WY 87, 138 P.3d 1145 (Wyo. 2006).

Section 8 of chapter 1 is entitled “Program Administration.” It notes that the PD’s Office “[s]hall, in its discretion, set standard fee schedules” for GALs. And, in a departure from previous practice in which a juvenile court appointed a specific lawyer as GAL, when a court appoints the GAL Program, “the Program shall assign an attorney with whom it has contracted to serve as a guardian ad litem.”

Although the PD’s Office is the “final authority” over the GAL Program, it is to “ensure [GALs’] advice remains independent of private providers and that their recommendations consider cost impacts and savings to the state of Wyoming.”

As the PD’s Office might be appointed to represent an alleged perpetrator of child abuse, who happens to be the custodian of a child involved in a child abuse case, and also be appointed to be the GAL for the child, conflicts of interest are likely to arise. In recognition of that, the office is “to establish agency protocols to determine and resolve conflicts of interest. These protocols shall ensure that the Program will be, and will remain, separate and distinct from the Public Defender's Criminal Defense and Juvenile Delinquency division(s).”

Lawyers may act as either “full-time” or “part-time” GALs. A full-time GAL may not engage in any other private practice, “except to complete business pending at time of his/her [full-time] employment or contract.”

Chapter 1 also addresses confidentiality, saying that:

All information provided to the Program staff and GALs shall be confidential and shall not be released or admitted in a court proceeding unless otherwise ordered by a court. In no event shall communications between a child and the child’s GAL be admitted, without the child’s informed consent, even if that information has been provided to Program staff.”

If a child “is unable to give ‘informed consent’ to such a release of privileged communication, the decision of whether to waive the attorney-client privilege is reserved to the GAL.”

Ethically, communications between a lawyer acting as a GAL and a child are confidential under Rule 1.6(a) of the Wyoming Rules of Professional Conduct. Making information ethically confidential does not, however, make it exempt from discovery or inadmissible in court. That can happen only if the information is protected by an evidentiary privilege (the Wyoming Rules of Evidence allow for the creation of an evidentiary privilege “by these [Rules of Evidence] or other rules promulgated by the Supreme Court of Wyoming.” As the GAL Rules were promulgated by the PD, not the Wyoming Supreme Court, they may not create such a privilege. In the absence of a statute or Supreme Court rule there may still, however, be a privilege: “the privilege of a witness . . . shall be governed by the principles of the common law . . . .”. In addition to the rule provision noted above, which states: ”[i]n no event shall communications between a child and the child’s GAL be admitted, without the child’s informed consent . . . ,” two evidentiary protections appear to apply. They are the attorney-client privilege and the work product doctrine.

The attorney-client privilege in Wyoming is defined by statute, and it applies to “communication[s]” between an “attorney” and the attorney’s “client.” The statute is regrettably spare, leaving many questions unanswered. When it comes to GALs, the statute’s applicability is unclear, at least from the plain language of the statute. On the one hand, the problem for GALs is who is the client (with whom an “attorney” may freely communicate)? The Rules of Professional Conduct say that a GAL “represents the best interests” of the child. On the other hand, the Wyoming Supreme Court has said that a GAL “is the attorney for the minor whom he is appointed to serve.” Given that holding, the attorney-client privilege should apply to communications between a GAL and a child whose best interests the GAL is appointed to represent, an issue which has been the source of debate around the country. Where, as in Wyoming, the GAL is also acting as the lawyer for the child (the “hybrid” approach), the better view, the one which furthers the purpose of the privilege, to “encourage full and frank communication,” is that the attorney-client privilege should apply to communications between the child and the child’s GAL.

The work product doctrine should also apply. The doctrine is codified in the Wyoming Rules of Civil Procedure (as noted below, the work product doctrine applies in criminal cases, too, so it doesn’t matter whether juvenile cases are considered civil, criminal, or something else; the doctrine should apply). Rule 26(b)(4) puts limits on the discoverability of trial preparation materials in civil cases, both those prepared by lawyers and those prepared by experts. With respect to the former, materials prepared in anticipation of litigation by a lawyer, such materials are not discoverable unless the party seeking discovery can show (1) “substantial need” for the information; and (2) the party is “unable without undue hardship to obtain the substantial equivalent of the materials . . .” Even if that showing is made, “the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney . . .” The work product doctrine also applies in criminal cases. So whether a juvenile action is considered to be civil or criminal, or something else, the doctrine should apply. And once again, as a GAL in Wyoming is also acting as the lawyer for the child, the work product doctrine should apply. Finally, the discoverability of experts’ opinions should be the same as the discovery of such opinions in any civil case.

Standards, Certification and Training
Chapter 2 articulates standards for GALs as well as certification and training requirements for them. Early on, the rules state that “[n]othing herein shall be applied in a way that limits . . . the child’s right to counsel as required in a delinquency action.”

Since a GAL in Wyoming fills both the roles of GAL and lawyer for the child, he or she “must be admitted to practice law in Wyoming . . .” (GALs in some states are not lawyers. It is not possible, however, for a non-lawyer to fill the “hybrid” role as that role involves the practice of law.)

As noted earlier, the GAL Rules adopt the NACC’s “Attorney Guardian ad Litem Hybrid Model . . .” Under this approach, the GAL “represent[s] the child and . . . the child’s ‘best interests.’” Accordingly, the GAL “is required to consider the child’s wishes and preferences when determining the child’s best interests but is not bound by them as in the traditional attorney-client relationship.” If the GAL does not agree with the child’s wishes, however, “both the child’s wishes and the basis of the attorney guardian ad litem’s disagreement must be presented to the court.”

Merely being a Wyoming lawyer does not qualify one to be a GAL in the GAL Program. In addition, a GAL must be “certified by the [Public Defender’s] Office to furnish guardian ad litem services and . . . have contracted with the Office to provide such services.” To become a member of the GAL Panel maintained by the PD’s Office, a lawyer must “meet the standards for guardians ad litem established by the Office.” Those standards are to “ensure their advice remains independent of private providers and that [GALs’] recommendations consider cost impacts and savings to the state of Wyoming.”

In addition to “conditions imposed by order of the court . . . . ,” a GAL “shall possess the knowledge and training necessary” to act as a GAL. The GAL “shall be subject to all of the rules and standards of the legal profession.” Further, the GAL “shall specifically:”


  1. “Establish and maintain competence of the applicable legal and ethical standards . . . , including . . . NACC Recommendations . . . :”

  2. “Be familiar with recognized standards and best practices . . . including . . . the American Bar Association Standards . . . and NACC Recommendations . . . ;” (those standards are available on the PD’s GAL website (gal.state.wy.us);

  3. “Due to the high co-occurrence of child abuse/neglect and domestic violence, be familiar with the dynamics of domestic violence, the role of co-occurrence between child and domestic violence , the barriers to leaving a violent relationship and how domestic violence may affect children . . ;”

  4. “Conduct a full and independent case investigation . . . which shall include, at a minimum:

    a. Obtaining information about the child and the circumstances that led to the filing of the petition . . .;
    b. Meet with and observe the child’s interactions with caregivers . . . even if a Court Appointed Special Advocate . . . is . . . involved in the case;
    c. Personally interview the child . . . :
    d. The failure of the GAL to fulfil the requirements of (a.), (b.) and (c.) above will result in non-payment . . . .”

  5. “Insofar as is practical counsel the child concerning the subject matter of the litigation, the child’s rights . . . ;”

  6. “Prior to making a recommendation for out-of-home placement . . . research and consider alternative community programs, treatments and family preservation services . . . ;”

  7. “Independently identify and advocate for appropriate family and professional services . . . ;”

  8. “Participate in depositions, negotiations, discovery, pretrial conferences, multi-disciplinary team meetings and [court] hearings;”

  9. “Independently verify and advocate for timely resolution and permanent resolution (unless compelling reasons to the contrary) of the case;”

  10. “Make independent recommendations . . . ;”

  11. “In recognition of federal law encouraging the presence of children at hearings . . . children should attend all significant court hearings . . . . A decision to exclude the child . . . should be made based on particularized determination that the child does not want to attend, is too young to sit through the hearing, would be severely traumatized . . . or for other good reason . . . ;”

  12. “After the hearing, review the court’s order to ensure the written orders conform to the court’s oral orders . . . ;”

  13. “Monitor and advocate for timely implementation of the case and/or permanency plan . . . ; and”

  14. Recognize that the obligation of the attorney guardian ad litem to the child is a continuing one and . . . includes any appeals . . . . In the event of an appeal, the GAL shall participate . . . .”

A GAL’s failure to comply with the above tasks “may result in non-payment of bills and/or termination of the [GAL] contract.”

Paragraph (d) addresses a GAL’s responsibilities regarding multi-disciplinary teams (“MDTs”). “A GAL shall attend, in person, all pertinent . . . [MDT] meetings/hearings . . . [and] shall participate in the child’s best interests. . . .” If a GAL cannot attend “in person or by telephone, he/she shall submit written reports and recommendations . . . . Any failure to attend a pertinent MDT meeting/hearing may result in non-payment of bills and/or termination of the [GAL] contract.”

Section 4 of Chapter 2 addresses “[q]ualifications and training.” The PD’s Office will contract with or employ only lawyers who meet “certain minimum qualifications in addition to training requirements set forth by these Rules.” The Rules establish both initial and continuing training requirements.

Initial training must consist of “ten (10) or more live hours of child related training . . . .” After the initial training, a GAL “shall obtain at least five (5) live hours of continuing legal education . . . relevant to an appointment . . .” as GAL. These continuing training requirements are not in addition to Wyoming lawyers’ existing fifteen hours of required hours of CLE per year. The PD’s Office also “has the discretion to require training in addition to” the five hour requirement.

Section 5 of Chapter 2 addresses the process of lawyers applying to be GALs under contract with the PD’s Office, and that office’s selection of qualified GALs, as well as the “factors” to be considered by that office in contracting with qualified lawyers. Subsection (b) specifies that a program GAL selected for a case “must have no conflicts of interest . . . .”

When a court appoints a GAL from the PD’s GAL Panel, “the [GAL] Program is deemed to have been appointed.” “It is recommended that the court’s order will set forth: the role of the guardian ad litem; the specific duties to be performed by the guardian ad litem . . . ; deadlines for the completion of the duties . . . ; and the duration of the appointment.”

“In order to ensure that [GALs] have adequate time” to perform their duties, the GAL Rules establish caseload limits. A part-time GAL “shall not carry more than forty (40) juvenile court cases . . . a full-time [GAL] shall not carry more than eighty (80) juvenile court cases . . . .” Furthermore, “[e]ach GAL’s caseload will be monitored by the Director [of the GAL Program] . . .”

Most juvenile and TPR cases involve experts, and the GAL Rules address the issue of a GAL obtaining one. First, the GAL is to see if DFS (the Department of Family Services) will pay for the expert. Second, if DFS will not pay, the GAL may ask the GAL Program Director, in writing, and then the Director “shall . . . determine which requests are reasonable and shall approve or deny on that basis.”

The denial of a request that a GAL believes reasonably necessary (but the Director does not) to represent the best interests of a child will put the GAL in a difficult ethical bind, as lawyers’ ethical obligations do not vary depending on whether someone will pay for reasonably necessary services. In the criminal defense context, for example, the Public Defender’s refusal to pay $20,000.00 of costs to investigate potentially mitigating factors “forced . . . [trial counsel] to conduct the battle with one hand tied behind his back.” That refusal to pay for expenses was a denial of Mr. Harlow’s right to the effective assistance of counsel, and one of the reasons Judge Brimmer reversed the conviction in the Harlow case. (While Harlow was a criminal case, the Sixth Amendment right to counsel also applies in those juvenile cases in which a child may be detained.) Ethically, there should be no difference between a case in which a child may be detained, and a child protection case. Further, a TPR case involves a parent’s fundamental rights. A GAL should be as zealous in a juvenile or a TPR case as a criminal defense attorney. Similarly, an insurance company’s refusal to pay for legal services deemed reasonably necessary by a lawyer under contract with that company does not eliminate the lawyer’s ethical duty to provide competent representation.

Fulfilling one’s ethical obligations to a child may involve disregarding the denial of expert services by the Director and asking the court to approve the request. Ultimately, in either a juvenile or a TPR case, a GAL has an ethical and a legal obligation to ensure that the record contains enough evidence to support the GAL’s recommendation or closing argument, whichever is appropriate. If the only way to provide that evidence is to get an independent expert, that is the GAL’s obligation, notwithstanding the rule that gives the GAL Program Director authority to deny requests for experts that are not deemed by the Director to be reasonable.

Chapter 3 addresses the procedures for submitting claims for and being paid for providing GAL services. Those procedures do not need to be recounted here, but a GAL should consult and follow them.


Summary
Acting competently as a GAL in a juvenile or TPR case requires legal knowledge and skills that are generally not taught in law schools, and these four “Ethically Speaking” columns about juvenile court can only provide a cursory overview of what one needs to know. A lawyer who wishes to act as a GAL, therefore, has to make the effort to obtain that knowledge and those skills through post-law school education.

Children in Wyoming who become involved in the juvenile court system (and the lawyers who are appointed to represent their best interests as GALs) are lucky. The GAL Program in Wyoming is one of the better programs in the country. Not only do children in the system receive GALs, lawyers who wish to devote part or all of their practice to working as GALs can get paid for doing so.

The change in Wyoming from five years ago, when children in most of the state did not have the benefits of trained (and paid) GALs in juvenile court, is remarkable, though the benefits (to children) may not be seen for years. Even then, the successes will often be unseen–instead of becoming dysfunctional adults who spend much of their lives incarcerated, juvenile court “successes” will be children who become productive adults and are not involved in the legal system. It will always be difficult to measure the benefits of a GAL program. To those who spend years in the system, however, and who see even one child make it, the benefits are enormous. To save a child makes it all worthwhile.


John M. Burman is the Carl M. Williams Professor of Law & Ethics and teaches professional responsibility at the University of Wyoming College of Law. If there are issues you would like to see addressed in this column, Professor Burman may be reached by e-mail at jmburman@uwyo.edu.

The views and opinions expressed and included in "Ethically Speaking" are those of the author only and do not constitute an opinion, finding or viewpoint, official or unofficial, of the Wyoming State Bar or the Board of Professional Responsibility.



Copyright © 2009 – Wyoming State Bar

     

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