The Chief Judge Clarifies the Role of Attorneys for Children (NYSBA Family Law Review)06/27/2008
The amendment of the Rules of the Chief Judge effective October 17, 2007, added Rule 7.2 which describes the role of the "attorney for the child." These rules are intended to clarify the ambiguous office of the "law guardian" under New York law.
To appreciate this new rule, it is worthwhile to compare it with prior descriptions of the role of the law guardian that have been promulgated over the years by various officials and bar groups: "Law Guardian Definition and Standards" promulgated by Justice Jacqueline Silbermann, the Deputy Chief Administrative Judge for Matrimonial Matters and the Administrative Judge of the Supreme Court Civil Branch New York County;[i] the working definition of law guardians adopted by the Statewide Law Guardian Advisory Committee as cited by the Miller Commission;[ii] and five versions of "Law Guardian Representation Standards" adopted by the New York State Bar Association between 1992 and 2007.[iii]
Nomenclature: Rule 7.2 defines the role of the "attorney for the child" which, it says, "means law guardians." The Rule thus invents a new office that substitutes for and which is the equivalent of, but is not identical with, the statutory role of "law guardian" although, given the existing statutes,[iv] the phrase cannot be entirely avoided. This change echoes the language of the working definition of the role of the law guardian that the Statewide Law Guardian Advisory Committee has adopted. Both the Miller Commission and the Administrative Board have recommended the amendment of the statutes "to replace the term 'law guardian' with 'attorney for the child'"[v] The Rule also reflects the general conclusion that the ambiguous, if not inherently self-contradictory, obligation to act simultaneously as a child's lawyer and guardian no longer meets the still evolving job description of an attorney representing a child in family law litigation. "Guardians" protect the child's best interests. Lawyers advocate for goals defined by clients. Too often these roles are incompatible. Rules 7.2 implicitly suggests that clarifying the job title will help to clarify the duties of these attorneys.
Ethics: The Rule's discussion of ethics does double duty both by making a substantive point that attorneys for children have legally based ethical obligations to their clients and by emphasizing that they function in the role of attorneys, not guardians.
Underscoring the tip in the balance toward the attorney role, the Rule expressly says that attorneys for children are subject to all the same ethical rules that apply to other lawyers, drawing particular attention to the ethical obligation of the attorney for the child with respect to ex parte communications, confidential client communications, attorney work product, and becoming a witness in the litigation.[vi]
Beyond this, the Chief Judge's Rule emphasizes the lawyer's role through the explicit requirement that attorneys for children "zealously advocate" the child's position. The Statewide Law Guardian Advisory Committee sets the standard of advocacy at "diligently advocate"[vii] while Justice Silbermann's Rules require the law guardian to "advocate" for the child's position. The 2005 NYSBA Standards require the law guardian to "advocate a position on behalf of the child." This, the Standards say, imposes on the Law Guardian the same duty to advocate as is required of "other attorneys in the case."[viii] It is likely that in practice these are differences in semantics rather than substance. All of these expressions share the common requirement that the attorney advocate a position, although they vary in the level of intensity that the advocacy must take There is an alternative conception of the role of the child's attorney, which has roots in the 2005 NYSBA Standards and in Justice Silbermann's Standards, that does not require the child's attorney to advocate a "position" on behalf of a client in all cases. I will discuss this model further below.
Setting Goals of the Litigation: The Chief Judge's Rules recognize the special problem inherent in representing children and account for this problem by creating two separate rules for setting the litigation goals: (1) following the child's wishes; or (2) advocating a position selected by the attorney "that is contrary to the child's wishes." The Rule establishes a two-step test for deciding which method to employ. At both steps, the obligation falls on the attorney to make a substantive judgment. First, the attorney must assess whether the child is "capable of knowing, voluntary and considered judgment." If the answer is yes, the attorney must make the second assessment, whether following the child's wishes is likely to result in a "substantial risk of imminent, serious harm to the child."[ix]
If the child "passes" both tests, the attorney must "be directed by the wishes of the child, even if the attorney for the child believes that what the child wants is not in the child's best interests." If the child "fails" either test, the attorney "would be justified in advocating a position that is contrary to the child's wishes." The only restriction on this license is the duty of the attorney to "inform the court of the child's articulated wishes if the child wants the attorney to do so." This obligation implicitly obliges the attorney to explain to the child the attorney's assessment of the child's expressed wishes and, presumably, the reason the attorney as decided to go a different route. The Chief Judge's Rules dispense with the formal requirement under Justice Silbermann's Standards that the attorney report to the court his or her conclusion that the child is impaired.
There is significant overlap between the Chief Judge's Rules and Justice Silbermann's Standards. Under the latter, whether the attorney was required to advocate "the child's stated position" depended upon whether the attorney concluded that the child was "impaired." However, under Justice Silbermann's Standards the first portion of the definition of "impairment" focuses on "a child's inability to make knowledgeable, voluntary and considered judgment. . . ." So far, the categories in the Chief Judge's Rules and in Justice Silbermann's Standards are identical. But they do differ. Justice Silbermann's Standards include in the definition of "impairment" a child's inability "to work effectively with his/her attorney." This functional assessment is missing from the the Chief Judge's Rules. On the other hand, the Chief Judge's Rules allow the attorney to substitute his or her judgment for the client's if the attorney believes that following the child's wishes is likely to result in a "substantial risk of imminent, serious harm to the child." Risk assessment is not explicitly part of the attorney's job under Justice Silbermann's Standards although it surely could inform an assessment of the child's "considered judgment."
The 2005 NYSBA Law Guardian Representation Standards,[x] say that the attorney "should develop a position . . . in conjunction with the child. . . ." The standards employ a two step test. First, the attorney must assess whether the child is "too young." If so, the attorney "must . . . determine the child's interests independently," which presumably means the attorney is free to formulate his or her own position on behalf of the child. The standards do not tell us what "too young" means. Second, if the child is not "too young" "to articulate his or her desires and to assist counsel, the plan should be developed with the child's cooperation and agreement." These standards leave no room for qualitative assessments of the type contemplated in either the Chief Judge's Rules or in Justice Silbermann's Standards. If the child is not "too young" to articulate his or her desires, the attorney must employ a plan with which the child agrees even if the articulation of the desires suggests that the child is not making a knowing, voluntary, and considered judgment and even if the articulated desire would put the child at "substantial risk of imminent, serious harm."
The New York State Bar Association's Standards for Attorneys Representing Children in child welfare cases of June 2007[xi] includes a provision that would improve Rule 7.2. Those standards require the attorney to "be prepared to introduce evidence to support the attorney's position." [xii] The Commentary to the standard says that the attorney should substitute his or her judgment "only . . . if the attorney has objective factual evidence to support" his or her conclusion regarding the child's judgment. It is not unheard of for parents to criticize attorneys for children for failing to advocate for a child's stated wishes.[xiii] Thus, even if this is not required by rule, the attorney for the child would be well served if he or she could point to objective facts to support his or her position.
Options Available to the Attorney: The Chief Judge's Rules give the attorney two options. If the child "passes" the tests, the attorney "should be directed by the wishes of the child."[xiv] If the child "fails" the tests, the attorney "would be justified in advocating a position that is contrary to the child's wishes." Either way, however, the attorney must "advocate the child's position." The Miller Commission also concluded that the child's attorney "is expected . . . to take a position in the litigation . . . and to use every appropriate means to advance that position."[xv] Similarly, the 2005 NYSBA Custody Standards also require the attorney to "advocate a position on behalf of the client."[xvi] As an alternative to this "advocacy" model, Justice Silbermann's Standards articulate an "informational" model for the attorney to follow. Under those standards, if the child is "impaired," the attorney must "assist the Court in making an informed decision in the best interests of the child by ensuring that relevant evidence is obtained and presented to the Court, including evidence that otherwise might not be presented to the Court. . . ." This model relieves the attorney of the obligation to determine what he or she thinks is in the child's best interests, thereby insuring that that responsibility remains with the court. By allowing the attorney to take whatever position he or she wishes once the child has failed the Rule 7.2 tests, the Rule makes the selection of the law guardian critical to the outcome of the litigation since his or her position often carries extra weight in custody litigation.[xvii] This problem is compounded by the failure of the rules to require the law guardian to have objective factual evidence to support the attorney's conclusion that the child has failed the Rules' tests. It should be a goal of these rules to reduce, if not eliminate, the significance of the idiosyncratic opinions of attorneys for children. By excluding the "informational" model that Justice Silbermann's Standards include, the Chief Judge's rules increase the risk that the outcomes in custody cases will be unduly influenced by the particular views of the attorney for the children. This is an unfortunate result that is avoidable by a simple amendment to Rule 7.2 that incorporates the "informational" model.
Conclusion: Rule 7.2 improves the rules governing lawyers for children in family law cases by dispensing with the inherently ambiguous "law guardian" label and by providing clear rules governing when an attorney must advocate a child client's stated position. The Rule could be improved by authorizing these attorneys to take on an informational role when the attorney believes the child is unable to make knowledgeable, voluntary, and considered judgments rather than requiring the attorney to advocate for his or her own subjective view of the child's best interests. The Chief Judge's Rules could also be improved by requiring the attorney for the child to be prepared to introduce objective factual evidence to support the attorney's conclusion that the child's lack of judgment warrants ignoring his or her stated wishes.
[i] "Law Guardian Definition and Standards" promulgated by Justice Jacqueline Silbermann, Statewide Administrative Judge for Matrimonial Matters.
[ii] Matrimonial Commission Report at p. 43-44.
[iii] See "Law Guardian Representation Standards Volume II: Custody Cases" were published by the New York State Bar Association in September 1992; January 1994; November 1999; and June 7, 2005, and "Standards for Attorneys Representing Children in New York Child Protective, Foster Care, and Termination of Parental Rights Proceedings" published by the New York State Bar Association in June 2007.
[iv] FCA §249, entitled "Appointment of Law Guardian," requires or permits the appointment of a "law guardian" in specified Family Court proceedings.
[v] See the Miller Commission Report at p. 44. The Administrative Board of the Judicial Conference approved the recommendation on October 4, 2007.
[vi] Rule 7.2(b). See Naomi A. v. Russell A., 2008 N.Y. Slip Op 00981 (AD1 2008), which cites this provision and criticizes the trial court for making the law guardian, as an unsworn witness, disclose client confidences.
[vii] See Law Guardian Program Administrative Handbook published by the Second Department at p. 2, "Policy Considerations" (June 2007).
[viii] NYSBA 2005 Standard B-2, Commentary.
[ix] Rule 7.2 is almost identical to the working definition of the role of the law guardian adopted by the Statewide Law Guardian Advisory Committee except that the latter refers to a "risk of physical or emotional harm" whereas Rule 7.2 refers to "harm." It is unlikely that the greater economy of expression of Rule 7.2 was intended to restrict the meaning of "harm." The Chief Judge's Rules uses the word "serious," suggesting that a child's wishes may not be lightly ignored.
[x] Hereinafter "NYSBA June 2005 Custody Standards."
[xi] Hereinafter "NYSBA June 2007 Child Welfare Standards."
[xii] "Standards for Attorneys Representing Children in New York Child Protective, Foster Care, and Termination of Parental Rights Proceedings" published by the New York State Bar Association in June 2007, §A-4.
[xiii] See, e.g., Mars v. Mars, 19 A.D.3d 195, 797 N.Y.S.2d 49 (AD1 2005) (parent was ordered to pay the law guardian's fees, the children were old enough to articulate their wishes, therefore parent has standing to raise malpractice as an affirmative defense to the law guardian's fee application regarding his advocacy as opposed to guardianship). But see Bluntt v. O'Connor291 A.D.2d 106, 737 N.Y.S.2d 471 (AD4 2002); Bradt v. White, 190 Misc. 2d 526, 740 N.Y.S.2d 777 (SC, Greene Co. 2002); Lewittes v. Lobis, 2005 US App. Lexis 29232 (CA2 2005), all finding that law guardian has quasi-judicial immunity against damages claims. For a case raising the issue without asserting a damages claim, see Whitley v. Leonard, 5 A.D.3d 825, 772 N.Y.S.2d 620 (AD3 2004) (on appeal from custody order, mother contends that law guardian breached obligation by failing to advocate child's stated wishes).
[xiv] The use of the word "should" is curious. It is common to the point of being almost universal to express a mandatory obligation by using the word "shall." Justice Silbermann Standards employ the word "shall" in describing the attorney's duty in the same situation. The word "should" may suggest a lingering ambivalence on the part of the authors of these rules.
[xv] Matrimonial Commission Report at p. 43-44.
[xvi] The prior NYSBA Custody Standards did not include this requirement.
[xvii] See, e.g, Young v. Young, 212 A.D.2d 114, 628 N.Y.S.2d 957 (AD2 1995) (law guardian's "recommendations and findings" are entitled to "some weight"); Rosenberg v. Rosenberg, 44 A.D.3d 1022, 845 N.Y.S.2d 371 (AD2 2007) ("Recommendations of court-appointed evaluators and the position of the Law Guardian are factors to be considered and are entitled to some weight.") The cases do not similarly elevate the "position" or "findings and recommendations" of other attorneys.
Reprinted with permission from: Family Law Review, Summer 2008, Vol. 40, No. 2, published by the New York State Bar Association, One Elk Street, Albany, NY 12207.