Andrew Schepard and Theo Liebmann, in the March 11th edition of the New York Law Journal, listed three important changes in New York’s new Rules of Professional Conduct as they apply to lawyers representing children in Family Court. (I explored how the new rules would affect conflicts of interest here.)
Schepard and Liebmann’s main focus was on lawyers representing children and how the new rules would clarify an attorney’s guidelines with regard to when they may take a different position from that of their child client. They pointed out the current rule, as layed out by the Chief Judge in Administrative Order § 7.2, is substantially similar to the new Rule 1.14(b). The new rule states that “[w]hen the lawyer reasonably believes that the client (a) has diminished capacity, (b) is at risk of substantial physical, financial or other harm unless action is taken and (c) cannot adequately act in the client’s own interest, (then) the lawyer may take reasonably necessary protective action…” (emphasis and parentheses added) This “reasonably necessary protective action” includes substituting the law guardian’s judgment for the child’s judgment when those three requirements are met.
These rules set a high bar that a Law Guardian must meet before she may supplant her judgment for her child-client’s judgment. Schepard and Liebmann give the example of 10 year old Amkia P. (684 N.Y.S.2d 761 (Fam. Ct NY 1999)) who required medication for a life-threatening condition. She was in temporary Foster Care, but desired to return to live with her mother, who the Family Court believed would be not be capable of properly caring for her. Despite Amkia’s protestations, her Law Guardian advocated that she remain in temporary foster care.
Under the new rule, the Law Guardian in that case probably would have been allowed to substitute her judgmenet for the judgment of the client under those facts because Amkia appeared to be of diminished capacity (as a 10 year old), “at risk of substantial physical… harm,” and unable to take care of her own interests (again, she was only 10).
As Schepard and Liebmann point out, a Law Guardian in such a situation should think twice and three times before supplanting a client’s judgment with her own because a court will find that she should have advocated for home care to ensure that Amkia received the medicine she needed.
The new rules offer more guidance than attorneys may have had before, but they do not make these difficult judgment calls much easier.
Picture courtesy of George I. Kita.