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Minors' Counsel Workshop: A Day of Sharing the First Step From Diversity to Unity in Application

By Frieda Gordon, CFLS

Los Angeles County

On May 18, 1996, an historical event took place at a lovely restaurant in idyllic San Juan Capistrano near the beach in Orange County. Over forty judges, lawyers and therapists gathered together from all over the state to share their experiences in custody cases where an attorney has been appointed for a minor. Far from simply a comparison of war stories, this was a brainstorming session geared towards establishing statewide guidelines and protocols for the appointment of minor's counsel, formulating the qualifications for minor's counsel and outlining the duties and restrictions for minor's counsel.

This gathering was long the project of a nucleus of attorneys primarily practicing out of Los Angeles County, who had experienced the frustrating and conflicting appointments as minor's counsel which seem to be uniformly common throughout the state. After nearly two years of monthly meetings which focussed upon the establishment of guidelines and procedures for the creation of a panel of children's attorneys in Family Law Court, a training program for applicants and a list of minimum qualifications which would be prerequisite to the acceptance of minor's counsel appointments in Los Angeles County, it became evident that all of that effort would be for naught without a clarification of the role of minor's counsel as advocate, guardian ad litem or a hybrid of both.

Thus, the fun began trying to assemble data from various jurisdictions, both in and out of the State of California. It became clear that a dialogue between experienced litigators, mental health professionals and judicial officers in the custody arena could shortcut all of our efforts and point us towards realizing our goal of identifying the changes which clearly need to be made and how and where those changes should be implemented.

Meanwhile, the daunting nature of the commitment to forming a Minors' Counsel Panel pointed to the enormity of the task at hand. In order that such a list of qualified attorneys could be provided to the judicial officers in Los Angeles County who, in ever-increasing numbers, were requesting such names, we were hard-pressed to find an institutional sponsor to administer the program. After much debate and discussion, despite the complexity of the job, the Los Angeles County Bar Association Family Law Section Lawyer Referral and Information Service has recently agreed to develop a sub-category to accommodate our panel of attorneys who wish to represent children.

Although, to some extent the details of such a program would be better left to individual counties, it appears evident to the persons attending the workshop that some minimum qualifications and duties and protocols for appointments should be uniformly utilized throughout the State. Therefore, the group preliminarily discussed amendments to the Family Code and suggested other changes to the California Rules of Court which would make life quite a bit easier for lawyer and judicial officer alike. It is anticipated that, by the time the next edition of the ACFLS Newsletter hits the press, the suggested amendments will be published for the purpose of soliciting comments by bar members prior to submission to a legislator for sponsorship as a Senate or Assembly Bill.

One of the outcomes of the day-long workshop was a better understanding of the nature of the role of minor's counsel in the various counties represented at the meeting. For example, in San Diego, the Superior Court judicial secretary administrates the panel of qualified attorneys from which the judicial officers choose three. The attorneys or parties have the opportunity to eliminate one, leaving the remaining candidate to be appointed. The Court in San Diego County commonly makes an order at the first hearing that a wage assignment be issued for payment of attorneys' fees to the child's attorney. So there is no confusion, the basic attorney-client conflict of interest rules apply. The attorney does not act as guardian ad litem.

In San Bernardino County, a budget exists to pay two or three contract attorneys, who bid on their wages and can carry hundreds of clients at one time. In Victorville, the attorneys are Brian Watson and Anne Lewis. With a budget of $58,000 per year, they only give between $500 and $750 per case. In Central San Bernardino, Mickey Lawson receives sometimes forty cases per month. They have a private investigator who is also paid by the County, who makes the home visits and accomplishes the drug evaluations. Usually, they are members of the Sheriff's Department and have criminal investigations backgrounds, not social work or psychology backgrounds.

In Bakersfield (Kern County), the attorneys bill the County and the County bills the parties somewhere between $45 and 75 per hour. The attorney is given an office at the courthouse in San Bernardino, in Kern County, the attorney often cannot afford an office and simply travels from court to their clients' homes.

It is generally agreed upon that the child's attorney in custody matters should be treated as an extension of the State, with certain immunities, which will allow them to do their job without the real threat of being sued by either or both parents. There are currently pending in San Bernardino several multi-million dollar lawsuits against the contract attorney, which have no place in Family Court. The thought was raised that Family Court should be a confidential proceeding similar to Dependency Court. Taking that thought further, perhaps the attorney for the child should be deemed a "friend of the Court" paid for, in part, with federal funding, at least with regard to enforcement. This would also permit access to the Juvenile Court records without the necessity of bringing a motion to review the file. In San Diego County, the Presiding Judge of Juvenile Court can make a special order to allow access to the minor's file to the family law attorney, who then can review the file for the purposes of determining whether he or she needs to make a motion for the records.

Annual recertification is also a common requirement for children's attorneys. Already in some counties, such as San Diego, the attorneys must have some training in early childhood development, educational needs, attention deficit disorder and other special needs. One hour of psychological training per year is mandatory. Exceptions are made for those attorneys with special qualifications, such as multiple language skills or degrees, to the minimum requirements. Removal issues are State Bar regulated.

In Riverside County, Indio practitioner Aurelia Wick explained that there is no money from the County to pay for minor's counsel. She questioned whether there is an independent right to counsel for a minor child in a custody dispute and suggested that the legislature needs to assist in allocating funding. Whereas, in Pomona, the attorneys created a wonderful program for appointment of minor's counsel, and formed a cohesive group which regularly meets to discuss problems associated with the program, the desert courthouses do little to further the cause to provide independent counsel for the children caught in the middle of their parents' nightmares.

Since the Office of Family Court Services has received a grant from the Judicial Council to train attorneys in this area of practice, the need seems to be addressed from the hind end, just as we in Los Angeles County began addressing it. Before lawyers can be trained and judges given guidelines for appointments, the parameters of the rights and obligations of the appointed attorney needs to be clarified on a state-wide basis. Funding would be better spent assisting local bar associations as well as the State Bar in collecting data, researching the results of the local protocols presently in place which may work or not, drafting legislation to correct the loopholes in the law and setting up computerized data bases of information which would help all of those concerned.

San Diego is putting on an advanced training program in September of this year. The consensus is that the State and each County must have a dedicated budget to this task of training and appointing counsel for minor children. At a minimum, the attorney should have the resources to make a home visit where appropriate and, of course, meet the client.

The risks involved where judges and lawyers have unbridled discretion are too great. If mis-used, not only will government money be misspent, but the victims will be those voiceless clients we are intending to help. The best interests of the child can only be properly served where the order clearly states what the role of his or her attorney is, i.e., interviewer, creator of parenting plan, investigator, reporter, etc. The attorney needs to be an advocate for the expressed preference of the child, who also should independently provide evidence of the facts to the Court without having to make recommendations to the Court. Thus, the attorney can act as a collaborator and consultant with the Court without violating any ethical duties to her or his client.

The County needs to be the bill collector, similar to collection of child support arrearages. There is an inherent conflict of interest if a parent is ordered to pay the child's attorney and may or may not be abiding by that order. Attorneys have enough to worry about not to be also involved in the financial issues of payment. They should be the exclusive holder of the privileges, not the parents, who should not be allowed to waive the privilege. Children should be permitted to petition the Court. In Kern County children over seven years of age must go to mediation. There, the attorneys act as evaluators.

The use of special masters must be explored as a positive addition to or alternative to private counsel for minors, in lieu of guardians ad litem. Section 3152 of the Family Code should be amended to provide in the initial orders to make available to counsel the Child Protective Services reports without noticed motion. In Ventura county, only two attorneys are ever appointed minor's counsel. If necessary, East County transfers the case to Central. The attorneys never meet with their clients.

If attorneys are acting as mediators, there should be expressed ethical guidelines regarding the non-confidentiality of the mediation. Reports of intimidation or coercion should be brought to the attention of the Court. In Stanislaus County, there are six attorneys regularly appointed by the Court. There, the Rules for Professional Responsibility replace guidelines for representation of minors. All counties agree that minor's counsel should be permitted in all ancillary proceedings. In Orange County, the attorney for a minor child functions in a dual role, as the voice of the child and as a Friend of the Court. They can present evidence to the Court once it gets to trial, but otherwise acts as advocate for the child. The child's wishes and all other evidence and information must be provided to the Court. The Court permits direct access to all DCS reports and police reports, as in Dependency Court. All agree that if the parents are made fiscally responsible at the outset and have to pay immediately, as well as on a monthly basis, cases get settled more quickly. There should be the same methods of collection as in government support collection cases, such as tax intercept programs and D.A. assistance.

The bottom line is that the attorney should not be the decision maker, even though often times she is. Most cases will resolve themselves if the client is advised about adverse interests. Counsel can suggest appointment through the parties' or the child's declaration. Perhaps there should be (800) numbers for agencies or private counsel where the child or parent can call for information. such a system is likely to bring about a 60-70 percent reduction in custody trials. If money speaks, then funding should be around the corner for us.

More and more, this area of practice is becoming a sub-specialty in family law. Everyone agrees that the liability issues of endorsing panel attorneys is becoming enormous. Immunity is a must if the best and most dedicated attorneys are to continue to practice in this area of law, often for a mere $45.00 per hour. Continued dialogue should be maintained, not only within a particular area, but cross-jurisdictionally. Perhaps brown-bag lunches could be arranged for lawyers on a rotational basis in different places on weekends to keep up the process of refinement of the special area of law.

I would like to express the gratitude not only of myself, but of all the participants and persons interested in making this area of practice less frustrating, more productive and hopefully less stressful and more financially lucrative, to members of my committee, namely, Leslie Shear, who, with the assistance of her husband, worked long and hard to produce the workshop materials and prepare the workshop agenda, Eric Munson, whose invaluable ideas, time and skill lent a unique professionalism to our endeavor, Carolyn Makupson, who, also with her husband's assistance as well as the assistance of Debra Frank, worked hard to gain sponsorship among local bar associations. Thanks as well to Dianna Gould-Saltman, who found the charming and user-friendly spot for our meeting, to Heidi Tuffias, who helped draft the schedule, and to June Adler, whose knowledge and experience gave insight to the problems we were addressing. Last, but certainly not least, we all express our appreciation to Judge Isabel Cohen, of the Los Angeles Superior Court, who kept us focussed when we seemed to drift with the currents, who kept us afloat, when we felt burdened with red tape and whose bright spirit and kind heart made the enormous task not only seem doable, but worthwhile.