Can a child’s attorney be forced to disclose privileged information?

That’s the question pending in the Third DCA. According to buzz around the courthouse (which I’ve had to sit in for a while these past 48 hours), a certain youth in a certain courtroom had gone “on run”, a term I despise for what it implies and what it omits. The only person who the youth trusted was the youth’s attorney, and the youth disclosed his location to the attorney and forbade the attorney from telling anyone (note: I don’t know the youth’s actual gender). According to the attorney, the youth did not appear to be in any danger. The Department, however, still (understandably, from their position) wanted to know the youth’s location so that they could attempt to bring him back into care. The attorney refused to disclose the information, based on attorney-client privilege.

That set up the show-down. Motions flew, responses issued, and argument was heard. In the end, the trial judge issued a reportedly very long and “very smart” order denying DCF’s motion to compel disclosure. The gist of the ruling: (1) client identification and address is normally not privileged, unless it is specifically requested to be kept secret, which it was here; (2) none of the standard exceptions to privilege apply; and (3) there is no “dependent child” or “best interests” exception to privilege; therefore DCF’s motion was denied.

DCF and GALP have appealed. It is now being briefed in the Third DCA.

This is obviously a hugely defining moment for attorneys for children in Florida. Because of the trust that the youth had in his attorney, at least one responsible person was still in touch with him and knew where he was. At least one person could get him on the phone and counsel him to come back in or talk him through how to deal with whatever he’s facing wherever he is. That inviolable trust, which has been considered the bedrock of a functional legal system for centuries, is in jeopardy.  This is a potential derogation of rights that should concern any attorney. If the government can force an attorney to disclose information based on its determination of  “your client’s best interests”, then there is no privilege at all.

“I’m not telling you to make the world better”

“I’m not telling you to make the world better, because I don’t think that progress is necessarily part of the package. I’m just telling you to live in it. Not just to endure it, not just to suffer it, not just to pass through it, but to live in it. To look at it. To try to get the picture. To live recklessly. To take chances. To make your own work and take pride in it. To seize the moment. And if you ask me why you should bother to do that, I could tell you that the grave’s a fine and private place, but none I think do there embrace. Nor do they sing there, or write, or argue, or see the tidal bore on the Amazon, or touch their children. And that’s what there is to do and get it while you can and good luck at it.”

― Joan Didion

Fixing shelter representation

One of my three readers wrote separately to note that the 72-hour hearing is not the only possible solution to the shelter representation requirement. The reader reports that Broward defense attorneys take turns doing shelter duty. All shelters are handled by one judge for the week, and attorneys rotate being present for them. That’s an idea that requires only administrative changes at the local level.

Another possible solution would be to alert the next attorneys on the wheel about shelters so that they can be there. This is less fair because shelters are by definition add-ons, and you can’t always clear your schedule so easily. Also, you never know which parents will and won’t show up at a shelter, so you won’t know how many wheel attorneys to invite. Attorneys would have to forego other work just to be present for a possible non-appointment.

A third solution, of course, is to stop giving parents attorneys altogether–you could call it the Super Limited Registry. Or the Undefined Registry, in that when you take x number of parents and divide them among zero attorneys the results are mathematically undefined (and morally indefensible).

Good Cause has a Shelf Life When Ordering Psych Evals

From J.B. v. M.M., — So.3d —-, 2012 WL 2913287 (Fla. 4th DCA 2012):

While we acknowledge that “past conduct” may be taken into consideration when determining whether a parent has been able to meet the needs of the child, the information relied upon regarding the mother’s alleged inability to parent her daughter is over eight years old. Id. The child is now ten. Mental illness, alone, is insufficient to demonstrate the good cause required to order a psychological evaluation. See In re T.D., 537 So.2d 173, 175–76 (Fla. 1st DCA 1989) (finding, in part, that where there were no findings of abuse, abandonment or neglect, significant mental deficiencies by the mother were not enough to predicate a finding of prospective neglect in parental rights termination). Where there is scant, if any, evidence that the child is at risk of abuse, abandonment or neglect, beyond the mother’s mental illness, we find that the court departed from the law in ordering her evaluation.

 

Parents still get counsel at shelter hearings

The case is G.W. v. Department of Children & Families, — So.3d —-, 2012 WL 2947772 (Fla. 3rd DCA 2012). The father appears at his shelter hearing; he’s appointed counsel, an attorney who is understandably not present at the time; and his child is sheltered then and there. He’s sent off. This happens every day at just about every shelter hearing in the state. The Third DCA says, again, that you can’t do this. Of course it took three months to issue the opinion, so a lot of good it did that father.

The fix to this problem is the 72-hour shelter hearing, which is already allowed by law, but should be required:

The shelter hearing may be continued for up to 72 hours with the child remaining in shelter care if … the parents or legal custodians appear for the shelter hearing without legal counsel and request a continuance to consult with legal counsel.
Fla. R. Juv. P. 8.305(2).
Change that to a “shall” and be done with it. Case law seems to be heading that direction anyway.

GAL Program Issues New Standards of Operations

This month the Florida Guardian ad Litem Program issued an updated set of program standards. The standards cover new areas such as the transportation of children, and redefine old areas like the relationship between the volunteer GAL, the supervisor, and the program attorney–now called the volunteer child advocate (VCA), the child advocacy coordinator (CAC), and the child’s best interests attorney (CBI). The term “GAL” is redefined as anyone from the Program performing a best interests function at any given time. (Note: this distinction is immediately lost in the standards where “GAL” resumes the usage now covered under VCA.) Acronyms aside, the standards appear to be written less as detailed operating procedures and more as broader goals and principles. This would be in line with Mr. Abramowitz’s reputation as a big-picture leader.

The standards include a shift in the way cases are assigned, focusing on matching VCA strengths with children’s needs instead of blind assignment or assignment based on perceived urgency of the case. The standards also sketch out a conflict resolution procedure for when disagreement arises between the VCA and the CAC or CBI Attorney. The exact parameters of that procedure are not spelled out. Despite calls from outside child advocates to make the conflict process more transparent, it is still closed and hidden from the other parties and the court.

The elimination of the position “program attorney” and creation of “child’s best interests attorney” does however seem to be an attempt to respond to external and internal critique of where the attorney’s ethical duty of loyalty lies. The new standards differentiate the General Counsel who represents the GAL Program, from the CBI Attorneys who represent the best interests of children:

The former class title for this position, “program attorney” did not accurately reflect the role of these attorneys. The title was cold, agency focused and not reflective of their duties. The Program has a General Counsel who represents the Program while the CBI Attorneys are to represent the best interest of children.

I’m not sure this answers the loyalty question, however. My memory, though I may be wrong, was that the general counsel was part of the supervisory chain over the program attorneys. It remains to be seen if the General Counsel will be involved in case-specific conflict resolution staffings or intervene in a given dependency case to express a Program-focused policy position. This does have huge practical effects for children: the Program’s funding and political interests have been known to affect best interests and legal strategy positions. The more autonomy given to the CBI Attorneys, the better.

Finally, the standards respect the need for direct attorney representation in some cases, and explicitly allow for exceptions to the standards to be made by the Executive Director to allow room for innovative and progressive advocacy. In all, the standards are a further step for Mr. Abramowitz in his continued role of defining what it is the Guardian ad Litem Program does and how it does it fairly and effectively. As always, it will remain to be seen if the circuits follow or even acknowledge Tallahassee’s lead.