NY Issues New Professional Responsibility Rules

The question of when a lawyer may advocate for a position different from that articulated by a child client is one that has long caused consternation among practitioners and scholars. The question comes up on a nearly daily basis for lawyers who represent children, and demands clear ethical guidance. Consider the case of Amkia P. 684 N.Y.S.2d 761 (Bx. Fam. Ct. 1999). Amkia, a 10-year-old girl in foster care, emphatically desired to return to the care of her mother. Because Amkia had a chronic illness that was life-threatening if medication was not properly administered, the Family Court was concerned that Amkia would not be safe in her mother's care. Amkia's lawyer believed that Amkia would be at imminent risk of serious harm if returned to her mother, and therefore chose to substitute judgment and advocate for her own view of what was best for Amkia ' that she remain temporarily in foster care ' rather than for Amkia's stated desire to return home. The Family Court rejected the claim that the law guardian's substitution of judgment meant that Amkia had ineffective representation, reasoning: “[i]n her role as law guardian for a 10-year-old child, a law guardian may properly attempt to persuade the court to adopt a position which, in the law guardian's independent judgment, would best promote the child's interest, even if that position is contrary to the wishes of the child.”

While Amkia's lawyer chose to substitute her judgment for Amkia's and the court agreed, the recent trend has been to caution law guardians against doing so except in extraordinary circumstances, and to leave the determination of a child's best interests to the court ' not the child's lawyer. Most recently, the chief judge issued an Administrative Order that an attorney for a child must advocate the child's position unless either: 1) the child client lacks the capacity for a knowing, voluntary and considered judgment; or 2) following the child client's wishes would likely result in a substantial risk of imminent, serious harm to the child. Both the New York State Bar Association and Legal Aid's Juvenile Rights Division take similar positions, using almost identical language.

Remarkably, however, the Code did not contain a single mandatory provision offering guidance for attorneys on this issue. Ethical Consideration 7-12 urged lawyers to “safeguard and advance the interests” of a client incapable of making a considered judgment, but this broad advice was aspirational only, and not mandatory authority.

The new rules, in contrast, speak to the issue directly in Rule 1.14(b) (“client with diminished capacity”) and reinforce the philosophy of advocacy set forth in the Chief Judge's Administrative Order. The rule states that a lawyer must reasonably believe that three specific pre-conditions exist before she may ethically take protective action such as substituting judgment: 1) the client has diminished capacity; 2) the client is at risk of substantial physical, financial or other harm unless the lawyer takes action; and 3) the client cannot adequately act in his own interests. If all of these conditions exist, then the lawyer is permitted, though not required, to take action necessary to protect the client. New York State Unified Court System, Part 1200-Rules of Professional Conduct, Rule 1.14(b) (2009).

What the New Rule Means

What does the new rule mean for lawyers who represent children? Most significantly, it proscribes substituting judgment unless a child will be at risk of substantial harm if the lawyer takes no protective action. It is no longer ethically permissible to substitute judgment for issues that arise in the course of representing a child client, even if the client has diminished capacity and cannot act in his own interests, unless that high level of risk exists. Rather than simply deciding some risk to Amkia exists, before substituting judgment, Amkia's lawyer must now do a careful assessment of how serious the risk is that Amkia will die because her medication will not be administered properly if she is returned home. She should also assess whether alternative measures such as visits by a home health-care worker might significantly reduce the risk to Amkia.

Under the new rule, whether substitution of judgment is permissible becomes an issue-by-issue assessment requiring differential diagnosis ' it can vary for the same client with the same capacity, depending on the severity of risk the issue presents to the client. A client who wants his lawyer to take a position that, while not in the client's best interests, does not put the client at substantial risk of harm, is entitled to have an advocate for that position.

The new rules also reinforce the guidance given by the New York State Bar Association, the Juvenile Rights Division and many others that a lawyer should always attempt to resolve any differences of opinion with a client through traditional lawyering duties, such as intensive client counseling. Through normal counseling, lawyers will often be able to explain to a client why a particular option may serve the client's best interests, and may even be persuaded by a client that the position of the client is the most sensible.

Confidentiality is a central component of the attorney-client relationship. The traditional rationale for requiring lawyers to treat their communications with clients as confidential runs as follows: A lawyer must have complete and truthful information to competently counsel and advocate for her client; a client will provide complete and truthful information only if he is assured that the lawyer will not and cannot disclose that information without his consent; therefore, in order to assure competent representation, lawyers must be prohibited from disclosing confidential information without a client's consent. (See Geoffrey C. Hazard, Jr. & W. William Hodes, 1 “The Law of Lawyering,” ' 9-2 (3d ed. 2001); Monroe Freedman, “Lawyer's Ethics in an Adversary System,” 27 (1975). While this syllogism is the basis for the confidentiality rules in the Model Code and Model Rules, there are certainly other reasons that confidentiality should be observed. See, e.g., Bruce Landesman, “Confidentiality and the Lawyer-Client Relationship, the Good Lawyer,” ch. 8 (David Luban ed. 1984), at 191 (arguing that there exist moral reasons for the protection of confidentiality). In addition, some commentators question the soundness of the syllogism. See, e.g., Fred Zacharias, “Rethinking Confidentiality,” 74 Iowa L. Rev. 351 (1989) (discussing a study showing that clients put far less stock in confidentiality than lawyers believe that they do).)

The general duty to maintain confidentiality, as well as the more narrowly focused attorney-client privilege, are powerful prohibitions against a lawyer's disclosing any communications with a client that do not fall under certain enumerated exceptions.

The old Code contained five exceptions: 1) where a client consents to disclosure; 2) where disclosure is mandated by law or court order; 3) where disclosure is necessary to prevent a client's commission of a crime; 4) where disclosure is necessary in the course of a dispute between a client and lawyer (e.g., a fee dispute); and 5) where disclosure is necessary to correct a false representation by the lawyer.

Lawyers for children frequently encounter situations that create a strong moral pull for disclosing confidential information, and do not fall under one of these exceptions. Imagine the following scenario. A lawyer represents a mature and articulate 15-year-old child client, with no mental illness or learning disabilities, who was allegedly beaten with a belt by his parents. After a few months in foster care, the client is returned to his parents. The lawyer meets with her client, and finds out that the client is again being beaten, only this time much more severely. The client does not want this information disclosed, even after extensive counseling by the lawyer.

Since the client does not appear to meet the definition of a “client under a disability” for whom a lawyer could substitute judgment, the lawyer may breach confidentiality over the client's objections only if this situation falls under an enumerated exception to the confidentiality obligation. The Code contained no relevant exception; the rules, however, do. Under Rule 1.6(b), disclosure is permitted (but not required) when necessary to prevent “reasonably certain death or substantial bodily harm.” This new exception, which applies to adult as well as child clients, allows lawyers to disclosure client confidences to protect vulnerable children facing serious risk of harm in extraordinary circumstances.

There are, however, costs to using this new exception to disclose confidential information without a client's consent. Client confidentiality may matter most when the risks to children are greatest. One potentially devastating consequence of the lawyer's disclosing the child's confidences is the negative impact on a lawyer's ability to serve as an effective counselor and adviser.

A lawyer can give proper advice only if she has complete information about a client and his situation. Yet if a child is concerned that information he relates to his lawyer will be disclosed, he may understandably be much more reluctant to share that information, thereby depriving himself of a fully effective legal adviser.

In addition, a lawyer is severely hampered in her ability to advocate effectively in court if she does not know her client's description of the facts of the case. In the situation described above, for example, the lawyer cannot effectively advocate for an order of protection for her client, or for appropriate parent training services for the parents, if she does not know the factual background. Given these possible consequences, placing a client communication within the new confidentiality exception requires careful professional judgment and great caution. The drafters of the rules implicitly acknowledge as much by making disclosure permissive rather than mandatory.

Another aspect of the new rules, which is more troubling, is that they contain a second new exception to confidentiality that seems to allow lawyers broad and undefined discretion to make disclosures over a client's objections.

Rule 1.6(a) allows a lawyer to make “disclosure impliedly authorized to advance client's best interests when reasonable or customary.” This language, which is not contained in the ABA Model Rules on which the New York Rules are based, will distress the many children's lawyers who have been fighting to move away from the ambiguity inherent in giving lawyers discretion to override children's directions about the objectives of representation based on the vague “best interests” standard. Such vagueness has in the past been seen by some attorneys as a license to substitute their judgment for their client's definition of the objectives of the representation based on the lawyer's personal beliefs of what is best for the child.

That interpretation would severely undermine the protection of confidential information that is at the heart of the attorney-client relationship for children, and indeed all clients. Though it is impossible to know at this point, the emphasis of other rules on client-directed advocacy makes it likely that such a broad interpretation is not what the writers of the rules intended.

Andrew Schepard is professor of law, Hofstra University School of Law and Director of the Center for Children, Families and the Law. Theo Liebmann is clinical professor of law at Hofstra and director of the Hofstra Law Clinic. This article originally ran in the New York Law Journal, an Incisive Media sister publication of this newsletter.

On April 1, 2009, the Rules of Professional Conduct went into effect and replaced the current New York Lawyer's Code of Professional Responsibility as the governing rules of professional responsibility for attorneys in New York State. The rules generally end New York's status as a professional responsibility renegade as they comport with the ABA Model Rules that serve as the template for professional responsibility in 47 other states. New York lawyers can now draw on a very large body of decisions and commentary from other states as they encounter ethical quandaries in their practice. Most practitioners also feel that the rules are much more clearly organized than the Code, making it easier for attorneys to seek guidance.

In the short term, however, lawyers will have to meet the challenge of familiarizing themselves with the rules, and with how they influence resolution of professional responsibility dilemmas in their practice.

Substituting Judgment

The question of when a lawyer may advocate for a position different from that articulated by a child client is one that has long caused consternation among practitioners and scholars. The question comes up on a nearly daily basis for lawyers who represent children, and demands clear ethical guidance. Consider the case of Amkia P. 684 N.Y.S.2d 761 (Bx. Fam. Ct. 1999). Amkia, a 10-year-old girl in foster care, emphatically desired to return to the care of her mother. Because Amkia had a chronic illness that was life-threatening if medication was not properly administered, the Family Court was concerned that Amkia would not be safe in her mother's care. Amkia's lawyer believed that Amkia would be at imminent risk of serious harm if returned to her mother, and therefore chose to substitute judgment and advocate for her own view of what was best for Amkia ' that she remain temporarily in foster care ' rather than for Amkia's stated desire to return home. The Family Court rejected the claim that the law guardian's substitution of judgment meant that Amkia had ineffective representation, reasoning: “[i]n her role as law guardian for a 10-year-old child, a law guardian may properly attempt to persuade the court to adopt a position which, in the law guardian's independent judgment, would best promote the child's interest, even if that position is contrary to the wishes of the child.”

While Amkia's lawyer chose to substitute her judgment for Amkia's and the court agreed, the recent trend has been to caution law guardians against doing so except in extraordinary circumstances, and to leave the determination of a child's best interests to the court ' not the child's lawyer. Most recently, the chief judge issued an Administrative Order that an attorney for a child must advocate the child's position unless either: 1) the child client lacks the capacity for a knowing, voluntary and considered judgment; or 2) following the child client's wishes would likely result in a substantial risk of imminent, serious harm to the child. Both the New York State Bar Association and Legal Aid's Juvenile Rights Division take similar positions, using almost identical language.

Remarkably, however, the Code did not contain a single mandatory provision offering guidance for attorneys on this issue. Ethical Consideration 7-12 urged lawyers to “safeguard and advance the interests” of a client incapable of making a considered judgment, but this broad advice was aspirational only, and not mandatory authority.

The new rules, in contrast, speak to the issue directly in Rule 1.14(b) (“client with diminished capacity”) and reinforce the philosophy of advocacy set forth in the Chief Judge's Administrative Order. The rule states that a lawyer must reasonably believe that three specific pre-conditions exist before she may ethically take protective action such as substituting judgment: 1) the client has diminished capacity; 2) the client is at risk of substantial physical, financial or other harm unless the lawyer takes action; and 3) the client cannot adequately act in his own interests. If all of these conditions exist, then the lawyer is permitted, though not required, to take action necessary to protect the client. New York State Unified Court System, Part 1200-Rules of Professional Conduct, Rule 1.14(b) (2009).

What the New Rule Means

What does the new rule mean for lawyers who represent children? Most significantly, it proscribes substituting judgment unless a child will be at risk of substantial harm if the lawyer takes no protective action. It is no longer ethically permissible to substitute judgment for issues that arise in the course of representing a child client, even if the client has diminished capacity and cannot act in his own interests, unless that high level of risk exists. Rather than simply deciding some risk to Amkia exists, before substituting judgment, Amkia's lawyer must now do a careful assessment of how serious the risk is that Amkia will die because her medication will not be administered properly if she is returned home. She should also assess whether alternative measures such as visits by a home health-care worker might significantly reduce the risk to Amkia.

Under the new rule, whether substitution of judgment is permissible becomes an issue-by-issue assessment requiring differential diagnosis ' it can vary for the same client with the same capacity, depending on the severity of risk the issue presents to the client. A client who wants his lawyer to take a position that, while not in the client's best interests, does not put the client at substantial risk of harm, is entitled to have an advocate for that position.

The new rules also reinforce the guidance given by the New York State Bar Association, the Juvenile Rights Division and many others that a lawyer should always attempt to resolve any differences of opinion with a client through traditional lawyering duties, such as intensive client counseling. Through normal counseling, lawyers will often be able to explain to a client why a particular option may serve the client's best interests, and may even be persuaded by a client that the position of the client is the most sensible.

Confidentiality is a central component of the attorney-client relationship. The traditional rationale for requiring lawyers to treat their communications with clients as confidential runs as follows: A lawyer must have complete and truthful information to competently counsel and advocate for her client; a client will provide complete and truthful information only if he is assured that the lawyer will not and cannot disclose that information without his consent; therefore, in order to assure competent representation, lawyers must be prohibited from disclosing confidential information without a client's consent. (See Geoffrey C. Hazard, Jr. & W. William Hodes, 1 “The Law of Lawyering,” ' 9-2 (3d ed. 2001); Monroe Freedman, “Lawyer's Ethics in an Adversary System,” 27 (1975). While this syllogism is the basis for the confidentiality rules in the Model Code and Model Rules, there are certainly other reasons that confidentiality should be observed. See, e.g., Bruce Landesman, “Confidentiality and the Lawyer-Client Relationship, the Good Lawyer,” ch. 8 (David Luban ed. 1984), at 191 (arguing that there exist moral reasons for the protection of confidentiality). In addition, some commentators question the soundness of the syllogism. See, e.g., Fred Zacharias, “Rethinking Confidentiality,” 74 Iowa L. Rev. 351 (1989) (discussing a study showing that clients put far less stock in confidentiality than lawyers believe that they do).)

The general duty to maintain confidentiality, as well as the more narrowly focused attorney-client privilege, are powerful prohibitions against a lawyer's disclosing any communications with a client that do not fall under certain enumerated exceptions.

The old Code contained five exceptions: 1) where a client consents to disclosure; 2) where disclosure is mandated by law or court order; 3) where disclosure is necessary to prevent a client's commission of a crime; 4) where disclosure is necessary in the course of a dispute between a client and lawyer (e.g., a fee dispute); and 5) where disclosure is necessary to correct a false representation by the lawyer.

Lawyers for children frequently encounter situations that create a strong moral pull for disclosing confidential information, and do not fall under one of these exceptions. Imagine the following scenario. A lawyer represents a mature and articulate 15-year-old child client, with no mental illness or learning disabilities, who was allegedly beaten with a belt by his parents. After a few months in foster care, the client is returned to his parents. The lawyer meets with her client, and finds out that the client is again being beaten, only this time much more severely. The client does not want this information disclosed, even after extensive counseling by the lawyer.

Since the client does not appear to meet the definition of a “client under a disability” for whom a lawyer could substitute judgment, the lawyer may breach confidentiality over the client's objections only if this situation falls under an enumerated exception to the confidentiality obligation. The Code contained no relevant exception; the rules, however, do. Under Rule 1.6(b), disclosure is permitted (but not required) when necessary to prevent “reasonably certain death or substantial bodily harm.” This new exception, which applies to adult as well as child clients, allows lawyers to disclosure client confidences to protect vulnerable children facing serious risk of harm in extraordinary circumstances.

There are, however, costs to using this new exception to disclose confidential information without a client's consent. Client confidentiality may matter most when the risks to children are greatest. One potentially devastating consequence of the lawyer's disclosing the child's confidences is the negative impact on a lawyer's ability to serve as an effective counselor and adviser.

A lawyer can give proper advice only if she has complete information about a client and his situation. Yet if a child is concerned that information he relates to his lawyer will be disclosed, he may understandably be much more reluctant to share that information, thereby depriving himself of a fully effective legal adviser.

In addition, a lawyer is severely hampered in her ability to advocate effectively in court if she does not know her client's description of the facts of the case. In the situation described above, for example, the lawyer cannot effectively advocate for an order of protection for her client, or for appropriate parent training services for the parents, if she does not know the factual background. Given these possible consequences, placing a client communication within the new confidentiality exception requires careful professional judgment and great caution. The drafters of the rules implicitly acknowledge as much by making disclosure permissive rather than mandatory.

Another aspect of the new rules, which is more troubling, is that they contain a second new exception to confidentiality that seems to allow lawyers broad and undefined discretion to make disclosures over a client's objections.

Rule 1.6(a) allows a lawyer to make “disclosure impliedly authorized to advance client's best interests when reasonable or customary.” This language, which is not contained in the ABA Model Rules on which the New York Rules are based, will distress the many children's lawyers who have been fighting to move away from the ambiguity inherent in giving lawyers discretion to override children's directions about the objectives of representation based on the vague “best interests” standard. Such vagueness has in the past been seen by some attorneys as a license to substitute their judgment for their client's definition of the objectives of the representation based on the lawyer's personal beliefs of what is best for the child.

That interpretation would severely undermine the protection of confidential information that is at the heart of the attorney-client relationship for children, and indeed all clients. Though it is impossible to know at this point, the emphasis of other rules on client-directed advocacy makes it likely that such a broad interpretation is not what the writers of the rules intended.

Andrew Schepard is professor of law, Hofstra University School of Law and Director of the Center for Children, Families and the Law. Theo Liebmann is clinical professor of law at Hofstra and director of the Hofstra Law Clinic. This article originally ran in the New York Law Journal, an Incisive Media sister publication of this newsletter.