ABA Child Law Practice, October 2004, Vol. 23. No. 8, pp 121-122, 126-128

RAISING THE BAR Interacting with Other Parties

by Jennifer Renne

Out-of-court contact with caseworkers, parents, children, and other lawyers is common for child welfare lawyers. The informal nature of the interactions makes adhering to the ethics rules limiting such contact challenging. This article explains how to apply the ethics rules when child welfare lawyers are interacting with parties in the case, specifically parents, children, and caseworkers. Lawyers are not restricted when communicating with people such as police officers, court appointed special advocates (CASAs), foster and adoptive parents (unless the caregiver is represented), because they are not parties to the case. This article addresses the following ethical questions:

Parents’ lawyers:

Children’s lawyers and lawyer-GALs:

Agency lawyers:

Communicating with Represented Parties

Model Rule 4.2 states that "a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer …" There are two exceptions: (1) the lawyer has the consent of the other lawyer, or (2) the lawyer is authorized by law or a court order to communicate with the unrepresented party.

The rule protects parties against overreaching by opposing counsel, safeguards the lawyer-client relationship from interference, and reduces the likelihood that clients will disclose confidential information that will harm their interests.¹ In interpreting MR 4.2, the ABA Committee on Ethics and Professional Responsibility reiterated the importance of protecting the lawyer-client relationship from interference by opposing counsel, noting that the rule expands on the Fifth Amendment right against self-incrimination, and the Sixth Amendment right to effective assistance of counsel.²

The rule applies even though the represented person initiates or consents to the communication. So even if a parent approaches a GAL with questions or comments about the case, the GAL must immediately end communication unless the GAL gets consent from the parent’s
lawyer.³

Difficulty arises when applying MR 4.2 because the parties in dependency cases work closely together outside of court. The caseworker and child’s counsel, in particular, have extensive contact with parents and children, almost always outside the presence of the other lawyers. Issues arise not only when a lawyer is preparing for court, but during home visits, educational meetings, case staffings, and other routine activities. The following sections explain the nuances of MR 4.2, and examine case law and ethics opinions from around the country that have addressed these issues.

Communication May Not be About the "Subject of Representation"

Consider the following scenario:

A recent District of Columbia ethics opinion⁴ poses this hypothetical, and explains unequivocally that the GAL cannot ask how the child has adjusted since returning home (Question #2). MR 4.2 is clear that the GAL may not communicate with the parent about the substance of the case without consent from the mother’s lawyer. The GAL is authorized by law to perform the dual role of advocate and factfinder, but the authorizing legislation gives no authority to the GAL to collect information from the child’s parents without consent from the parents’ lawyer. The opinion acknowledges that the boundary set by the rule may be inconvenient or cumbersome, but is necessary because it protects the parent, who may be at risk of criminal liability as well as termination of parental rights.

Regarding question #1, the District of Columbia opinion allows the GAL to pose such a question. Even though MR 4.2 states no exception for contact limited to purely administrative questions, asking the whereabouts of the child does not thwart the purpose of the rule. The parent is not being asked for information about which advice of counsel may be sought. Keep in mind, though, that if the child had run away and gotten into some trouble, even this simple question might lead to substantive communication. Also, MR 4.2, Comment 4 permits communication about matters outside the representation.

Therefore, lawyers are generally allowed to discuss "administrative issues" with a parent, including asking about the child’s whereabouts, or setting up an appointment for a home visit. While there is no guidance in the rule as to what type of communication qualifies as "administrative in nature," the District of Columbia case makes the analogy to ex parte lawyer/judge communications where it is generally understood that scheduling matters and other nonsubstantive matters can be discussed outside the presence of all counsel. When the child is living with the parent, especially in the case of a preverbal child, home visits with child’s counsel can be awkward because child’s counsel cannot discuss anything substantive with the parent. The child’s lawyer could ask the parent’s lawyer to be present for the home visit or to give consent beforehand.

Communicating with the Child

MR 4.2 applies equally to protect child and adult clients. Neither parents’ lawyers nor agency lawyers should interview the child outside the presence of child’s counsel, without consent of child’s counsel. Three states (South Carolina, North Carolina, New York) and the District of Columbia have directly addressed this question in ethics advisory opinions, which held that as represented parties, children in an abuse/neglect case are protected by MR 4.2.⁵ Note that ethics advisory opinions are not law, so may or may not be persuasive legal authority. One case acknowledges that the barrier imposed by MR 4.2 may be costly and cause a loss of informality and access to direct communication, but that the rule applies nonetheless. Getting the permission of the parent to interview the child has no effect on applying the rule. While lawyers must be sensitive to the potential ethical violations of interviewing the child, generally social workers and police may conduct such interviews. Prosecutors and agency lawyers, however, may be limited in using caseworkers and police as their agents when interviewing the child, an issue covered in the next section.

Communicating with Parents by Opposing Counsel

MR 4.2 prohibits opposing counsel from communicating with parents outside the presence of counsel unless the parent’s lawyer consents. A harder question involves communicating with the parent through a third party, such as the caseworker.

Consider the following scenario:

The school holds a meeting to review a child’s IEP. The caseworker, probation officer, school personnel, GAL, and the mother are present. During the meeting, is it permissible for the GAL to suggest questions for the caseworker to ask the mother?

A District of Columbia ethics opinion uses this scenario to assess whether the GAL, who may not talk to the mother on any matters of substance (without permission from her lawyer), may relay questions to the mother through a social worker. The opinion states that the answer is clearly no; this would be an ethical violation by the GAL. The reasoning is based in part on the MR 4.2 commentary (in District of Columbia and most states), which states that not only can the lawyer not question or communicate directly with the party without counsel present, but the lawyer cannot cause another to do so either. The commentary to MR 4.2 says, "a lawyer may not make a communication prohibited by this Rule through the acts of another."⁶ Further, MR 8.4 states that it is professional misconduct for a lawyer to (a) violate or attempt to violate the Rules of Professional Misconduct, knowingly assist or induce another to do so, or do so through the acts of another." Citing MR 4.2 and MR 8.4, the District of Columbia opinion concludes that a GAL may not use a social worker or any other third party as a go-between to circumvent MR 4.2.⁷

Limiting GALs and agency lawyers from using caseworkers to ask parents questions that they (the lawyers) may not ask is complicated because caseworkers must investigate cases, and work with parents. So where is the line between permissible caseworker/parent interaction, and lawyers directing caseworkers to circumvent 4.2 prohibitions?

First, parties may communicate directly with each other.⁸ Second, caseworkers are not only permitted, but mandated by law to investigate cases, and work with the parent to achieve reunification. The exception to MR 4.2 that allows ex parte contact "when authorized by law" means that the law must expressly authorize the lawyer to interview the represented parent outside the presence of counsel (which no state permits). In this context, the law applies to the caseworker, not the lawyer. Courts and practitioners therefore struggle with the permissible limits of "using" the caseworker to ask the parents questions that they (the lawyers) are prohibited from asking under MR 4.2.

A New Jersey case looked at this question where a caseworker interviewed a father outside the presence of counsel. Because the father was also being criminally charged, the court considered whether the caseworker’s interview violated the father’s Fifth and Sixth Amendment rights in addition to MR 4.2. In concluding that the interview was not a 4.2 violation, the court found (1) the father was not "in custody" at the time of the questioning, and (2) there was insufficient proof that the purpose of the questioning was to aid the prosecution. The prosecutor had not instructed the caseworker to conduct the interview.⁹ Agency lawyers, in particular, should be aware of this potential issue when advising caseworkers who are interviewing parents outside the presence of counsel.¹⁰ They can guide investigations, but have to be sensitive to the dividing line between guiding investigations and violating MR 4.2.

Parents’ lawyers who are concerned about protecting their clients, especially in the preadjudication phase where allegations have not been sustained, should make clear to caseworkers, GALs, children’s and agency lawyers that they are not consenting to any contact with their client without their presence. On the other hand, the success of the reunification efforts depends on a strong working relationship between the caseworker and parent, so parents’ lawyers have to be very sensitive when advising clients. They should encourage as much cooperation as possible, while protecting their client’s rights. In fact, post-disposition, parents’ lawyers need to advise their clients that lack of cooperation with social services may have adverse consequences, including termination of parental rights.

Communicating with Caseworkers

May a parent’s lawyer, child’s lawyer, or GAL communicate with the caseworker outside the presence of the agency lawyer? In most jurisdictions, the caseworker is not the "client" of the agency lawyer, because the agency lawyer represents the child welfare agency, not the individual caseworker. However, the commentary to MR 4.2 says in the case of an organization, the rule prohibits communication with an employee who "supervises, directs, or regularly consults with the organization’s lawyer, or has the authority to obligate the organization."¹¹ There is some disagreement as to whether line caseworkers fall under that definition.

Another comment says that permitted communications that are "authorized by law" may include the "right to communicate with the government."¹² Note that "authorized by law" refers to the communication between the opposing counsel and represented party. Because of these two comments, whether opposing counsel can speak directly with the caseworker without agency consent is not clear.

A New Mexico case held that a GAL is not prohibited from ex parte contact with social workers outside the presence of agency lawyers because GALs are not performing the traditional role of lawyer, so they are not "adversaries." GALs perform multiple roles, including "acting as an extension of the court by performing the quasi-judicial functions of investigating the facts and reporting to the court what placement was in [the child’s] best interests."¹³ (emphasis in original). A second question raised in the case was whether the analysis changes if the GAL retains a lawyer to sue the agency. The court acknowledged that this presents a harder question because the child and the agency are now clearly adversaries. However, the court held that this fact "does not cause a metamorphosis of the role of the GAL into that of a traditional lawyer representing the client. The GAL’s statutory duty of independent investigation and reporting to the court continues unabated."¹⁴ Therefore, the court found that the ethical prohibition against communicating outside the presence of counsel does not apply to GALs even when the child and agency are adversaries. Note that the reasoning in the New Mexico case differs from that of the District of Columbia opinion where GALs (with the same statutory obligation to investigate cases and report to the court their assessment of the child’s best interests) are required to adhere to the code of ethics.¹⁵ This illustrates states’ opposite views on whether the ethics codes apply to GALs.¹⁶

A Michigan Court held that parents’ lawyers and GALs (in Michigan, GALs are required to be lawyers) may speak directly with the caseworker outside of the presence of agency counsel based on the importance of the parents’ lawyers and GALs having access to the caseworker, and the role of the agency in bringing the action against the parent. As a practical matter, parents’ lawyers need access to the caseworker to adequately prepare.¹⁷ Given the frequency of contact between caseworkers and lawyers representing parents and children, an underlying concern was the administrative costs of a rule that would require the presence or permission of agency counsel:¹⁸

When interviewing government employees, some states give opposing counsel more latitude. As interpreted in an ABA Formal Ethics Opinion, the right to speak with government officials is grounded in the public policy of ensuring citizens’ right to access government decision makers.²⁰ If such contact is expressly authorized by law (an exception to MR 4.2), then the lawyer is permitted to contact the government workers, but must adhere to MR 4.3 (discussed in next section), and MR 4.4 (a), which prohibits a lawyer from using methods intended to embarrass, delay, burden, or violate the legal rights of a third person.

Communicating with Unrepresented Parties

In dealing with someone who is not represented by counsel, MR 4.3 states that a lawyer cannot state or imply that they are disinterested, or without bias.²¹ When the lawyer knows or reasonably should know the unrepresented person misunderstands the lawyer’s role, the lawyer must make reasonable efforts to correct the misunderstanding. As counsel almost always represents children and the agency, the group that this rule will apply to most often is pro se parents.

Pro Se Parents

Lawyers must be careful when interacting with parents who proceed without counsel. There are often so many different players in a dependency case that a parent can get confused about the respective roles. Lawyers must make sure pro se parents understand the lawyer’s role in the case, who they represent, and their position. MR 4.3 states that the only advice the lawyer may give to an unrepresented party is the advice to "get a lawyer."

Parents can get confused about the lawyer’s role and obligations, especially when the parent’s and child’s positions are aligned. For example, when the child’s lawyer is arguing that the child should be returned home, the parent perceives that the child’s lawyer is "on her side," and may reveal information that she shouldn’t. The child’s lawyer needs to explain to the mother that she represents the child, that information exchanged with the mother is not protected by confidentiality, and that the child’s position may change. Lawyers for the agency and children can recommend to parents that they should get a lawyer, and can help them do this by letting them know how to contact the public defender’s office, for example. The parents can also speak directly with the judge about the public defender’s service, or other resources for people with limited means, such as a list of private lawyers who take these cases on a sliding scale fee basis.

Conclusion

The ethics rules prevent lawyers from communicating with parties outside the presence of their lawyer, absent consent from that lawyer. MR 4.3 also protects unrepresented parties. Applying these fairly straightforward ethics rules, however, can be complicated by issues that arise in dependency cases:

Only a handful of states have resolved the ethical dilemmas raised by these issues, with varying results. Therefore, lawyers need to be aware of what the rules say, and how their states interpret the rules. Absent a case or ethics opinion on the subject, lawyers should be aware of the potential risks when interviewing represented parties outside the presence of counsel, and should also seek to protect their clients from such interviews by opposing counsel. Lawyers can also seek guidance from their state or local bar association by requesting an ethics opinion when the correct action is not clear under the rules.

Jennifer Renne, JD, is an assistant director of child welfare at the ABA Center on Children and the Law, Washington, DC, and an adjunct professor at Georgetown University Law Center. She formerly represented children in Maryland.

Funding for this article was provided by the National Resource Center on Legal and Judicial Issues, a project of the U.S. Department of Health and Human Services, Administration for Children and Families.

Thanks to George Kuhlman, Ethics Counsel, and Peter Geraghty, Director, Ethics Search, both of the ABA Center for Professional Responsibility for reviewing this article.

Endnotes

1 MR 4.2, cmt. 1.

2 ABA Formal Opinion 95-396 (1995).

3 MR 4.2, cmt. 3.

4 District of Columbia Ethics Opinion No. 295 (February 15, 2000).

5 South Carolina Advisory Opinion 97-15 (December 1997); North Carolina Ethics Opinion RPC 249 (Jan. 23, 1997); New York Ethics Opinion 656 (Dec. 22, 1993).

6 MR 4.2, cmt. 4.

7 District of Columbia Ethics Opinion No. 295 (February 15, 2000).

8 ABA Formal Opinion 92-362 addresses the issue of parties communicating directly with each other, and suggests in some instances, such as when a lawyer has reason to believe that opposing counsel has not communicated an offer of settlement to the client, that it may be appropriate under MR 1.4 and MR 1.2 for the lawyer to advise his client to speak directly with the opposing party to verify whether the party was informed of the settlement offer.

9 State v. P.Z., 703 A.2d 901 (N.J. 1997).

10 State v. Miller, 600 N.W.2d 457 (Minn. 1999). (Minnesota Supreme Court found Rule 4.2 violation where prosecutor did not terminate interview with defendant when prosecutor knew defendant was represented by counsel; prosecutor ratified police detective’s conduct.)

11 MR 4.2, cmt. 7.

12 MR 4.2, cmt. 5.

13 State of New Mexico Children, Youth, Families Dep’t v. George F., 964 P.2d 158, 162 (N.M. Ct. App. 1998).

14 Ibid., 164.

15 Note that the D.C. ethics opinion is nonbinding.

16 This issue is explored more fully in the chapter on "Special Issues for Guardians ad Litem" in the forthcoming book compiling this series.

17 The distinction between this scenario and a criminal defendant’s lawyer’s right to speak to the police or any other witness without 4.2 restrictions is that those witnesses are not the prosecutor’s clients.

18 Michigan Formal Opinion 316, December 13, 1999.

19 Ibid.

20 ABA Formal Opinion 97-408 (1997).

21 MR 4.3.