In addition to their general ethical duties as lawyers and the specific duties set out in Parts IV and V, Child's Attorneys and Guardians ad Litem also have the duties outlined in this section.
A. Accepting appointmentThe lawyer should accept an appointment only with a full understanding of the issues and functions to be performed. If the appointed lawyer considers parts of the appointment order confusing or incompatible with the lawyer's ethical duties, the lawyer should (1) decline the appointment, or (2) inform the court of the conflict and ask the court to clarify or change the terms of the order, or (3) both.
B. Lawyer's rolesA lawyer appointed as a Child's Attorney or Guardian ad Litem should not play any other role in the case and should not testify, file a report, or make recommendations except as ordered by the court when appointed in cases under Iowa Code chapter 600, 600A, or both.
Commentary
[1] Neither a Child's Attorney nor a Guardian ad Litem should be a witness, which means that the lawyer should not be cross-examined and more importantly should not testify or make a written or oral report or recommendation to the court but instead should offer traditional evidence-based legal arguments just as any other lawyer would. However, explaining what result a client wants, or proffering what one hopes to prove, is not testifying; those are things all lawyers do.[2] If these Standards are properly applied, it will not be possible for courts to make a dual appointment, but there may be cases in which such an appointment was made before these Standards were adopted. The Child's Attorney role involves a confidential relationship with privileged communications. Because the child has a right to confidentiality and advocacy of the child's position, the Child's Attorney can never abandon this role while remaining involved in the case in any way. Once a lawyer has an attorney-client relationship with a child, the lawyer cannot and should not assume any other role for the child, especially as Guardian ad Litem or witness or CFR who investigates and makes a report.C. IndependenceThe lawyer should be independent from the court and other participants in the litigation and unprejudiced and uncompromised in the lawyer's independent action. The lawyer has the right and the responsibility to exercise independent professional judgment in carrying out the duties the court assigns and to participate in the case as fully and freely as a lawyer for a party.
Commentary
[1] The lawyer should not prejudge the case. A lawyer may receive payment from a court, a government entity, or even from a parent, relative, or other adult so long as the lawyer retains the full authority for independent action.D. Limited appointmentsThe court may limit a lawyer's appointment to a specific issue and direct the lawyer accordingly.
E. Initial tasksImmediately after being appointed, the lawyer should review the file. The lawyer should inform other parties or counsel of the appointment and that as counsel of record the lawyer should receive copies of pleadings, discovery exchanges, and reasonable notification of hearings and of major changes of circumstances affecting the child.
F. Meeting with the childThe lawyer should meet with the child, adapting all communications to the child's age, level of education, cognitive development, cultural background, and degree of language acquisition, using an interpreter if necessary. The lawyer should inform the child about the court system, the proceedings, and the lawyer's responsibilities. The lawyer should elicit and assess the child's views.
Commentary
[1] Establishing and maintaining a relationship with a child is the foundation of representation. Competent representation requires a child-centered approach and developmentally appropriate communication. All appointed lawyers should meet with the child and focus on the needs and circumstances of the individual child. Even nonverbal children can reveal much about their needs and interests through their behaviors and developmental levels. Meeting with the child also allows the lawyer to assess the child's circumstances, often leading to a greater understanding of the case, which may lead to creative solutions in the child's interest.[2] The nature of the legal proceeding or issue should be explained to the child in a developmentally appropriate manner. The lawyer must speak clearly, precisely, and in terms the child can understand. A child may not understand legal terminology. Also, because of a particular child's developmental limitations, the lawyer may not completely understand what the child says. Therefore, the lawyer must learn how to ask developmentally appropriate, nonsuggestive questions and how to interpret the child's responses. The lawyer may work with social workers or other professionals to assess a child's developmental abilities and to facilitate communication.[3] While the lawyer should always take the child's point of view into account, caution should be used because the child's stated views and desires may vary over time or may be the result of fear, intimidation, or manipulation. Lawyers may need to collaborate with other professionals to gain a full understanding of the child's needs and wishes.G. Pretrial responsibilitiesThe lawyer should:
1. Conduct thorough, continuing, and independent discovery and investigations.2. Develop a theory and strategy of the case to implement at hearings, including presentation of factual and legal issues.3. Stay apprised of other court proceedings affecting the child, the parties, and other household members.4. Attend meetings involving issues within the scope of the appointment.5. Take any necessary and appropriate action to expedite the proceedings.6. Participate in, and when appropriate, initiate negotiations and mediation. The lawyer should clarify, when necessary, that the lawyer is not acting as a mediator. A lawyer who participates in a mediation should be bound by the confidentiality and privilege rules governing the mediation.7. Participate in depositions, pretrial conferences, and hearings.8. File or make petitions, motions, responses, or objections when necessary.9. Where appropriate, within a lawyer's area of competency and not prohibited by law, request authority from the court to pursue issues on behalf of the child, administratively or judicially, even if those issues do not specifically arise from the court appointment.Commentary
[1] The lawyer should investigate the facts of the case to get a sense of the people involved and the real issues in the case, just as any other lawyer would. Guardians ad Litem have additional investigation duties described in Standard V.D.[2] By attending relevant meetings, the lawyer can present the child's perspective, gather information, and sometimes help negotiate a full or partial settlement. The lawyer may not need to attend if another person involved in the case, such as a social worker, can obtain information or present the child's perspective, or when the meeting will not be materially relevant to any issues in the case.[3] The lawyer is in a pivotal position in negotiations. The lawyer should attempt to resolve the case in the least adversarial manner possible, considering whether therapeutic intervention, parenting or co-parenting education, mediation, or other dispute resolution methods are appropriate. The lawyer may effectively assist negotiations of the parties and their lawyers by focusing on the needs of the child, including where appropriate the impact of domestic violence. Settlement frequently obtains at least short-term relief for all parties involved and is often the best way to resolve a case. The lawyer's role is to advocate the child's interests and point of view in the negotiation process. If a party is legally represented, it is unethical for a lawyer to negotiate with the party directly without the consent of the party's lawyer.[4] The lawyer should file any appropriate pleadings on behalf of the child, including responses to the pleadings of other parties, to ensure that appropriate issues are properly before the court and expedite the court's consideration of issues important to the child's interests. Where available under state law or court rules or by permission of the court, relief requested may include, but is not limited to: (1) a mental or physical examination of a party or the child; (2) a parenting, custody, or visitation evaluation; (3) an increase, decrease, or termination of parenting time; (4) services for the child or family; (5) contempt for noncompliance with a court order; (6) a protective order concerning the child's privileged communications; and (7) dismissal of petitions or motions.[5] The child's interests may be served through proceedings not connected with the case in which the lawyer is participating. For example, issues to be addressed may include: (1) child support; (2) delinquency or status offender matters; (3) Supplemental Security Income and other public benefits access; (4) mental health proceedings; (5) visitation, access, or parenting time with parents, siblings, or third parties; (6) paternity; (7) personal injury actions; (8) school or education issues, especially for a child with disabilities; (9) guardianship; (10) termination of parental rights; (11) adoption; and (12) a protective order concerning the child's tangible or intangible property.H. HearingsThe lawyer should participate actively in all hearings and conferences with the court on issues within the scope of the appointment. Specifically, the lawyer should:
1. Introduce herself or himself to the court as the Child's Attorney or Guardian ad Litem at the beginning of any hearing.2. Make appropriate motions, including motions in limine and evidentiary objections, file briefs, and preserve issues for appeal, as appropriate.3. Present and cross-examine witnesses and offer exhibits as necessary.4. If a child is to meet with the judge or testify, prepare the child, familiarizing the child with the places, people, procedures, and questioning that the child will be exposed to, and seek to minimize any harm to the child from the process.5. Seek to ensure that questions to the child are phrased in a syntactically and linguistically appropriate manner and that testimony is presented in a manner that is admissible.6. Where appropriate, introduce evidence and make arguments on the child's competency to testify or the reliability of the child's testimony or out-of-court statements. The lawyer should be familiar with the current law and empirical knowledge about children's competency, memory, and suggestibility.7. Make a closing argument, proposing specific findings of fact and conclusions of law.8. Ensure that a written order is made and that it conforms to the court's oral rulings and statutorily required findings and notices.Commentary
[1] Although the lawyer's position may overlap with the position of one or more parties, the lawyer should be prepared to participate fully in any proceedings and not merely defer to the other parties. The lawyer should address the child's interests, describe the issues from the child's perspective, keep the case focused on the child's needs, discuss the effect of various dispositions on the child, and, when appropriate, present creative alternative solutions to the court.[2] A brief formal introduction should not be omitted, because in order to make an informed decision on the merits, the court must be mindful of the lawyer's exact role, with its specific duties and constraints. Even though the appointment order states the nature of the appointment, judges should be reminded at each hearing which role the lawyer is playing.[3] The lawyer's preparation of the child should include attention to the child's developmental needs and abilities. The lawyer should also prepare the child for the possibility that the judge may render a decision against the child's wishes, explaining that such a result would not be the child's fault.[4] If the child does not wish to testify or would be harmed by testifying, the lawyer should seek a stipulation of the parties not to call the child as a witness or should seek a protective order from the court. The lawyer should seek to minimize adverse consequences by seeking any appropriate accommodations permitted by law so that the child's views are presented to the court in the manner least harmful to the child, such as having the testimony taken informally in chambers without the parents present. The lawyer should seek any necessary assistance from the court, including location of the testimony, determination of who will be present, and restrictions on the manner and phrasing of questions posed to the child. The child should be told beforehand whether in-chambers testimony will be shared with others, such as parents who might be excluded from chambers.[5] Questions to the child should be phrased consistently with the law and research regarding children's competency, memory, and suggestibility. The information a child gives is often misleading, especially if adults have not understood how to ask children developmentally appropriate questions and how to interpret their answers properly. The lawyer must become skilled at recognizing the child's developmental limitations. It may be appropriate to present expert testimony on the issue or have an expert present when a young child is directly involved in the litigation to point out any developmentally inappropriate phrasing of questions.[6] The competency issue may arise in the unusual circumstance of the child being called as a live witness, as well as when the child's input is sought by other means such as in-chambers meetings, closed-circuit television testimony, etc. Iowa has no presumptive ages of competency; rather, courts engage in more flexible, case-by-case analyses. Competency to testify involves the abilities to perceive and relate. If necessary and appropriate, the lawyer should present expert testimony to establish competency or reliability or to rehabilitate any impeachment of the child on those bases.I. Appeals1. If an appeal on behalf of the child is permitted by state law, and if it has been decided pursuant to Standard IV.D or V.F that such an appeal is necessary, the lawyer should take all steps necessary to perfect the appeal and seek appropriate temporary orders or extraordinary writs necessary to protect the interests of the child during the pendency of the appeal. See Iowa Rule of Appellate Procedure 6.109(4).2. The lawyer should participate in any appeal filed by another party concerning issues relevant to the child and within the scope of the appointment, unless discharged.3. When the appeals court's decision is received, the lawyer should explain it to the child.Commentary
[1] The lawyer should take a position in any appeal filed by a party, consistent with the other provisions in these Standards. If the child's interests are affected by the issues raised in the appeal, the lawyer should seek an appointment on appeal or seek appointment of appellate counsel.[2] As with other court decisions, the lawyer should explain in terms the child can understand the nature and consequences of the appeals court's decision, whether there are further appellate remedies, and what more, if anything, will be done in the trial court following the decision.J. EnforcementThe lawyer should monitor the implementation of the court's orders and address any noncompliance.
K. End of representationWhen the representation ends, the lawyer should inform the child in a developmentally appropriate manner.
Iowa. Stand. Prac. Lawy. Repre. Child. Cust. Case. III