In reflecting on “judicial norms,” I will offer some views on judicial restraint, independence, impartiality, autonomy, and interdependence. I will also stress the importance of collegiality in judicial decisionmaking and highlight what I see to be the advantages of a diverse judiciary.

In amplifying my views, I will comment on three essays: John Ferejohn and Larry Kramer, Judicial Independence in a Democracy: Institutionalizing Judicial Restraint; Lawrence Friedman, Judging the Judges: Some Remarks on the Way Judges Think and the Way Judges Act; and Kathryn Abrams, Black Judges and Ascriptive Group Identification. This will allow me to lend a judge's perspective to the analyses offered by these preeminent legal scholars.

SOME COMMENTS ON PROFESSOR FEREJOHN'S AND DEAN KRAMER'S JUDICIAL INDEPENDENCE IN A DEMOCRACY: INSTITUTIONALIZING JUDICIAL RESTRAINT

The chapter authored by Professor Ferejohn and Dean Kramer is a long and scholarly piece which attempts to rationalize institutional doctrines of judicial restraint employed by the federal courts in the United States. I want to begin by saying that, in my view, Professor Ferejohn and Dean Kramer have got it basically right in their essay. The Constitution makes judges dependent on the political branches in a variety of ways. Individual judges are not terribly vulnerable to control from the political branches, but the judiciary as a whole is somewhat vulnerable. As a result of this arrangement, the judiciary has developed a set of self-imposed institutional doctrines of restraint. By regulating itself, the judiciary protects its ability to have its judgments effectuated.

The requirement of competency is perhaps less controversial than the mandate for zealousness. Media and lay portrayals of the evils of the legal system circle around a mistaken understanding of the meaning and importance of zealousness, which has become synonymous with frivolous causes of action and with grand incivility among those involved in the legal system. It is not surprising, therefore, that the express requirement of Canon 7 of the ABA Code of Professional Responsibility that “[a] lawyer should represent a client zealously within the bounds of the law” was eliminated from the ABA Model Rules of Professional Conduct except in the Preamble and Comments. And the American Academy of Matrimonial Lawyers has noted that zealous representation “is not always appropriate in family law matters.” In contrast, the concept of competence has received a radically different reception by the public and bar, and it is not surprising that it is the first rule in the ABA Model Rules of Professional Responsibility.

Rather than disappearing, the requirement of competency has not only survived numerous ethical code iterations but it has also been refined and expanded. For instance, in many jurisdictions competency to represent children in child dependency proceedings now requires knowledge in areas well beyond legal theory. For instance, in California the superior court is required to screen and appoint “competent” counsel with sufficient minimum standards of education in “the law of juvenile dependency” and in “child development, child abuse and neglect, substance abuse, [and] domestic violence….”

IN RE CAR

This case involves four family members, Gail Car (mother), William Car (father), Tifini Car (sister), and Ming Car (sister), in a child abuse dependency action alleging that Gail threw hot water on Tifini, causing her severe burns. The petition also alleges that Tifini is an uncontrollable child who needs to be placed in a court-supervised grouphomewhere shewill learn the importance of being responsible and of following the reasonable demands of her adult custodian. Attached to this set of General Instructions youwill find a 12-page dependency court file that contains all pleadings in the instant case.

Your responsibility in this negotiation and/or mediation is to represent your client(s) during a preadjudication (pretrial) negotiation. You should seek to perfect your client's interests while attempting to resolve this dispute without the necessity of a formal trial (the adjudication hearing). It should be noted that the Department's responsibility is to represent the best interests of the children as determined by the Department. Because the Department's views regarding the children's best interests may conflict with the children's expressed desires, the Code of Professional Responsibility may require the appointment of separate counsel for the children. Assume that you represent both children, Tifini and Ming Car.

The dependency petition alleges that Tifini Car sustained second-degree burns to her body that would not have occurred except for the unreasonable neglectful or intentional acts by her mother, Gail Car. The following petition supplies all the relevant facts.

It is known that approximately 43 percent of marriages in America end in divorce. Even though millions of our children's lives are dramatically affected by the family law child custody system, the shifting character of relationships in the United States is having an equally important impact on children's lives. By 1994 approximately 11 percent of children were born out of wedlock, and 40 percent of American children would live with “their unmarried mother and her boyfriend some time before their 16th birthday….” In 1994 of the 18.6 million children living in single-family homes, two-thirds of those children had one parent as a result of divorce or legal separation. Research has also demonstrated a direct correlation between unwed pregnancy or single-parent families and poverty, poor health, child abuse, and juvenile delinquency. It is therefore not surprising that annually there are more than 2.9 million reports of child abuse in this country and that a significant percentage of those reports result in child dependency actions.

Family child custody and child dependency proceedings take up a significant portion of states' judicial calendars. For instance, in California in the 1998–9 fiscal year there were 1,594,807 civil filings. Of those civil filings, there were 155,920 family law cases and 41,890 child dependency proceedings, for a cumulative total of 12.5 percent of all civilly litigated disputes.

Because many parties in both family custody and in child dependency cases do not have a constitutional or statutory right to appointed counsel on appeal, it should not be surprising that appellate courts have rarely discussed legal ethics in those proceedings. “Historically, family and juvenile courts have been largely pro se tribunals in which legal representation was permitted, but not encouraged.” And during the last decade of “limited appellate court resources and burgeoning caseloads,” some appellate jurists have bemoaned the “general deterioration in the quality of appellate advocacy.” State bar association mandatory continuing legal education courses rarely involve appellate advocacy training, and there are few avenues for attorneys, once they graduate from law school, to receive formal training in appellate skills and/or specialized training in the custody and dependency appellate processes. This chapter focuses on those few areas of concentrated ethical decisions in appeals involving child custody and juvenile dependency and attempts to answer some of the following questions: (1) Is there a right to appointed appellate counsel; (2) who has standing to appeal; (3) what is the subject matter jurisdiction of appellate courts in these proceedings; (4) should appellate courts apply a narrow or liberal construction to appellate rules of court; (5) under what circumstances are trial issues waived from consideration on appeal; and (6) what are appellate counsel's ethical duties.

The United States spends considerable efforts trying to prove to itself and the world that it is as child-friendly and child-centered as the next country. But this is a difficult challenge for a country that remains alone in the world in its refusal to sign the United Nations Convention on the Rights of the Child, and it remains in the company of many significantly poorer nations in its refusal to guarantee a minimum degree of public support or health benefits for children. Even worse, for those who insist on ranking the United States as a nation devoted to the well-being of children, children comprise the largest group of extremely poor Americans. Worse still, the percentage of the population of children who are poor has grown considerably larger over the past generation, even as the United States has all but eliminated extreme poverty for the elderly.

According to the KIDS COUNT Data Book, published annually by the Annie E. Casey Foundation, there were more than 13 million children living in poverty in the United States in 2003, an increase of more than 500,000 since 2000. More than 4 million children currently live in households where no parent has worked within the past year. The Children's Defense Fund reports that more than 9 million children, more than 12 percent of all of America's children, go without any kind of health insurance.

INTRODUCTION

America's child custody and dependency systems would collapse if most cases were not disposed of through some form of alternative dispute resolution. However, overloaded systems are not merely a recent phenomenon. During the early child reform movements in the 1850s, child welfare systems were laden with children's cases. For instance, in 1879 the New York Children's Aid Society sent 48,000 poor New York children to live with another family, and “after its first fourteen years the New York Society for the Prevention of Cruelty to Children ‘investigated nearly 70,000 complaints of ill-treatment of 209,000 children. Prosecutions were pursued in 24,500 of these cases, resulting in almost 24,000 convictions and the removal of 36,300 children.’” So what has changed? What new pressures are forcing an ever-growing percentage of child abuse and child custody cases to settle prior to a formal adjudication?

First, the number of family law custody cases has exploded because of increased divorce rates in America:

PREFACE

All children subject to court proceedings involving allegations of child abuse and neglect should have legal representation as long as the court jurisdiction continues. These Abuse and Neglect Standards are meant to apply when a lawyer is appointed for a child in any legal action based on: (a) a petition filed for protection of the child; (b) a request to a court to change legal custody, visitation, or guardianship based on allegations of child abuse or neglect based on sufficient cause; or (c) an action to terminate parental rights.

These Standards apply only to lawyers and take the position that although a lawyer may accept appointment in the dual capacity of a “lawyer/guardian ad litem,” the lawyer's primary duty must still be focused on the protection of the legal rights of the child client. The lawyer/guardian ad litem should therefore perform all the functions of a “child's attorney,” except as otherwise noted.

These Standards build upon the ABA-approved juvenile justice standards relating to counsel for private parties (1979) which include important directions for lawyers representing children in juvenile court matters generally, but do not contain sufficient guidance to aid lawyers representing children in abuse and neglect cases. These Abuse and Neglect Standards are also intended to help implement a series of aba-approved policy resolutions (in Appendix) on the importance of legal representation and the improvement of lawyer practice in child protection cases.

Attorneys in child custody and child dependency proceedings are much more than mere litigators. One of the central roles in these emotionally charged legal arenas is acting as counselors, not only regarding legal issues but also on nonlegal issues. ABA Model Rule 2.1 provides that client representation includes reference to “other considerations such as moral, economic, social and political factors….” It is thus not surprising that in these disputes, which involve heightened sensitivity, confidentiality is a central concern of the parties. However, because the best interest of children is central to the child custody and juvenile dependency systems, conflicts with the duty of confidentiality often arise in contexts in which that confidential information demonstrates an admission of past child abuse or threats of future abuse.

This chapter discusses the often differing and sometimes conflicting balance between client confidentiality and children's safety. When is a judge permitted to disclose confidential data either to defend the court system or to educate the public, and under what circumstances must or can attorneys disclose confidential client data? Finally, what is the constitutional limit of the court's power to issue contempt citations for violations of confidentiality, and what sanctions are reasonably likely for attorneys who disclose confidential client information that can be both embarrassing and incriminating for parties in concurrent criminal child abuse actions, as, for instance, in Conduct of the Honorable Ronald D?

Alex de Tocqueville noted that “people in democratic states do not mistrust the members of the legal profession, because it is known that they are interested to serve the popular cause; and the people listen to them without irritation because they do not attribute to them any sinister designs.” Times have changed. Today, polls by myriad sources indicate that the public's trust and respect for attorneys have atrophied since de Tocqueville's era. It is not uncommon to confront contemporary descriptions of attorneys as “parasites, hired-guns of large corporations or grasping clients, motivated by greed and neglectful of the public good.” The public's principal complaints about lawyers concern (1) perceptions of greed; (2) a minimal commitment to pro bono publico obligations; (3) fomenting a system of nastiness, rather than cooperation through alternative dispute resolution; and (4) a failure of attorney self-regulation to control and cure deficiencies in the attorney-client relationship. For instance, a poll by the American Bar Association found that 42 percent favor expanding “alternatives to lawsuits by encouraging use of mediation, arbitration, and other alternative dispute resolution programs.” And 56 percent of the public believes that “lawyers tend to recommend more legal work than necessary because it increases their fees.”

However, the most critical public attitude is the public's distrust of attorney self-regulation; “lawyer discipline is an oxymoron” according to a majority of the public.

It might seem unusual for a book on legal ethics to begin with the complicated issue of conflicts of interest. However, if an attorney waits until after the initial client interview to determine whether a conflict exists or is likely to develop during representation, the attorney might prejudice the client by having to conflict off the case at some later time. Conflicting off the case will not only lengthen the litigation time-line by requiring another attorney to prepare the case but also will increase the client's emotional trauma inherent in contested litigation. Therefore, before an attorney considers the detailed facts inherent in any case, engages in an intake or initial client interview, and even reviews all the available evidence, counsel should consider actual and potential conflicts of interest. Furthermore, it is essential for counsel to continually assess conflicts questions until the completion of the client's representation.

CHILDREN'S ATTORNEYS: POTENTIAL DIVIDED LOYALTIES

Because of the tremendous expense of representing parties in child dependency cases, one money-saving shortcut is to use a system in which a single legal office represents multiple parties. For instance, a government attorney office, such as a county counsel, district attorney, or public defender office, might represent parents, children, and/or the Department of Child and Family Services in different cases. However, because of the possibility of conflicts of interest, disclosure of confidential data, and breaches of loyalty, such multiparty representation usually violates the canon of ethics.