Right to Counsel in Contested Adoption

Source: Right to Counsel in Contested Adoption

Right to Counsel in Contested Adoption

L.A., a poor woman, turned to the Children Home Society of New Jersey (CHS) for help with her young special needs daughter. CHS temporarily placed her daughter with foster parents.  Because she feared  she would not be able to financially support her daughter’s special needs, L.A. initially was inclined to put her daughter up for adoption.  She ultimately changed her mind. Nevertheless, CHS  decided that the girl would be better off with her foster parents and, therefore,  moved to terminate L.A.’s  parental rights.  After a two day trial in which she represented herself L.A.’s parental rights were terminated.  No abuse or abandonment was alleged. On appeal, L.A. challenged the trial court’s determination, arguing, among other things, that in an action to terminate parental rights an indigent respondent has a right to appointed counsel regardless of whether the action was instituted by the State or a private agency.

It is well established that if the State moves to terminate parental rights that parent has a right to appointed counsel.  Until now  if the contested adoption is moved by a private adoption agency the parent has had no right to such representation.   But in October the Appellate Division of the Superior Court declared those days at an end.  In Matter of Adoption of J.E.V. the Appellate Division concluded:

After the elimination of the death penalty, we can think of no legal consequence of greater magnitude than the termination of parental rights. Such termination “sever[s] the parent-child bond, … is irretrievably destructive of the most fundamental family relationship,” and “the risk of error … is considerable… “[A] natural parent’s desire for and right to the companionship, care, custody, and management of his or her children is an interest far more precious than any property right.”

Judge Ellen Koblitz, in a passionate eloquent opinion, concluded for the panel that “L.A., when facing a consequence of such magnitude, imposed by the action of a State-licensed agency, was entitled to appointed counsel.”  That conclusion is eminently correct and past-due.  When a child is taken from a parent by state action it should make no difference whether the initiative is by a public entity or a private adoption agency like CHS.  The court’s action provides the state action warranting the protection of counsel for the natural parent.

But the remedy is problematic.  The adoptive parents’ assert that the court lacked statutory authority and that the birth mother waived her right to counsel.  L.A. adhered to the principle stand fast if you stand well and opposed the cert petition.  The state Supreme Court granted certification on December 17, 2015 framing the question as “In a private adoption matter, does an indigent parent facing termination of parental rights under New Jersey’s Adoption Act have a right to appointed counsel?”.

The Supreme Court set a peremptory briefing schedule – perhaps assign that  the right to appointed counsel will be upheld: but who should that be?  The Appellate Division panel had referred the matter to the Administrative Director of the Court, urging consultation with the Conference of Presiding Family Judges.  “The Madden [v. DelRan] list may have to be utilized to provide counsel” the opinion suggests.  That decision held that private lawyers have a duty to represent people for free where the Public Defender is not required to do so.  But the “Madden list”– an alphabetized list of attorneys prepared by Assignment Judges in each vicinage pursuant to which lawyers are assigned to represent indigent defendants on a pro bono basis —  is insufficient.    Free labor imposed by court directive – even on those with a lawyer’s professional duty – will often be no match for the experience and resources of the statewide Office of the Public Defender, which represents parents  whose children have been removed based on allegations of abuse and neglect (Office of Parental Representation), the children who have been removed (Office of Law Guardian), and individuals involuntarily committed to State psychiatric facilities (Office of Mental Health Advocacy).

The Appellate Division asked the Public Defender to represent L.A. but the PD refused, saying it lacked statutory authorization to act in private agency actions.  Private counsel was then appointed.  But as the panel observes “(o)ur Supreme Court has held that indigent parents in private adoption matters are entitled to free transcripts, provided by the plaintiffs, or if plaintiffs are financially unable to provide the transcript, then by the Office of the Public Defender (OPD).    In re Adoption of a Child by J.D.S., 176N.J. 154  (2003).”

The New Jersey State Bar Association has decided to intervene as amicus curiae.  It is to be hoped that the Association will urge  that the principle of the right to counsel should be extended by the court to authorize the Public Defender to represent the indigent parent in privately initiated contested adoption matters.  The children and the parents are owed equal and competent representation consideration.  Regardless of who initiates the proceeding it remains the State which terminates completely the rights of the parent and severs the child from mother and father.  Such a view of state action prevailed in Edmonson v. Leesville Concrete, a 1991 case in which the United States Supreme Court held that empaneling a jury was a state function which subjected a lawyer’s peremptory jury challenge to the 14th Amendment principle of equal protection of the law.

– George Conk

NC State Bar & LegalZoom Consent Decree re UPL Available

Last month, the North Carolina Business Court entered a Consent Judgment in litigation between the North Carolina State Bar and LegalZoom.com.  (LegalZoom filed that lawsuit seeking a declaratory judgment that it is not engaged in the unauthorized practice of law (in violation of the NC General Statutes);  the State Bar filed a counterclaim alleging that LegalZoom’s activities constituted the unauthorized practice of law.)  You may find the State’s Bar summary here and the consent judgment here.

ABA Issues Final Model Regulatory Objectives (to be voted on Feb. 2016)

The ABA Commission on the Future of Legal Services has issued its final Resolution & Report: Regulatory Objectives.   This Resolution is scheduled for a vote at the February 2016 San Diego ABA Midyear Meeting.  The draft objectives can provide the basis for a useful discussion in Chapters 2 and 9 regarding the purpose of regulation.  (The ABA/BNA Lawyers’ Manual article about these regulatory objectives is available here.)

Full disclosure:  I am on record as supporting regulatory objectives.  As I explained in my Oct. 30, 2015 comment letter, I believe that regardless of what one thinks about recent market and regulatory developments, it is useful to have regulatory objectives:

My final comment is that it is important for the Commission and ABA members not to allow controversies about regulatory developments in the United States or elsewhere to derail the discussion about Model Regulatory Objectives.  Many of the recent lawyer regulatory developments have been quite controversial.  As I have noted in several articles, one way to think about both market and lawyer regulation developments is that they present issues regarding the “who-what-when-where-why-and-how” of lawyer regulation.    For example, the North Carolina Dental Board case and the 2007 UK Legal Services Act raise issues about who it is that should regulate lawyers; LLLT, entity regulation, and ABS developments raise issues about what it is that should be regulated; the UK’s outcomes focused regulation raises questions about how regulation should occur.  While these who-what-when-where-why-and-how issues have become intertwined in particular jurisdictions, it is important for U.S. jurisdictions to recognize that these issues are separable. 

I believe that it is exceedingly important for a jurisdiction to ask itself the “why” question – why does the jurisdiction regulate lawyers and what it is trying to accomplish?  I don’t think that asking the question of why a jurisdiction regulates presupposes a particular answer to one of the controversial “who-what-when-where-or-how” lawyer regulation issues.  Moreover, failing to ask the “why do we regulate?” question doesn’t mean that the difficult issues are going to go away.  Whether one likes it or not, there are market and regulatory developments in the United States and elsewhere that will be cited during regulatory debates.   If a regulator can say what it is trying to achieve, its response to a particular issue – whatever that response is – should be more thoughtful and should have more credibility.  It seems to me that this is in everyone’s interest. 


NOBC Posts Resources on Global Developments

The National Organization of Bar Counsel (NOBC) is an organization “of legal professionals whose members enforce ethics rules that regulate the professional conduct of lawyers who practice law in the United States, Canada and Australia.”  When she was president of the NOBC, Tracy Kepler created an International Committee, which decided to create 4 subcommittees to investigate and provide information to NOBC  members about four areas of inquiry: Alternative Business Structures; Entity Regulation; Alternative Licensure ; and State and International Reciprocity

The work product from these committees has now been posted on a new NOBC “Global Resources” webpage.  These new pages contain useful information.  For example, the FAQ document about Entity Regulation was prepared with input from current or former US, Australian, Canadian and UK regulators, along with academics.   (The Entity Regulation Committee plans to update its materials periodically.)  These materials can be particularly useful when teaching Chapter 2, Chapter 3 (fee splitting) and Chapter 9.

ABA Commission issues Draft Regulatory Objectives

The ABA Commission on the Future of Legal Services has circulated for discussion a draft Resolution and Report on “ABA Model Regulatory Objectives.”   The draft resolution “urges each state’s highest court, and those of each territory and tribe, to be guided by the ABA Model Regulatory Objectives to help (1) assess the court’s existing regulatory framework and (2) identify and implement regulatory innovations related to legal services beyond the traditional regulation of the legal profession.”  The ABA’s proposed Model Regulatory Objectives are similar, but not identical, to those included in Section 1 of the 2007 UK Legal Services Act, in Nova Scotia, and suggested by some commentators.

The ABA/BNA Lawyers’ Manual has a story about  the regulatory objectives here.

Third Circuit affirms lower court opinion finding Pennsylvania’s reciprocity admission rule constitutional

The Third Circuit recently affirmed the lower court’s opinion that found Pennsylvania Rule of Admission 204 constitutional.  This rule allows experienced attorneys to be admitted to the Pennsylvania bar without taking the Pennsylvania bar exam provided they are barred in a “reciprocal state,” that is, a state that similarly admits Pennsylvania attorneys by motion without requiring them to take that state’s bar exam.

Regulator(s) for English barristers approve changes to the “cab rank rule” regarding the “duty to accept” cases

The Bar Standards Board (BSB) is the “frontline” regulator for barristers in England and Wales; the overarching regulator is the Legal Services Board (LSB).

Yesterday the LSB approved a proposal from the BSB to change the “cab rank rule” which says, in essence,  that barristers are required to accept clients who request their services.  (In other words, they are similar to “taxi cabs” and have to accept the person who “hailed” their services.)

The new rule allows barristers to refuse work from a professional client who, in the reasonable opinion of the barrister, presents an unacceptable credit risk.  (The previous rule only allowed barristers to decline work from solicitors on a specified list.)  For information on the history of this rule and the consultations, see here and here.

For those teaching Professional Responsibility, the English cab rank rule, even as amended, can be contrasted with the ABA Model Rules.  The only mandatory ABA Model Rule that contains a “duty to accept” cases is found in ABA Model Rule 6.2 regarding court appointments. (Rule 6.1 encourages but does not require the acceptance of a certain number of pro bono cases).

July 2015 International Conference of Legal Regulators’ materials online

The International Conference of Legal Regulators is a group of regulators that first met in London in September 2012.  The idea behind the ICLR is that those who regulate lawyers face similar issues and would benefit by global conversations on these topics.  (For example, regulators around the world face issues related to the impact of technology, globalization, & market disruption and issues of substance abuse by lawyers).

The ICLR met in San Francisco in 2013 (in conjunction with the NOBC meeting), London in 2014, and Toronto in 2015.    You can access the materials from the 2015 Toronto ICLR Conference here; the materials from prior conferences are available as links from the current ICLR homepage.   For more information about the creation of the ICLR, see this article about its formation. Legal profession regulators have been slower to form international networks than have some other types of regulators – for example, there are international networks of banking, antitrust, and medical regulators.

Blog Discussion of 2nd Circuit decision that Skadden contract lawyers are [potentially] entitled to overtime pay because they weren’t engaged in the practice of law

The Faculty Lounge has a lengthy post discussing the recent Second Circuit decision reversing the FRCP 12(b)(6) dismissal of a potential class action lawsuit by a contract lawyer doing document review for Skadden.  (The story also appeared in a recent ABA e-Journal article.)  The blog post – and comments – are worth reading. (As of this morning, however, I didn’t think the 11 blog comments sufficiently addressed the relationship between UPL laws and the UPL safe harbor provision found in Rule 5.5 and which view of UPL would “trump,” given the fact that in many states, these two stem from different branches of government).

SDNY Rejects Jacoby’s Suit Challenging Rule 5.4’s Prohibition on Outside Investment & Nonlawyer Partners

As the ABA Journal reports, the U.S. District Court for the Southern District of New York has dismissed a complaint brought by law firm Jacoby & Myers challenging Rule 5.4’s ban on nonlawyer partnership & outside investment in law firms.  This follows a remand from the Second Circuit. Lawyers for the plaintiffs have said they plan to appeal the decision to the Second Circuit.  The suit, which raises 1st and 14th Amendment arguments, cited ideas discussed by casebook author Renee Knake.

Outside investment in law firms, which is sometimes referred to as alternative business structures or ABS, is available in England and Wales and Australia (and is under consideration in parts of Canada) but remains controversial.  For example, the ABA Commission on Ethics 20/20 circulated a discussion paper on the topic, but in the face of negative reaction announced that it would not consider the issue further.   (See here for my article on the work of the Ethics 20/20 Commission).

Will Lawyers Follow Doctors in Providing Legal Services through Skype?

The New York Times describes how the practice of providing of medical advice, including the prescription of medicine, through the internet is expanding, and at the same time meeting resistance from some doctors.  Although law firms already provide advice to businesses and wealthy individuals through video communication, could internet video calls become a common way for lawyers to meet, and provide services to, middle income clients and small businesses?  These developments raise issues relating to creation of the lawyer-client relationship, competence/malpractice, confidentiality, conflicts, and future directions for business and technology of legal practice.

TX Supreme Court Upholds (Arguably) One-Sided Lawyer Services Agreement

This spring, the Texas Supreme Court held that there was nothing “substantively unconscionable” about a lawyer-client services agreement specifying that the client and firm will arbitrate disputes that arise between them, except for claims made by the firm for recovery of its fees and expenses. Royston, Rayzor, Vickery & Williams, L.L.P. v. Lopez (2015 WL 3976101). The Court of Appeals had sided with the client in finding unconscionability in this “one-sided agreement,” concluding that the contract facially favored the law firm by giving it the right to litigate claims for its fees and expenses while requiring the client to arbitrate all disputes, including malpractice. The Court declined to require lawyers to explain such provisions, noting that prospective clients who sign such contracts “are deemed to know and understand the contracts’ content and are bound by their terms on the same basis as are other contracting parties.”

Richard Glossip- likely innocent – faces execution

The fundamental flaw in our capital punishment practice is arbitrariness in administration.  We have noted that race is an arbitrary determinant  But the untouchable has been prosecutorial discretion.  The result of that is that a handful of prosecutors seek the death penalty.  County by County disparity prevents like cases from being treated alike.  Leigh Bienen (Northwestern) developed this point comprehensively in her 1988 study for the New Jersey Office of the Public Defender The Reimposition of Capital Punishment in New Jersey: The Role of Prosecutorial Discretion.  The state’s Supreme Court responded with a long term program of proportionality review.  That sincere but failed effort was rigorous but fundamentally flawed by the failure to confront the issue of statewide disparity of outcomes inevitable where each county prosecutor could make his/her own choice of when to seek the death penalty.  Mark Graber at Balkinizaton discusses the case of Richard Glossip, an emblematic example of the dangers of unfettered prosecutorial discretion. – gwc

OTHERWISE: Richard Glossip- likely innocent – faces execution.

by Mark Graber

In sum, Richard Glossip is likely to be executed because capital punishment enhances prosecutorial power to secure unreliable and arbitrary death sentences.  

Canada’s largest legal province creates task force to consider more proactive lawyer regulation

During its June 25, 2015 meeting, the governing body of The Law Society of Upper Canada, which regulates Ontario lawyers, approved the creation of a task force to study compliance-based entity regulation (and another Task Force to promote wellness and address mental health and addiction issues.)  The LSUC action was based on a report found here which was prepared by the Law Society’s Policy Secretariat and contains useful background information and a proposed structure for each task force.

The information about the task force on compliance-based entity regulation starts on p. 8. The Report explains at paragraphs 30-31 that “Compliance based regulation shifts regulatory emphasis from responding to complaints and enforcement through discipline to a proactive approach in which goals, expectations and tools for licensees are established. This means that licensees can themselves ensure that they have appropriate systems and processes in place to achieve regulatory compliance. Compliance-based regulation has been generally been implemented together with entity regulation. The goal is the improvement of regulatory results through a set of defined objectives that all legal services providers seek to achieve, on the basis that practice processes and systems are most effectively addressed at the firm or entity level.” See here.

 The LSUC press release about the new Task Force is found here.  For information showing US interest in proactive lawyer regulation, see the Session 1 materials from the ABA CPR’s 40th National Conference on Professional Responsibility held in Long Beach and a forthcoming Entity Regulation FAQ document that will be posted on the National Organization of Bar Counsel’s NOBC webpage.

License to practice law granted to undocumented immigrant

From the New York Times comes news that Cesar Vargas has been admitted to practice law in New York, despite his status as an undocumented immigrant:

His legal fight to become a lawyer lasted three years. This week, Cesar Vargas, a Mexican-born 31-year-old New Yorker, became the first immigrant in the state without legal status to be approved to work as a lawyer.

An appellate panel of the State Supreme Court approved his application to the bar on Wednesday, overturning a 2013 decision by a committee that had denied his application based on his immigration status but had asked the court to rule.

In its decision, the state judiciary did what the Legislature in Albany has not been able to do: establish at least a modicum of immigration policy change.

The decision could be a test case, not only for the city, but also for the country, affecting hundreds of would-be lawyers and empowering immigrants who arrived as children to the United States and have been granted a reprieve from deportation.

Read the full article here.

LegalZoom files antitrust lawsuit against the North Carolina State Bar

Shortly after the Supreme Court’s 6-3 opinion earlier this year affirming the Fourth Circuit’s decision in North Carolina State Board of Dental Examiners v. Federal Trade Commission I wondered here whether legal services providers would be next. LegalZoom answered that question this week, filing a complaint in federal district court against the North Carolina State Bar.

Boston Marathon Bomber Trial and Allocation of Decision-making issues

This blog post from the “Best Practices for Legal Education” blog and the accompanying comments do a nice job of framing an “allocation of decision-making” issue:


Florida Bar Adopts New Professionalism Expectations

The Florida Bar Board of Governors adopted a new set of “Professionalism Expectations” on January 30, 2015. These Expectations  are divided into seven categories:

1. Commitment to Equal Justice and to the Public Good;

2. Honest and Effective Communication;

3. Adherence to a Fundamental Sense of Honor, Integrity, and Fair Play

4. Fair and Efficient Administration of Justice;

5. Decorum and Courtesy;

6. Respect for the Time and Commitments of Others; and

7. Independence of Judgment.

The vast majority of the expectations are expressed as “should” or “should not” which is to signal, as stated in the Preamble, that these are recommendations of correct action rather than matters covered by the Professional Rules of Conduct. A few of the expectations are stated as “must” or “must not” to indicate that they correlate with the Rules.

For a full copy, see here:

I am not convinced that this additional layer of recommendations will add much to the professionalism of Florida Lawyers, but let’s see.

H&R Block’s immigrant legal services…now shut down

From Richard Granat, H&R Block Forced to Shut Down Immigrant Document Service by the Bar | eLawyering Blog

H&R Block launched an experimental and innovative service in Texas in January to assist immigrants in completing INS forms. The forms were powered by software and H&R Block’s role was to provide a service to assist users in completing the forms within their offices– , but no legal advice was to be provided.

It didn’t take long for the organized immigration bar to shut this service down.

More details here:  http://buff.ly/1xn92pl