How NY’s New Ethics Rules Affect Lawyers With Children as Clients

March 27, 2009

boy_in_court_picAndrew Schepard and Theo Liebmann, in the March 11th edition of the New York Law Journal, listed three important changes in New York’s new Rules of Professional Conduct as they apply to lawyers representing children in Family Court. (I explored how the new rules would affect conflicts of interest here.)

Schepard and Liebmann’s main focus was on lawyers representing children and how the new rules would clarify an attorney’s guidelines with regard to when they may take a different position from that of their child client. They pointed out the current rule, as layed out by the Chief Judge in Administrative Order § 7.2, is substantially similar to the new Rule 1.14(b). The new rule states that  “[w]hen the lawyer reasonably believes that the client (a) has diminished capacity, (b) is at risk of substantial physical, financial or other harm unless action is taken and (c) cannot adequately act in the client’s own interest, (then) the lawyer may take reasonably necessary protective action…” (emphasis and parentheses added) This “reasonably necessary protective action” includes substituting the law guardian’s judgment for the child’s judgment when those three requirements are met.

These rules set a high bar that a Law Guardian must meet before she may supplant her judgment for her child-client’s judgment. Schepard and Liebmann give the example of 10 year old Amkia P. (684 N.Y.S.2d 761 (Fam. Ct NY 1999)) who required medication for a life-threatening condition. She was in temporary Foster Care, but desired to return to live with her mother, who the Family Court believed would be not be capable of properly caring for her. Despite Amkia’s protestations, her Law Guardian advocated that she remain in temporary foster care.

Under the new rule, the Law Guardian in that case probably would have been allowed to substitute her judgmenet for the judgment of the client under those facts because Amkia appeared to be of diminished capacity (as a 10 year old), “at risk of substantial physical… harm,” and unable to take care of her own interests (again, she was only 10).

As Schepard and Liebmann point out, a Law Guardian in such a situation should think twice and three times before supplanting a client’s judgment with her own because a court will find that she should have advocated for home care to ensure that Amkia received the medicine she needed.

The new rules offer more guidance than attorneys may have had before, but they do not make these difficult judgment calls much easier.

Picture courtesy of George I. Kita.

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8 Responses to “How NY’s New Ethics Rules Affect Lawyers With Children as Clients”


  1. […] Court of the State of New York . We wrote about an attorney’s obligations to a child clint HERE. Attorneys representing children in New York Family Courts have the title “attorney for the […]

  2. bennett joey Says:

    from 2010 my were appointed a law guardian fro Queens county court named peter porcasi. He did not represent my children zealously as the states,actually he abandon his child clients. He would appear in court as though he was seeing our childre. I sent a complaint to the grievance committee in brooklyn ny and was told my chldrens complaint would be appropiate for the civil court arena, or I should file a motion or a appeal. An assistant counsel named kathyrm Gurrie ent me that response, However i will not stop until this law guradian peter porcasi from the Queens county area is prosecuted for his misconduct please can you provide me with some helpful information withuot letting the Brotherhood lawyers thinking prevent you from playing fair. This counsel was removed from representing these children by a judicial officer in part one of the family court in Queens county from misconduct in representing these children.

  3. bennett joey Says:

    correction for the above i meant to say the counsel did not represent his clients as the law requires.My name is joey bennett, please be advised I have nothing to gain from telling a lie. These are minors with intentions of being returned home to there parents. However this counsel did not visit these children he did not do any investigation in regars to the case, he never visited the foster home as well as speaking with the foster parents. OH only one of my sons spoke with him once by via telephone and that was it. there was never anymore contact from this counsel with these children. His name is peter porcasi children have to be protected from beong appointed a counsel with the behavior of this person I will not stop contacting this grievance committee notuntil they investigate the misconduct of this man and then prosecute him.

  4. MR JOEY BENNETT Says:

    IT IS PERTINENT I REPLY TO MY COMPLAINT AGAINST LAW GUARDIAN PETER PORCASI IN THE QUEENS FAMILY COURT. FIRSTLY,PLEASE FORGIVE ME FOR THE INCORRECT SPELLING IN MY PREVIOUS COMPLAINT.PETER PORCASI WAS ASSIGNED TO REPRESENT MY TWO MINOR CHILDREN IN THE YEAR 2003.ACCORDING TO NEW YORKS ATTORNEY ETHICS RULES,HE IS OBLIGATED TO ZEALOUSLY REPRESENT THESE MINORS ACCORDING TO THE LAW AND NEW YORKS ETHIC RULES.FOR A PERIOD OF EIGHT YEARS PETER PORCASI WAS ABLE TO CAMOUFLAGE HIMSELF IN THE FACE IN GOD WE TRUST.I REPORTED HIS BEHAVIOR AS WELL AS HIS NEGIGENCE AND ABANDOMENT OF BOTH MINORS RIGHTS.HIS ARROGANCE WAS SO HARSH HE DID NOT INVESTIGATE THE BOWELS OF THE CASE AND THE FOSTER HOME AS WELL AS THE FOSTER PARENTS. THERE SAFETY AND WELFARE WAS IGNORED.PETER PORCASI DID NOT SPEAK TO THESE CHILDREN BY TELEPHONE LET ALONE IN PERSON.THE ONLY CONCERN PETER PORCASI HAD WITH THESE MINORS WERE TO KEEP THEM IN A FACILITY, I QUOTE FOR TROUBLE CHILDREN.PARENTS MYSELF AND MY WIFE WERE NEVER SPOKEN WITH BY PETER PORCASI REGARDING THE RETURN OR ADOPTION OF OUR CHILDREN. EVEN WE WERE IGNORED.NUMEROUS ETHICS WERE VIOLATED BY THIS COUNSEL. I REPORTED HIS MISBEHAVIOR TO THE ETHICS COMMITTEE IN BROOKLYN NEW YORK TWICE, AND WERE TOLD THEY DO NOT HAVE JURISDICTION TO INVESTIGATE HIS BEHAVIOR.THEY WENT ON TO SAY THE FAMILY COURT OF NEW YORK. I WILL BE FILING A COMPLAINT AGAINST THIS COUNSEL IN THE FAMILY COURT ARENA. HOWEVER THE COURT SYSTEM AND CHILDREN,PARENTS,AND THE RESPECT OF THE COURT HAS TO BE PROTECTED FROM ATTORNEYS LIKE PETER PORCASI FROM THESE CHILDREN IN NEED OF ZEALOUSLY REPRESENTATION IN THE FAMILY COURT OF NEW YORK.

  5. Phil Says:

    Harriet Weinberger and the Law Guardian review?? What a absolute joke. I have written them with clear and concise illegal actions on behalf of a Law Guardian named Ken Bunting in Westchester Family Court. They will do absolutely nothing because they are simply a protectionist group for the Law Guardians, they are there to shield Law Guardians and protect the business of being a Law Guardian. It’s a money generator and an easy business since you represent children you can have imaginary conversations with clients, steer and intimidate children to your own purposes and have no fear of reprisal in NY.
    In this video below you will see a former judge/referee who was removed (Or “re-assigned”) from Westchester talking about the corruption in Westchester to NY Senator Sampson. He talks about witnessing this crap and doing nothing for years and guess what happened??….nothing…..welcome to NY State Ethics (or the supreme lack of ethics)

  6. shocked in new york Says:

    Almost every law guardian I have had to deal with or have known others who have been given a very bad deal by. I am now going to file my own complaints with just about every office in New York I can get to listen in hope that this woman can not do what she did to me. Ethics violated by all means to the limit!….Corruption!….How can she represent my daughter now when she represented my estranged husband in a cival matgter and she also worked for the attorney who I hired for my divorce from my first husband…Holy New York….thanks for looking out for the best interest..of who…

  7. John Mylett Says:

    Lawyers who serve as “attorney for the child” are subject to the same ethical rules as any other lawyer. They must zealously advocate for the child’s wishes UNLESS the lawyer reasonably believes the child-client (a) has diminished capacity, (b) is at risk of substantial physical, financial or other harm unless action is taken and (c) cannot adequately act in the client’s own interest. This is a very high bar that a law guardian must meet before he/she may supplant his/her judgment for the child-client’s judgment. Stick to your guns and don’t give the law guardian any benefit of the doubt because while most law guardians are ethical and responsible, clearly some are bad apples and our children deserve nothing but the best. The attorney for my young daughter is the worst and he will be investigated once again by the nys atty grievance committees. Best Wishes, John

  8. libbyr Says:

    ade fasanya worst lawyer for chiildren ever and needs to be investigated and prosecuted for taking bribes. fasanya had ex parte communications with judges, referees, and was arrogant and abusive to me and to my children. He took my children and gave them to my ex husband due to my ex giving him referrals and bribes. He must be taken off his position as a judge in manhattan family court as he did not earn this reward or is it that the court wants this corrupt and unethical man to help churn more cases and make referrals for kids to go to foster care for no reason other than to make money for the state and city. Harriet Weinberger needs to be removed from lawyer for kids panel as she lets incompetent lawyers stay on 18b panel and those who engae in misconduct such as Christine Marshall who is abusive to litigants and quits cases endangering the litigants rights and Steve Greenfield who tries to extort money from litigants to keep cases going when he is too lazy to offer proper representation and they must not be permitted to be on 18b panel anylonger.


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