[Rev. 6/29/2024 2:27:13 PM--2023]
NEVADA RULES OF CONDUCT FOR LAWYERS REPRESENTING CHILDREN IN CHILD WELFARE CASES
ADOPTED
BY THE
SUPREME COURT OF NEVADA
____________
Effective January 1, 2023
and Including
Amendments Through September 29, 2023
TABLE OF CHANGES TO NEVADA RULES OF CONDUCT FOR LAWYERS REPRESENTING CHILDREN IN CHILD WELFARE CASES
Key: “A” amended; “N” added; “R” repealed; “T” transferred.
Effective
Rule Key Date
2..................... N.................................. 1/1/23
3..................... N.................................. 1/1/23
4..................... N.................................. 1/1/23
5..................... N.................................. 1/1/23
IN THE SUPREME COURT OF THE STATE OF NEVADA
In the Matter of RULES OF CONDUCT FOR LAWYERS REPRESENTING CHILDREN IN CHILD WELFARE MATTERS.
ADKT 598
ORDER ADOPTING RULES OF CONDUCT FOR LAWYERS REPRESENTING CHILDREN IN CHILD WELFARE MATTERS
________
Whereas, on May 25, 2022, the Honorable James W. Hardesty, Associate Chief Justice of the Nevada Supreme Court, filed a petition seeking adoption of proposed Rules of Conduct for Lawyers Representing Children in Child Welfare Cases; and
Whereas, this court solicited public comment on the petition and public hearings were held in this matter on June 21, 2022, and September 22, 2022; accordingly,
It Is Hereby Ordered that the proposed Rules of Conduct for Lawyers Representing Children in Child Welfare Cases shall be adopted and shall read as set forth in Exhibit A.
It Is Further Ordered that the Rules of Conduct for Lawyers Representing Children in Child Welfare Cases shall be effective on January 1, 2023. The clerk of this court shall cause a notice of entry of this order to be published in the official publication of the State Bar of Nevada. Publication of this order shall be accomplished by the clerk disseminating copies of this order to all subscribers of the advance sheets of the Nevada Reports and all persons and agencies listed in NRS 2.345, and to the executive director of the State Bar of Nevada. The certificate of the clerk of this court as to the accomplishment of the above-described publication of notice of entry and dissemination of this order shall be conclusive evidence of the amendment and publication of the foregoing rules.
Dated this 26th day of October, 2022.
BY THE COURT
Ron D. Parraguirre, Chief Justice
James W. Hardesty Lidia S. Stiglich
Associate Justice Associate Justice
Elissa F. Cadish Kristina Pickering
Associate Justice Associate Justice
Douglas W. Herndon
Associate Justice
NEVADA RULES OF CONDUCT FOR LAWYERS REPRESENTING CHILDREN IN CHILD WELFARE CASES
PREFATORY STATEMENT
In August 2011, the American Bar Association adopted the Model Act Governing the Representation of Children in Abuse, Neglect, and Dependency Proceedings (the Model Act), which was drafted under the auspices of the ABA Section of Litigation Children’s Rights Litigation Committee with the assistance of the Bar-Youth Empowerment Program of the ABA Center on Children and the Law and First Star. The Model Act incorporates some language from the provisions of the NCCUSL Representation of Children in Abuse, Neglect, and Custody Proceedings Act. The Model Act has been endorsed by the National Association of Counsel for Children and has been fundamental in the formulation of a model for quality child representation in Nevada. The Nevada Rules of Conduct set forth below incorporate the Model Act, as applied to existing Nevada law and procedure. To the extent that the Model Act contained rules already contained within the Nevada Rules of Professional Conduct, those were not included below. Comments following the rules below are the comments from the Model Act, with amendments to reflect the substance of the proposed rules and Nevada law.
Rule 1. Definitions. Reserved.
Rule 2. Applicability. These rules of professional conduct apply to lawyers representing children in abuse/neglect matters, including proceedings under NRS Chapters 432B and 128, as well as related collateral proceedings that affect the child’s welfare.
[Added; effective January 1, 2023.]
Rule 3. Duration of Representation.
(a) Commencement of representation. Representation of a child by a lawyer shall commence as soon as practicable following intervention by the child welfare agency into the child’s home and, if necessary, upon referral by the court.
(1) The child’s lawyer shall obtain placement information and meet with the client as early as possible to establish a lawyer-client relationship and identify the client’s objectives of representation.
(2) If necessary, or if required by local rule, the child’s lawyer shall submit all necessary documents to formally appear on behalf of the child, gain access to the court file, and obtain placement information at the commencement of representation.
(b) Conclusion of representation. A lawyer for a child shall remain as counsel for the child until one of the following occurs:
(1) All legal matters are concluded and all cases are closed by court order, for a child under the age of 18;
(2) The court does not have continuing jurisdiction pursuant to NRS 432B.591-.595 if the client has reached the age of 18 and all other collateral matters, if any, have resolved; or
(3) The lawyer is no longer able to represent the child as contemplated by Nevada Rule of Professional Conduct (RPC) 1.16, and has received permission from the appropriate court to withdraw.
[Added; effective January 1, 2023.]
Rule 4. Duties of a Lawyer Representing a Child.
(a) Nevada Rules of Professional Conduct. The child’s lawyer shall maintain a normal lawyer-client relationship with the child in accordance with the Nevada Rules of Professional Conduct. The child’s lawyer shall provide legal services for the child, and owes the same duties, including zealous advocacy, undivided loyalty, confidentiality, and competent representation, as are due to a client who is an adult. Nothing in these rules is intended to abrogate the lawyer’s ethical obligations set forth in the Nevada Rules of Professional Conduct.
(b) Client-directed representation.
(1) A child who is capable of expressing his or her objectives is capable of directing representation. When the child is capable of directing representation, the lawyer must abide by and advocate for the child’s expressed wishes, even if those expressed wishes are in conflict with the child’s apparent best interests.
(2) If the lawyer is unsure of whether the child is capable of directing representation, the lawyer shall follow RPC 1.14 to determine whether the child has diminished capacity to direct representation. The lawyer shall consult with the child, and may consult with other individuals or entities that can provide the lawyer with the information and assistance necessary to determine the child’s ability to direct representation. When a child has diminished capacity, the child’s lawyer shall make a good faith effort to determine the child’s needs and wishes. The lawyer shall, as far as reasonably possible, maintain a normal lawyer-client relationship with the client to the extent reasonably possible. During a temporary period or on a particular issue where a normal lawyer-client relationship is not reasonably possible to maintain, the child’s lawyer shall make a substituted judgment determination. A substituted judgment determination includes determining what the child would decide if he or she were capable of making an adequately considered decision, and representing the child in accordance with that determination.
(3) In formulating a substituted judgment determination, the child’s lawyer’s advocacy should be child-centered, research-informed, permanency driven, and holistic. The child’s needs and interests, not the adults’ or professionals’ interests, must be the center of all advocacy. For example, lawyers representing very young children must truly see the world through the child’s eyes and formulate their approach from that perspective, gathering information, and gaining insight into the child’s experiences to inform advocacy related to placement, services, treatment, and permanency. The child’s lawyer should be proactive and seek out opportunities to observe and interact with the very young child client. It is also essential that lawyers for very young children have a firm working knowledge of child development and special entitlements for children under age 5.
When making a substituted judgment determination, the lawyer shall take into consideration the child’s legal interests based on objective criteria as set forth in the laws applicable to the proceeding, the goal of an expeditious resolution of the case, and the use of the least restrictive or detrimental alternatives available.
(4) Because a child will naturally age, mature, and develop during the course of representation, the lawyer should continually reassess the child’s capacity to direct the lawyer.
(5) The role of a child’s lawyer is distinct from the role of a guardian ad litem appointed under NRS 432B.500. A lawyer for the child shall not serve as a guardian ad litem in the same case or in a related matter.
(c) Participation in proceedings. A child’s lawyer shall participate in any proceeding concerning the child with the same rights and obligations as any other lawyer for a party to the proceeding. The lawyer for a child can communicate the child’s legal position, and any other relevant supporting information, to the court in the same manner as any other lawyer for any other party. Additionally, the child’s lawyer shall advise the child of the child’s right to participate in the proceeding, and the means by which the child may participate. If the child is required to attend the proceeding by court order, subpoena, or otherwise, the lawyer shall counsel the child about his or her obligation. If the child does not want to participate, or wishes to waive the right to attend after being informed about the child’s rights and the nature of the hearing, the lawyer shall inform the court of the child’s decision not to attend.
(d) Duties of the child’s lawyer. The duties of a child’s lawyer include, but are not limited to:
(1) Taking all steps reasonably necessary to represent the client in the proceeding, including but not limited to: interviewing and counseling the client, preparing a case theory and strategy, preparing for and participating in negotiations and hearings, drafting and submitting motions, memoranda, and orders;
(2) Reviewing and accepting or declining, after consultation with the client, any proposed stipulation for an order affecting the child and explaining to the court the basis for any opposition;
(3) Taking action the lawyer considers appropriate to expedite the proceeding and the resolution of contested issues;
(4) Where appropriate, after consultation with the client, discussing the possibility of settlement or the use of alternative forms of dispute resolution and participating in such processes to the extent permitted under the law of this state;
(5) Meeting with the child prior to each hearing, to include regular in-person meetings every quarter; however, the child’s lawyer may vary the frequency and the modality of client meetings under exceptional circumstances;
(6) Where appropriate and consistent with both confidentiality and the child’s legal interests, consulting with the CASA or guardian ad litem;
(7) Investigating and taking necessary legal action regarding the child’s medical, mental health, social, education, and overall well-being, whenever possible;
(8) Visiting the home, residence, or any prospective residence of the child;
(9) Seeking court orders or taking any other necessary steps in accordance with the child’s direction to ensure that the child’s health, mental health, educational, developmental, cultural, and placement needs are met; and representing the child in all proceedings affecting the issues before the court, including hearings on appeal or referring the child’s case to the appropriate appellate counsel as needed. Nothing in this rule requires the child’s lawyer to represent the child in proceedings outside the proceedings for which the lawyer was appointed.
[Added; effective January 1, 2023.]
Rule 5. Quality of Representation.
(a) The court shall appoint as the child’s lawyer an individual who is qualified through training and experience. Lawyers practicing in dependency court or in cases arising out of NRS Chapters 432B and 128 shall receive initial training and annual continuing legal education that is specific to child welfare law.
(1) Lawyers practicing solely in child welfare law shall receive a minimum of 12 hours of initial training and no less than 6 hours of continuing legal education in child welfare each year.
(2) Lawyers who are appointed to represent a child in child welfare cases or who receive compensation for representing a child and otherwise have a caseload consisting of matters outside of child welfare or dependency matters should be proficient in Nevada and federal law on child welfare, as well as relevant social and child development science. Those lawyers shall receive 12 hours of initial training over a 2-year period, and no less than 2 hours of continuing legal education each year. For good cause shown, the court may waive some or all of the educational requirements to appointed counsel in a given case.
(3) Lawyers who volunteer to represent a child on a pro bono basis shall receive a 2-hour introduction to child welfare law in Nevada. Pro bono children’s lawyers shall be assigned an attorney qualified under subsection 1, above, as a mentor by the agency or firm assigning the case to the volunteer. The agency will also advise the pro bono attorney of opportunities for continuing education, updates on the law as they become available, and other opportunities for support.
(b) Lawyers for children should also avail themselves of training in the areas of trauma, child development, and cultural humility and bias, as well as domestic violence, substance abuse and addiction, and their respective impacts on children.
(c) Lawyers for children shall continually assess the demands of their caseloads, available resources, and the need for continuing education to ensure that child clients receive zealous advocacy and competent representation.
[Added; effective January 1, 2023.]