Children Need Lawyers: Part One, Tort Claims and the Juvenile Dependency Lawyer

This article was published in the Juvenile Law Reader, Volume 14, Issue 4, Winter 2017.

When a lawyer is appointed to represent a child client in a dependency case, the lawyer may discover that, in addition to the circumstances that brought the child before the court in the first place, the child also may have experienced abuse, neglect or other injuries while in the custody of the Oregon Department of Human Services (DHS). What are the dependency lawyer’s responsibilities when his or her child client may have a tort claim against DHS, foster parents or others involved in the child’s care? This article addresses the ethical duties of the dependency lawyer in this situation, best practices for addressing potential tort claims, practical considerations involved in working with tort lawyers, legal time limitations for tort claims, and malpractice exposure.

Part Two of this series discusses how children who suffer abuse, neglect and other injuries while in state custody lose their legal rights to bring tort claims against DHS and others, and presents proposals to preserve children’s rights in such circumstances.

  1. OSB Informal Advisory Opinion on Dependency Lawyer Duties

When an appointed lawyer learns that his or her child client has been injured due to acts or omissions of others, the lawyer can inform the child’s custodian and let the custodian decide whether and how to pursue a tort claim. The situation becomes more complicated if the child is in the legal custody of DHS and the potential tort claim is against DHS or persons working under its auspices, such as foster parents.[1]

The Oregon State Bar (OSB) has addressed the ethical duties of the court-appointed juvenile dependency lawyer when the lawyer learns his or her child client has potential torts claims against DHS or others. Sylvia Stevens, then general counsel of the OSB, wrote in a March 13, 2008 informal written advisory ethics opinion[2] that the dependency lawyer’s ethical obligations are dictated by the lawyer’s scope of representation.

Rule of Professional Conduct (RPC) 1.2 (b) permits a lawyer to limit the scope of representation, provided that the limitation is reasonable under the circumstances, and the client gives informed consent. Ms. Stevens wrote: “Comment [6] to ABA Model Rule 1.2, on which the Oregon rule is based, indicates that the scope of services to be provided by a lawyer may be limited by agreement with the client ‘or by the terms under which the lawyer’s services are made available to the client.’ ” The services of a dependency lawyer “are made available to clients under statute and, if [the lawyer] is working under contract to PDSC [Public Defense Services Commission], pursuant to terms of its contract with [the lawyer] or the contracting group of which [the lawyer is] a part. ORS 419B.195 refers to ‘the case,’ which suggests that [the lawyer’s] representation is limited to the specific dependency proceeding. The PDSC contact refers to ‘a case assigned under this contract’ and ‘all matters related to the appointment’ but specifically excludes ‘other civil proceedings.’ ”

Ms. Stevens stated that: “[T]he foregoing language suggests that your responsibilities are limited to the issues related to the dependency matter to which you are appointed. That may include advocating for the child’s best interests with regard to safety and other issues affecting temporary and permanent placement decisions. Expressing concern or disagreement about a placement that may be unsafe for the child is quite a different thing, however, than initiating a tort claim on behalf of the child for injuries resulting from that placement.” Ms. Stevens concluded: “Assuming, then, that the scope of representation is limited by statute and contract (or perhaps by order) when a lawyer is appointed to represent a child in a juvenile dependency matter, it follows that the lawyer has no ‘duty’ to address unrelated civil claims of which the lawyer might learn or become aware.”

In short, the OSB informal advisory opinion concludes that the court-appointed lawyer has no ethical obligation to “address” a tort claim that the lawyer learns about during the representation of his or her child client in the dependency matter. The bar’s opinion does not discuss whether, in the absence of an obligation to represent a child client in a tort matter, the dependency lawyer nevertheless is obligated to notify someone about the child’s potential tort claim or otherwise take steps to ensure the tort claim is not lost.[3]

  1. OSB Performance Standards

Additional guidance for the court-appointed dependency lawyer is found in performance standards adopted by the OSB. The standards, known as Specific Standards for Representation in Juvenile Dependency Cases, were updated by a work group, including members from academia as well as private practice and public defender offices, and approved by the OSB Board of Governors in June 2017. The purpose of the standards is to “alert the attorney to possible courses of action that may be necessary, advisable, or appropriate, and thereby to assist the attorney in deciding upon the particular actions that must be taken in a case to ensure that the client receives the best representation possible.” The foreword to the standards states that they are not intended to establish a legal standard of care: “These guidelines, as such, are not rules or requirements of practice and are not intended, nor should they be used, to establish a legal standard of care. Some of the guidelines incorporate existing standards, such as the Oregon rules of professional conduct, however[,] which are mandatory. Questions as to whether a particular decision or course of action meets a legal standard of care must be answered in light of all circumstances presented.”

Standard 2 G., under “The Obligations of the Lawyer for Children in Child Protective Proceedings with Action Items and Commentary,” states: “[t]he child-client’s lawyer should take appropriate actions on collateral issues.” It further provides: “The child-client’s lawyer may request authority from the appropriate authority to pursue issues on behalf of the child client, administratively or judicially, even if those issues do not specifically arise from the court appointment. Such ancillary matters may include * * * tort actions for injury.”

Standard 2 G. states that with respect to such collateral issues, the lawyer has no obligation to represent the child client, but may have a duty to take some steps to protect the child’s rights:

“The child-client’s lawyer does not have an ethical duty to represent the child client in these collateral matters when the terms of the lawyer’s employment limit duties to the dependency case. However, the child-client’s lawyer may have a duty to take limited steps to protect the child client’s rights, ordinarily by notifying the child-client’s legal custodian about the possible claim unless the alleged tortfeasor is the legal custodian. In the latter case, ordinarily the child-client’s lawyer adequately protects the child client by notifying the court about the potential claim. Whether this solution will work depends on whether a lawyer capable of assessing the potential tort claim is available to be appointed by the court. A juvenile court judge might well expect the child-client’s lawyer to recommend someone to whom the case could be referred.”

Although the standard states the dependency lawyer may have an obligation to take limited steps to protect the child’s potential tort claim, bringing the potential claim to the attention of the court is cast in aspirational rather than mandatory language:

“If a child-client’s lawyer, in the course of representing a child client under the age of 18, becomes aware that the child client has a possible claim for damages that the child client cannot pursue because of the child’s age or disability, the child-client’s lawyer should consider asking the court that has jurisdiction over the child client to either [1] appoint a guardian ad litem (GAL) for the child client to investigate and take action on the possible claim or [2] issue an order permitting access to juvenile court records by a practitioner who can advise the court whether to seek appointment of a GAL to pursue a possible claim.”

It is a simple matter to submit a motion and order informing the court about the potential tort claim and asking the court to take action. The motion should explain that:

  • The dependency lawyer has become aware that the child has a possible tort claim for damages that he or she cannot pursue due to his or her civil disability;
  • No action has been taken to protect the child’s tort claim;
  • ORS 419A.255(3) provides in relevant part that “no information appearing in the record of the case or in the supplemental confidential file may be disclosed to any person not described in subsections (1)(b) and (2)(b) of this section, respectively, without the consent of the court * * *.”;
  • The child’s lawyer may have an obligation to take limited steps to protect the child’s rights under Performance Standard 2 G., which obligation, if any, the lawyer is attempting to discharge by informing the court about the potential claim; and
  • The dependency lawyer moves the court to appoint a guardian ad litem to evaluate the potential claim or to order release of confidential court records to another lawyer who can assess the potential tort claim.

In practice, courts have had varied responses to such motions. The author’s information is only anecdotal, but in one case, a Washington County judge appointed a guardian ad litem in response to such a motion from the court-appointed counsel for the child’s father. In another case in another county, the court took no action at all. In Multnomah County, Judge Susan Svetkey reports that, in her experience, it is rare for potential tort claims of children in state custody to be brought to the attention of the court. There is no formal procedure for addressing such claims in Multnomah County. Judge Svetkey states that the court is interested in working with OPDS to develop a plan to educate dependency lawyers about their roles and responsibilities in such circumstances.

As noted above, Performance Standard 2 G. states: “A juvenile court judge might well expect the child-client’s lawyer to recommend someone to whom the case could be referred.” One method of matching a child with a tort lawyer, which is no longer available, was the Oregon Trial Lawyer Association’s Juvenile Justice Project (“JJP”). The JJP was established to coordinate referrals of personal injury claims for children who are wards of the court in Multnomah County. The JJP established screening criteria for attorneys who wanted to take referrals. During the first ten years it operated, the JJP reported assisting dozens of children in state custody in pursing claims arising from the acts or omissions of their state custodians. One benefit of the program is that it provided a measure of protection from a negligent referral claim for the referring lawyer or entity.

The performance standards describe two other options for the dependency lawyer who learns the child client has a potential tort claim: “The lawyer may pursue, [1] personally, [2] or through a referral to an appropriate specialist, issues on behalf of the child client, administratively or judicially, even if those issues do not specifically arise from the court appointment.”

As a practical matter, representing a child client in a tort claim often is outside the scope of the dependency lawyer’s expertise. There also may be a potential conflict of interest if the child suffered abuse, neglect or other injury while being represented by the dependency lawyer. Moreover, such work is beyond the scope of representation provided by attorneys under contract with PDSC, and PDSC is not authorized to pay for it.[4]

Referring the tort claim to an appropriate specialist is discussed in section 4 below.

  1. Best Practice: Act So Child Doesn’t Lose Rights

Whether or not the dependency lawyer is ethically—or, as discussed in section 6 below, legally—obligated to take steps to protect a child client’s tort claim, the best practice is for the lawyer to take steps to ensure the child’s claim is preserved.[5] Children need lawyers; many children who are abused, neglected or otherwise injured in state custody lose their legal rights because no one acts to protect them.

Pursuant to the performance standards:

  • The lawyer “should meet with the child client regularly throughout the case. The meeting should occur well before any hearings, not at the courthouse just minutes before the case is called before the judge.” Performance Standard 2, p. 9. [6]
  • “The child client’s lawyer should work collaboratively with the child client to ascertain independent sources to corroborate the child client’s information.”
  • “The child’s lawyer should conduct a thorough, continuing, and independent review and investigation of the case, including obtaining information, research, and discovery to prepare the case for trial in hearings. * * * * The child’s lawyer should not rely solely on the disclosure information provided by the agency caseworker, the state, or other parties as investigation of the facts and circumstances underlying the case.” Performance Standard 3, p. 27.
  • “The child’s lawyer should contact and meet with the parents, legal guardians, or caretakers of the child with permission of their lawyer(s).” at p. 28.
  • “The child’s lawyer should interview individuals involved with the child client and parent such as: 1. Domestic partners; 2. Educators; 3. Friends; 4. Neighbors; and/or 5. Church members.” Id. at pp. 28-29.
  • “The child-client’s lawyer should determine whether obtaining independent evaluations or assessments of the child client is needed for the investigation of the case.” Id. at p. 29.
  • “As part of the discovery phase, the child-client’s lawyer should review the following kinds of documents: 1. Social service records; 2. Medical records; 3. School records; 4. Evaluations of all types; 5. Housing records; and 6. Employment records. at p. 31.

Under the performance standards, dependency lawyers are charged with a very high degree of knowledge of, and inquiry into, the child client’s health, safety and welfare. As such, the dependency lawyer often is in the best position to know about circumstances giving rise to a potential tort claim. In fact, due to a child’s isolation following removal from his or her home, the dependency lawyer may be the only person who has knowledge of a potential tort claim. Using such reasoning, some state bars require dependency lawyers to take actions such as notifying the court about potential tort claims, and even filing notices required by statute. For more information, see Oregon Child Advocacy Project, When a Child May Have a Tort Claim: What’s a Child’s Court-Appointed Attorney to Do? (2010), https://law.uoregon.edu/images/uploads/entries/19.5_scopeofrepresentation.pdf.

The author is not in favor of creating additional burdens for court-appointed dependency lawyers who frequently are overworked and underpaid. Nevertheless, dependency lawyers are on the front lines of representing vulnerable children whom other adults have failed to protect. Given their unique position, it is imperative that dependency lawyers act to preserve their child client’s tort claims. A child’s right to pursue a tort claim can vanish in as little as nine months. Since time frequently is of the essence, the best practice for the dependency lawyer who becomes aware of a potential tort claim is to immediately notify the court or refer the claim to an appropriate specialist as discussed in the next section.

In a given case, it may not be apparent to the dependency lawyer whether the facts or the law support a tort claim, or whether such a claim is viable in light of the circumstances. When such questions arise, the best approach is to get a tort specialist involved—either directly or through the court—and let the specialist make the call. Doing so helps ensure that a child’s tort claim is not lost and provides the additional benefit of avoiding a potential malpractice claim.

  1. Acting on the Child’s Potential Tort Claim—Working with the Tort Lawyer

Lawsuits arising from children harmed in foster care are complex and rife with procedural and substantive legal issues that can be malpractice traps for attorneys. The cases are aggressively defended by the Oregon Department of Justice (DOJ), which tends to assert every possible defense. Discovery can involve many thousands of pages of documents. As a result, cases involving foster children can be extremely time consuming; it is not uncommon for the tort lawyer to expend well over 1,000 hours of time—and sometimes substantially more—to get to trial. The tort lawyer also typically is required to advance an extensive amount of case costs given the level of discovery required and the need for qualified expert witnesses to address both liability and damages issues; costs of $50,000.00 and more are not uncommon in cases involving such complexities.

Given the circumstances, the tort lawyer ordinarily will carefully screen a potential case before committing the resources to move forward with a lawsuit. Every case is different, but among other questions the tort lawyer will want to evaluate:

  • Are there any issues associated with tort claim notice requirements or statutes of limitations?
  • How straightforward or complex are the liability issues?
  • Is the child capable of and willing to testify about the abuse or neglect?
  • Will such testimony further traumatize the child to a degree that outweighs the potential benefit of pursuing litigation?
  • Who will decide if the potential harm to the child from litigation outweighs the potential benefit?
  • Will the child, if old enough, and the child’s current legal guardian be cooperative with tasks like deposition preparation and getting the child to experts for evaluation?
  • How long has the child been in DHS custody? The longer the time, the more documents will have to be reviewed and the more witnesses will have to be deposed prior to trial.
  • Who will serve as the GAL?
  • Are there third parties besides DHS who also may be at fault?
  • Have any individuals involved been criminally charged or convicted?
  • How serious are the child’s injuries?
  • What is the potential recovery for the child?

In our civil system, it is an unfortunate and hard truth: not every claim is economically viable to pursue.

When the dependency lawyer determines that it is necessary or appropriate to get a specialist involved in a child’s potential tort claim, it frequently sets into motion a major fire drill for the tort lawyer. Time is running, the tort lawyer has an immediate need for information to evaluate the case, and the lawyer often has no client who would enable the lawyer to take action. To make matters worse, little information may be available since court records are withheld from public inspection under ORS 419A.255(3).

The dependency lawyer has several options at this point. As discussed above, one option is to file a motion with the court and ask the court to appoint a GAL to investigate the claim or to order release of confidential information to an appropriate specialist. The downside with this approach—particularly asking the court to appoint a GAL—is that it takes time. The other option is to make a direct referral to a suitable tort lawyer. The downside here, as noted above, is that the tort lawyer may have insufficient information to evaluate whether there appears to be a viable case that warrants further investigation and pursuit of a claim. When the tort case appears to be viable and time is of the essence, the best approach is to do both: file a motion with the court that hopefully will result in release of the records and have a qualified tort lawyer waiting in the wings to take action.

Finally, there may be some limited circumstances in which the dependency lawyer can disclose confidential client information to a tort lawyer without prior court approval. A dependency lawyer’s ability to do so requires careful assessment of the RPCs and a variety of legal authorities. This topic is beyond the scope of this article.

  1. Summary of Time Limitations

Claims against the State of Oregon and its agents and employees generally are governed by the Oregon Tort Claims Act (OTCA), which has a two-year statute of limitations. ORS 30.275(9). Claims for civil rights violations against state employees under 42 U.S.C. § 1983 also must be commenced within two years. ORS 12.110; Sanok v. Grimes, 306 Or 259, 262 760 P2d 228 (1988).

ORS 12.160 tolls the running of the statute of limitations for a cause of action held by a minor for up to five years, but for no more than one year after the minor reaches age 18. The five-year period for minor tolling under ORS 12.160 applies to claims against the state. Smith v. OHSU Hospital and Clinic, 272 Or.App. 473, 356 P.3d 142 (2015); Robbins v. State, 276 Or App 17, 366 P3d 752 (2016).

Under the OTCA, a notice of claim must be filed with the state within 180 days of the injury; the period is extended to one year for wrongful death. ORS 30.275(2). The tort claim notice deadline is extended an additional 90 days for minors. Id. Note that ORS 12.160 does not toll the notice requirement. Buchwalter-Drumm v. State of Oregon, 463 Or App 64, 71, _ P3d _ (2017). However, under ORS 30.275(8), a tort claim notice is not required if the claim is against DHS or the Oregon Youth Authority, the claimant was under the age of 18 when the acts or omissions giving rise to a claim occurred, and the claimant was in the custody of DHS or the Oregon Youth Authority when the acts or omissions giving rise to a claim occurred.

The notice requirements of the OTCA do not apply to section 1983 claims brought in state court. Sanok, 306 Or at 262.

A discovery rule applies to OTCA claims. “The notice and commencement periods set forth in the OTCA begin to run when the plaintiff knows or, in the exercise of reasonable care should know, facts that would make an objectively reasonable person aware of a substantial possibility that all three of the following elements exist: an injury occurred, the injury harmed one or more of the plaintiff’s legally protected interests, and the defendant is the responsible party.” Edwards v. State, 217 Or. App. 188, 197, 175 P.3d 490 (2007) (internal citations and quotations omitted). The relevant inquiry is when the injured child has a reasonable opportunity to discover his or her injury and the identity of the person responsible for that injury. Buchwalter-Drumm, 463 Or App at 73-74. A GAL’s knowledge is imputed to the child, but knowledge prior to the time of appointment is irrelevant. Id.

Tort claims involving children in the custody of a federally recognized Indian tribe present a host of additional considerations. For tribes that have adopted a tribal tort claim law that provides a limited waiver of sovereign immunity for certain types of claims, a tort claim notice must be sent to the tribe. Additionally, the Indian Self-Determination and Education Assistance Act, 25 U.S.C. § 450 et seq., authorizes tribes to take over the administration of a variety of programs—including those pertaining to social services and child welfare—through contractual arrangements with the agencies that previously administered them: the Department of Interior’s Bureau of Indian Affairs, and the Department of Health and Human Services’ Indian Health Service. Under the statute, individuals injured by tribal employees may, under certain circumstances, seek compensation from the federal government. Such claims are subject to the Federal Tort Claims Act (FTCA), and the requirement to send a tort claim notice within two years of accrual under 28 U.S.C. § 2401.

Time limits create many malpractice traps. For example, Oregon DOJ has taken the position that the tort claim notice exception for children in state custody under ORS 30.275(8) does not apply to claims against foster parents. The exception under ORS 30.275(8) also would not apply if, for example, multiple calls about a child were made to the child abuse hotline, but the child was never removed from his or her home and, therefore, was never in DHS custody.

Submitting the tort claim notice also can be problematic. Under ORS 30.275(4), “Formal notice of claim is a written communication from a claimant or representative of a claimant * * *.” A parent or legal custodian ordinarily should be able to submit a tort claim notice, but it may not be practical, or even possible, to contact such persons and obtain their cooperation. Moreover, until a GAL is appointed, the tort lawyer may not have a client and, therefore, may not be serving in a formal representative capacity.[7] Under the FTCA, “A claim presented by an agent or legal representative must be presented in the name of the claimant. If the claim is signed by the agent or legal representative, it must show the title or legal capacity of the person signing and be accompanied by evidence of his/her authority to present a claim on behalf of the claimant as agent, executor, administrator, parent, guardian or other representative.” (italics added). Form 95; see 32 C.F.R. § 564.56. If time is limited, it may be faster for the dependency lawyer to file the tort claim notice. Doing so has the added benefit of avoiding any legal challenge to the tort lawyer’s capacity to send a tort claim notice.

  1. Malpractice Exposure

What happens when a dependency lawyer is aware of a child client’s potential tort claim, but takes no action to ensure the claim is preserved? Whether or not there is an ethical obligation to undertake some action to protect a child client’s tort claim, the dependency lawyer may have malpractice exposure. The author is aware of one instance where a dependency lawyer was sued for failing to protect a tort claim, and there may be other instances. To avoid a professional negligence claim, the best practice when learning about a child client’s potential tort claim, as discussed above, is to take action so the child’s rights are not lost.

Performance Standard 2 G. provides some tips on minimizing malpractice exposure:

“The child-client’s lawyer does not have an ethical duty to represent the child client in these collateral matters when the terms of the lawyer’s employment limit duties to the dependency case. However, the child-client’s lawyer may have a duty to take limited steps to protect the child client’s rights, ordinarily by notifying the child-client’s legal custodian about the possible claim unless the alleged tortfeasor is the legal custodian. In the latter case, ordinarily the child-client’s lawyer adequately protects the child client by notifying the court about the potential claim. Whether this solution will work depends on whether a lawyer capable of assessing the potential tort claim is available to be appointed by the court. A juvenile court judge might well expect the child-client’s lawyer to recommend someone to whom the case could be referred. In this situation, the child-client’s lawyer should research the other lawyer’s reputation and communicate clearly to the court and to the child client that the child’s lawyer is turning the work over to the receiving lawyer and is not vouching for the receiving lawyer’s work or monitoring the receiving lawyer’s progress in pursuing the claim. For more information, see Oregon Child Advocacy Project, When a Child May Have a Tort Claim: What’s a Child’s Court-Appointed Attorney to Do? (2010).” (italics added).

The article referenced in the standard, authored by University of Oregon Professor Leslie J. Harris in 2010, states: “Under Oregon law, it is also highly unlikely that a juvenile court attorney who simply referred a case to another attorney, without becoming actively involved or monitoring the case and without a fee-splitting arrangement, would be held jointly liable if the other attorney mishandled the case.” The viability of negligent referral claims, and whether Professor Harris’s assessment of the law in 2010 remains accurate today, are beyond the scope of this article.

Finally, it must be noted that, as discussed above, the dependency lawyer is responsible for investigating, monitoring and reporting on a vast array of circumstances that affect the child client’s well-being, including the appropriateness of both temporary and permanent placements. Although it is beyond the scope of this article, the dependency lawyer has civil liability exposure when the lawyer knows, or reasonably should know, about abuse, neglect or other injuries that occur in a placement on the lawyer’s watch and the lawyer fails to take action to protect the child.[8] The author is aware of more than one instance where such a claim was successfully pursued against a dependency lawyer, and there may be others.

CONCLUSION

Court-appointed dependency lawyers may have an ethical and a legal duty to take limited steps to protect a child client’s tort claim. Dependency lawyers often are in the best position to learn about torts committed against their child clients. Since other participants in the dependency proceedings may be the ones committing the tortious acts or omissions, dependency lawyers frequently also are in the best position to take action on behalf of children to protect their tort claims. A child’s right to pursue a tort claim can vanish in as little as nine months. Therefore, whether or not a dependency lawyer is ethically or legally obligated to do so, the best practice is for the dependency lawyer to act immediately so that the child’s legal rights are not lost.

 

[1] The focus of this article is tort claims against DHS and persons working under its auspices, but similar ethical, legal and practical considerations apply to tort claims arising in other contexts, such as motor vehicle collisions.

[2] Under Oregon RPC 8.6(b), a lawyer’s adherence to a formal or informal written advisory opinion may be used to show a lawyer’s “good faith effort to comply with [the RPCs]” and as “a basis for mitigation of any sanction that may be imposed.” However, “our case law makes clear that, with regard to advice from the Bar that leads a lawyer to engage in a particular set of actions, that advice does not estop the Bar from subsequently bringing disciplinary charges if warranted by the resulting conduct. Neither can such advice be invoked as a defense to the charged violations.” In re Gatti, 356 Or 32, 49–50, 333 P3d 994 (2014) (internal citations omitted).

[3] The dependency lawyer’s mandatory child abuse reporting obligations are independent of any ethical obligations arising from knowledge of a child client’s potential tort claim. See footnote 5.

[4] See February 29, 2008 correspondence from Ingrid Swenson, OPDS, to Mark Taleff.

[5] As addressed in Performance Standard 2 D. at page 13: “Under ORS 419B.010, lawyers are mandatory child-abuse reporters. However, a lawyer is not required to report if the information that forms the basis for the report is privileged. * * * * Under ORS 419B.010(1), ‘An attorney is not required to make a report under this section by reason of information communicated to the attorney in the course of representing a client if disclosure of the information would be detrimental to the client.’ ” Statutory child-abuse reporting requirements are beyond the scope of this article.

[6] OPDS has a similar requirement, but has recognized inconsistent practices of court-appointed dependency lawyers. In an undated document on its website titled “Role Of Counsel For Children and Youth,” OPDS states in pertinent part: “During the course of numerous site reviews over the last four years, OPDS has noticed significantly inconsistent practices regarding the role of appointed counsel for children in both dependency and delinquency cases. * * * * For example, some attorneys believe that it is not necessary to meet and confer with child clients. * * * * It is hoped that this statement will clarify what OPDS believes to be the role of counsel for children in dependency cases and youth in delinquency cases. The statement is being sent to all public defense providers.” http://www.oregon.gov/OPDS/docs/CBS/RoleofCounsel.pdf.

[7] Whether or not a tort lawyer must be serving in a formal representative capacity in order to send a legally sufficient notice on behalf of a client under the OTCA, a tort claim notice nevertheless may be sufficient under the actual notice provisions of ORS 30.275(6).

[8] Civil liability exposure, and the possibility of a corresponding conflict of interest, are mentioned in Sylvia Steven’s March 13, 2008 informal written advisory opinion: “If overseeing the child’s placement into foster or other care is within the scope of the lawyer’s representation, the lawyer could well be civilly liable to the child for failing to meet the standard of care with regard to that aspect of the representation. In that situation, if there is a significant risk that the lawyer’s continued representation of the client will be materially limited by the lawyer’s interest in avoiding civil liability, the lawyer may continue the representation only with the client’s informed consent, confirmed in writing. RPC 1.7(a)(2) and (b). See also In re Obert, 336 Or 640 (2004). Because the client here is a child, the consent presumably will have to come from another source including, possibly, the court.” Id. at p. 3.

 

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