A Higher Duty

February 4, 2015 § 5 Comments

Many lawyers get into the mindset that winning is the most important thing, and it shows up in their take-no-prisoners, no-holds-barred, Rambo-ish approach to litigation. Discovery is adversarial and contested, sanctions are threatened at the slightest slight, and aggressive motion practice is used like a jousting match of yore.

Those lawyers point to the duty in our professional rules to represent the client zealously, within the bounds of the law. The emphasis, though, is on zeal.

Consider, however, this scenario:

You are representing a young mother in a custody contest. Her former husband is trying to get custody of their 3-year-old son, who has had bruises on his legs, and who has nightmares and is a bedwetter. The father knows something is wrong, and as discovery proceeds it is apparent that he does not have enough solid information to make a case of change in circumstances and adverse effect. The court has not appointed a GAL because the allegations to this point do not warrant it. You, however, learn as the case goes on that your client had a live-in boyfriend who did, indeed, whip the child. The boyfriend is a convicted felon with a violent history, and your client is afraid of him. The other side knows nothing about this, and has not even asked anything in discovery that your client had to lie about to conceal the information. When you confront her with the new-found information, she admits it, but assures you that she made the boyfriend leave during the litigation, although he has made it clear that he will return when the case is over.

What do you do? On the one hand, if you voluntarily disclose the information without a specific discovery request for it, you will have violated your client’s confidentiality. And the Rambo in you has to acknowledge that it will surely send the case plummeting from its heights as a sure winner to the depths of loserdom. On the other hand, it certainly does not seem like it’s in the best interest of the child to be in the mother’s home with that violent boyfriend, and you know your chancellor well enough to know that if those facts came to light, she would not hesitate to protect the child.

The highest and most serious duty of a chancellor is to do what is in the best interest of a child. The best interest of the child is always the “polestar consideration” in every custody and child-affecting  decision in chancery court. The rules of evidence do not trump that responsibility, nor do considerations of winning and losing, attorney-client privilege, or anything else.

As an officer of the court, you may not do anything that thwarts the court in its duty. You may not stifle the truth in such matters, or suppress evidence, or do anything that will result in compromising the safety of a child.

So how can you act and still maintain the confidentiality of your client? If I were the attorney, I would file a motion for appointment of a GAL. No details need to be pled. You could recite that the father’s suspicions should be investigated for the best interest of the child, and leave it at that. A competent GAL will ferret out the truth.

A chancellor told me recently of a case he had in which he overruled the father’s petition to modify custody. It was unquestionably a case in which the father was unfit, and the mother’s situation was better for the child. It was not a close case. Seven months later, however, the mother’s live-in, convicted-felon-boyfriend shot and killed the four-year-old son because he wet the bed. No one hid the information that the mother had someone like that living with her from the judge; it was a situation that developed after the case was concluded. Had it been part of the facts existing at the time of the modification, the judge could have taken other measures to protect the child, but only if someone made it known.

In my opinion, in cases involving the best interest of a child, you have a higher duty.

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§ 5 Responses to A Higher Duty

  • Bob Wolford says:

    Judge, in your scenario you describe a child with “bruises on his leg” and is having nightmares and wets the bed. Yet, you state that the allegations at this point do not warrant a GAL. Why wouldn’t the bruises on the leg, without any evidence of abuse on any level, support appointing a GAL?

    • Larry says:

      Because there are all kinds of reasons why children display those symptoms that do no involve abuse. I was trying to offer an ambiguous scenario in which a court could go either way, and in which the lawyer should tip the scales, so to speak. It might not have been the best scenario.

  • reidkrell says:

    Okay, so what do you do when you are faced with a Rambo and a judge who does not share your belief in a higher duty and denies your motion to appoint a GAL?

    • Larry says:

      Not trying to sound pollyannish here, but I can not think of a chancellor I have ever known who does not share my belief about a higher duty. The buck stops with the judge, and every chancellor I have ever known takes that responsibility seriously. A GAL is a big help to the court.

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