Questioning the Proper Role of Child's Attorney and the Role of the Court
Law Guardian's Role as 'Unsworn Witness' Violated Ethical Standard, Panel Cautions
By Noeleen G. Walder
New York Law Journal
Feb 7, 2008
A Family Court judge should not have placed a law guardian in the ethically untenable position of being an "unsworn witness" in a custody modification proceeding, an appeals panel has ruled.
The Appellate Division, First Department, on Tuesday affirmed the dismissal of the petition but chastised the judge for asking the law guardian to divulge a 10-year-old child's "hearsay opinion" of the custody arrangement.
This line of questioning ran afoul of "the ethical requirements applicable to all lawyers, including but not limited to . . . becoming a witness in litigation," the panel wrote.
"[W]e point out that the questioning of the Law Guardian (now called Attorney for the Child) by the court is something that should not be repeated," the panel cautioned in Naomi C. v. Russell A., 2542.
The decision appears on page 35 of the print edition of today's Law Journal.
Michael D. Stutman, a partner in Mayerson Stutman Abramowitz & Royer, who was not involved in the case, called the decision a "welcome scolding from the First Department."
In an interview, Mr. Stutman, a family law practitioner, said that law guardans have "historically been able to run roughshod over [the] rules of evidence and burdens of proof" by acting as unsworn witnesses and evading cross-examination.
"It has been a source of unending concern" to practitioners that law guardians develop "overweighted influence" on the court, Mr. Stutman observed. As a result, he added that parties sometimes feel that what is supposed to be a "neutral" process has been "shanghaied."
The underlying petition arose when the mother, Naomi C., having recently relocated from Cape Cod, Mass., to New York, sought to modify a joint custody order to enable her to spend more time with her 10-year-old son.
The mother claimed that the father, Russell A., a waiter who worked evenings at the Rainbow Room, was "delegat[ing] to babysitters essential quality parental time," according to an appellate brief the mother's attorney filed with the court.
On Aug. 9, 2007, Manhattan Family Court Judge Helen C. Sturm (See Profile), asked law guardian Philip Schiff what "recommendations" he had with "respect to all of these issues," according to a court transcript.
Mr. Schiff informed the court that during an Aug. 6 interview the boy told him he would like "'extra time with both parents. I think I should see both of them more often.'"
Mr. Schiff said the child told him that he was upset by neighbors of the father who had allegedly bad-mouthed the mother.
The guardian concluded that "as much access as possible with both parents should be encouraged," according to the transcript.
When the mother's attorney, Bruce A. Young, asked to cross-examine Mr. Schiff, Judge Sturm said, "Don't offend me . . . . Sit down." She then denied the petition.
Mr. Young argued in his appellate brief that, while the law guardian raised some concerns about the father, by disallowing cross-examination the court "failed to consider the father's retrenched, bitter, persistent, antagonistic posture towards the mother."
The brief further alleges that the court's failure "to enlarge the record to show how this information was distorted or the context in which it may have in part been stated" precluded the court from gaining a full view of the "intent of the child's statement or the mother's statement."
But the appellate panel, in a brief, unsigned opinion, affirmed Judge Sturm's decision.
The panel agreed with Judge Sturm's decision to forbid cross-examination of the law guardian. But the court held that the judge's "colloquy" with the law guardian was misguided from the onset because it violated Rule ?7.2 of the chief judge's rule on the function of the attorney for the child, promulgated on Oct. 17, 2007.
Section 7.2(b) of the rule provides that, "The attorney for child is subject to the ethical requirements applicable to all lawyers, including but not limited to constraints on: ex parte communication; disclosure of client confidences and attorney work product; conflicts of interest; and becoming a witness in the litigation."
The panel consisted of Presiding Justice Jonathan Lippman (See Profile) and Justices Luis A. Gonzalez (See Profile), John T. Buckley (See Profile), and John W. Sweeny Jr. (See Profile) The case was argued on Jan. 8.
While Mr. Young, a solo practitioner, was disappointed that the panel upheld the dismissal of the mother's petition, he hailed the court for establishing a "critical new definition" by which Family Courts and law guardians could avoid "ethical problems by making themselves witnesses."
Mr. Young has not yet decided whether he will appeal the dismissal of his client's petition.
Jeffrey M. Gutfleish, counsel for the father in Family Court, could not be reached for comment. The father represented himself on appeal.
Judge Sturm said that she had not reviewed the decision and could not comment. Mr. Schiff declined to comment.
- Noeleen G. Walder can be reached at nwalder@alm.com.
