The Use of Professionalism in Contacting DCFS Caseworkers by Robert Copier

In light of our recent post on Can Parental Defense Attorneys Communicate with DCFS Caseworkers? and the Ethics session at the Annual Conference, we have asked Robert Copier to give us his perspective on the subject.

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The Parental Defense Alliance has asked me to share my thoughts about the part of an ethics presentation at the recent excellent Annual Conference that focused on the "hot issue" of contact between parental defense lawyers and DCFS caseworkers without an Assistant Attorney General present.  As Utah offers ethics advisory opinions, my first move was to request one.  See letter dated May 1, 2015, Scenario Three.

Beyond that, based on my four-decade career in auditing and law that started in 1975 during which I worked with and against, supervised, and audited some of the finest lawyers in the Utah State Bar, my take is that this "hot issue" actually falls within my maxim that in the living of life, 90% of problems are solved by money and the other 10% are solved by death, while in the practice of law, 90% of problems are solved by professionalism and the other 10% are solved by death.  Allow me to expand that thought.  At the outset of any new litigation matter, the best thing a lawyer can do is sit down face-to-face with opposing counsel and offer to try to get as much accomplished between professionals as possible so that judicial decision and intervention will be needed as little as possible.

Under such an approach, one can ascertain whether the Assistant AG prefers that the lawyer not contact the DCFS caseworker directly without the Assistant AG present.  If that is the Assistant AG's wish, honor it, but ask the Assistant AG to reciprocate by being reasonably available.  You can't control whether the Assistant AG honors your request, but you can stay professional by honoring the Assistant AG's request.  And any short-term inconveniences you face can usually be solved in the long-term, not only in child welfare cases, but in almost all juvenile, civil, probate, and criminal cases, since, except in a Capital Murder Case where the sentence of death has already been carried-out, you are usually not without litigation moves.

Indeed, even the "mandatory" tight deadlines in child welfare juvenile court cases yield to professionalism in which the lawyers can take control of the case in a professional manner and leave as little to judicial decision and intervention as possible. [D.H. v. State, 2014 UT 26, n. 4].   Parental defense lawyers should build on that helpful appeal decision and take control professionally.

It is amazing what professionalism can accomplish.  In my own situation, auditing and law were a second career after retiring from an earlier career and I was professionally positioned to be able to take long absences living abroad and other sojourns and sabbaticals away from the law and then returning to my litigation caseload and working on it in "concentrated streaks."  One would think this to be impossible, as opposing counsel would take advantage of those sojourns away from practice by actual or de facto defaults against me.  But anything like that can be cured after- the-fact through professionalism between counsel.  In my situation, that has consistently occurred through professionalism or will so occur [although a handful of opposing lawyers don't realize that yet].  Stay professional.  If an opposing Assistant AG doesn't want you to contact DCFS workers, then don't.  But, since you can ask anyone anything if you do it in a nice way, ask him or her to reciprocate by being reasonably available.  They may so reciprocate or they may not.  But you can control only your own professionalism, regardless of whether they reciprocate or not.

Happy to entertain any questions and give non-legal advice upon request at no charge to any PDA member or parental defense lawyer facing these situations.  Telephone (801) 272-2222.

Robert Henry Copier, 727

COPYRIGHT 2015 - ROBERT HENRY COPIER