Your Attorney’s Role and How to Report A Serious Problem with Your Attorney

 

The Attorney-Client Relationship

Your relationship with your attorney is special and has certain legal protections. First and foremost, your communications with your attorney are confidential, which means that the attorney cannot tell anyone else what you talk about unless you give permission with a few exceptions (such as if you are going to commit a crime).  Also, your attorney’s job is to explain the law and how it applies to the facts of your case.  Finally, your attorney is supposed to be your voice in court and is there to present your position to the judge.

Welfare and Institutions Code §317(e) and California Rule of Court, Rule 5.660 provide standards of representation of legal counsel representing parties in a dependency proceeding.  Each county in California also has their own Local Rules of Court which may have additional requirements for attorneys who represent parents in juvenile dependency cases. It is important for you to look at your local county rules to see if your attorney is meeting those requirements.  To look up your county’s local rules, please visit our Local Rules of Court webpage and follow the instructions there.

*NOTE:  On November 1, 2018, new ethics rules pertaining to attorneys' professional code of conduct went into effect.  The California Rules of Professional Conduct are binding on all attorneys licensed by the State Bar of California.  New Rules 1.2 and 1.4 are pertinent to representation of clients as follows:

Rule 1.2 Scope of Representation and Allocation of Authority:  confers upon the client the ultimate authority to determine the purposes to be served by legal representation, within the limits imposed by law and the lawyer’s professional obligations.

Rule 1.4 Communication with Clients: requires an attorney to reasonably consult with the client to accomplish the client's objectives, keep the client reasonably informed about significant developments, and explain matters to the extent reasonably necessary to permit the client to make informed decision.

 

Reporting Serious Concerns and Requesting New Appointed Counsel

If you feel like your attorney is not representing your interests, you can try to obtain a new attorney at your next court hearing by making a Marsden motion.  There is no requirement to file a written motion.  To make a Marsden motion, you can simply speak up in court to the judge and clearly state that you are making a Marsden motion and request a substitution of counsel.  Be prepared to answer the judge's questions regarding the reasons why you want a new attorney appointed.

Additionally, you may choose to lodge a complaint with the presiding judge of the dependency court.  California Rules of Court, Rule 5.660(e) requires the court "...establish a process for the review and resolution of complaints or questions by a party regarding the performance of an appointed attorney. Each party must be informed of the procedure for lodging the complaint. If it is determined that an appointed attorney has acted improperly or contrary to the rules or policies of the court, the court must take appropriate action."  In that regard, you may utilize this letter template to communicate with the presiding judge of your local juvenile dependency court and lodge a complaint.

Before you request a new attorney, you should understand the risks.  It is possible that if you make any formal complaints and/or do a Marsden motion, your requests may be denied and you will have to work with the same attorney.  It is a good idea to try to work through your issues with your attorney and recognize that s/he may not be understanding your frustrations.  However, if there is an irrevocable breakdown (that cannot be fixed) in the attorney/client relationship, you are entitled to a new lawyer and may want to seriously consider asking for one.  You will need to list specific examples supporting your request.

The State Bar of California' Chief Trial Counsel also receives and investigates complaints regarding unethical professional conduct by attorneys practicing in California.  It is important to note that you should only make a complaint to the state bar regarding serious concerns about your lawyer’s representation.  For more information, please visit the State Bar of California website.