Prof. Andrew Schepard Comments in NYLJ Story ‘Law Guardian Ordered to Continue Despite Mother’s Removal Bid’

Andrew Schepard, Director of the Center for Children, Families and the Law and Professor of Law, was quoted in the following New York Law Journal article.

Law Guardian Ordered to Continue Despite Mother’s Removal Bid
New York Law Journal
By Noeleen G. Walder
March 11, 2009

A court-appointed attorney must continue to represent a teenager even though his mother accused the lawyer of threatening her son, a Queens judge has ruled.

Larina Washington told Family Court Judge John M. Hunt (See Profile) that she wanted “new people” to represent Malik L. in a juvenile delinquency proceeding because the teen’s attorney had allegedly threatened her son. Although Malik L. said this never happened and that he was happy with his lawyer, the Legal Aid Society moved for an order allowing it to withdraw from the representation.

While Legal Aid’s concerns were “understandable,” Judge Hunt held in In the Matter of Malik L., D-2696/09, that “in the absence of a demonstrable conflict between the Law Guardian and the juvenile who is her client, the child’s mother has no standing to seek removal of the Law Guardian.”

The Family Court decision will be published Friday.

Malik, 14, was allegedly brandishing a knife when the police chased him. One of the officers pursuing the boy was cut during the ensuing scuffle.

On Feb. 18, 2009, the Juvenile Rights Practice of the Legal Aid Society was appointed to represent Malik.

The following week, the teen appeared in court and waived his right to a probable cause hearing. While the attorney for the child, Lisa E. Tuntigian, accompanied Malik to the hearing, his mother, Ms. Washington, was undergoing medical treatment and unable to attend court that day.

On March 4, Malik, his mother, Ms. Tuntigian, and the presentment agency attended a hearing, at which Ms. Washington, a traffic enforcement agent for the New York City Police Department, said she had issues with her son’s representation. While she failed to provide details, Ms. Washington indicated that the police had used excessive force when arresting her son and she expressed concerns about the pace at which the case was moving forward.

After Judge Hunt explained that the speedy trial provisions of the Family Court Act necessitated that the action go to trial quickly, Ms. Washington accused Ms. Tuntigian and a Legal Aid social worker of threatening her son while he was detained at the courthouse.

Both Ms. Tuntigian and Malik denied any such threat took place. However, Ms. Washington maintained she wanted “new people” to represent her son and claimed she called 1-800-LAWYERS to locate a new attorney.

Judge Hunt then asked Malik whether he still wanted Ms. Tuntigian to serve as his attorney. He replied that he did.

On an order to show cause, Legal Aid asked that it be relieved of its duty to represent Malik.

The presentment agency was not a party to, and took no position, on Legal Aid’s motion.

Judge Hunt held that Ms. Tuntigian must continue the representation.

“Given the allegations made by the respondent’s mother, her confrontational position towards the Law Guardian’s office and her general uncooperativeness, the concerns raised by the Legal Aid Society are understandable. However, upon the inquiry made in open court, there is no factual or legal ground which would require a mid-trial disqualification of respondent’s Law Guardian,” the judge wrote.

In refusing to replace the attorney for the child, Judge Hunt noted that “an accused juvenile delinquent has both constitutional and statutory rights to be represented by counsel.”

Although a parent may advise a child accused of being a juvenile delinquent, “it is the Law Guardian who acts as the child’s attorney with all of the inherent responsibilities created by that relationship,” the judge said.

And while an allegation that a conflict between the youth and the attorney for the child might warrant replacing the lawyer, in this case, Malik “specifically denied any conflict with his Law Guardian and indicated his desire that she continue representing him,” the judge wrote.

Judge Hunt distinguished the case from one “where the parent of the accused juvenile delinquent is seeking to vindicate the child’s right to be represented by counsel of the child’s own choosing . . . or where the parent is acting on her child’s behalf in an attempt to replace a Law Guardian who is embroiled in an irreconcilable conflict with the child.

“Instead, this application appears to be motivated by the non-party’s mother’s desire to replace the Law Guardian with someone whom she believes she will have a better relationship with or someone who will advance interests which are unrelated to the proceeding before this Court,” the judge wrote in denying Legal Aid’s motion.

However, if Ms. Tuntigian believes the mother is “actively interfering” with her representation of the child, the attorney should move for a guardian ad litem to act as Malik’s “adult advisor” in lieu of Ms. Washington.

Senior counsel Ralph M.C. Sabatino of the New York City Law Department represented the presentment agency.

In an interview, Tamara A. Steckler, head of Legal Aid’s Juvenile Rights Practice, said no one at Legal Aid ever threatened Malik.

“We were happy to remain in the case,” she added.

A spokeswoman for the Law Department said the application made by Legal Aid in this case was unusual.

Andrew Schepard, a family law professor at Hofstra University School of Law and a Law Journal columnist, agreed that the case involved a unique situation.

Parents and children usually do not disagree on the quality of the representation, Mr. Schepard noted. He said it was also unusual for a lawyer to attempt to withdraw based on the behavior of the parent, not the client.

While it “would be better if the youth and mom” were to act as a team, Mr. Schepard said the youth has the right to terminate the representation.