Attorney represented “client” in a proceeding to establish paternity and to determine custody and visitation. Attorney interviewed unrepresented child about abuse allegations. Attorney filed an application for emergency temporary order, based upon the child’s statements to the attorney, and attorney also filed an affidavit attesting to child’s credibility. Trial Court granted the “emergency” temporary custody request. Legal parent moved to disqualify the attorney for making himself a necessary witness to child’s credibility and for harming the integrity of the judicial process. District Court sustained the motion to disqualify client’s attorney. The Oklahoma Supreme Court affirmed.
The majority opinion of the Supreme Court discloses numerous missteps by counsel. However, the primary basics for the disqualification, was the “forensic interview” of the eight-year-old child and the Affidavit by the attorney in support of the child’s credibility.
Conducting a forensic interview of the child regarding abuse allegations to advance the client’s interest in obtaining an emergency temporary order is dangerous. The attorney has likely inserted himself into role of forensic interviewer, likely tainted the fact-finding process with improper interviewing techniques, and likely established a relationship with the minor child of undue influence and overreaching. As this case demonstrates, the attorney conducting such an interview with a minor child will likely face these allegations, followed by a motion to disqualify the attorney and potential allegations of ethical misconduct. This is the role of a qualified forensic psychologist, upon being appointed by the Court to conduct the evaluation, DHS, or at the direction of a Guardian Ad Litem.
Misstep of the attorney as stated by majority:
- Did not report suspected child abuse to the proper authorities as required by statute.
- Did not obtain the “legal parent’s”, Mother’s, permission prior to the interview with the minor child. Dissent questions the majority’s use of the term “client”, for the Father, and “legal parent”, for the Mother. Mother agreed the person identified by the Oklahoma Supreme court, as the “client” was the minor child’s Father.
- Filed his affidavit attesting to the credibility of the child’s affidavit, making himself a witness to the child’s credibility, contra to Rule 3.7 of the Oklahoma Rules of Professional Conduct.
- Compromised the legal parents’ right to a fair proceeding by contaminating the fact-finding procedure and by establishing a relationship of undue influence with the child.
- There was no evidence that attorney explained to child that he could request his Mother to be present during the interview; that child could refuse to answer the questions; that the child could be subject to cross examination based upon his answers.
- Attorney was aware that child struggled with cognitive perception and reading comprehension, as detailed in child’s Individual Education Plan (IEP). The minor child signed but did not read the Affidavit; it was read to him by the attorney.
- Attorney filed unsealed application and affidavits with the child’s full name, rather than initials.
Trial Court found and Oklahoma Supreme Court agreed that attorney had made himself a necessary witness in the underlying proceeding and that the integrity of the judicial process was harmed when “a parent’s counsel in a custody/visitation case uses an eight year old child to obtain the evidence to support the parent’s possession, and fails to inform the child of the legal consequences of what the child is signing and the counsel then himself signs his own Affidavit to support, and gives evidence as to the credibility of the child’s Affidavit.”
The Oklahoma Supreme Court found that the attorney inserted himself in the paternity proceedings as a forensic interviewer, interviewed a minor child without parental consent (even though all admitted that he was the Father), and submitted a signed affidavit attesting to child’s credibility.
In conclusion, the Supreme Court stated: “A lawyer is not prohibited from interviewing a child witness, and nothing in this opinion should be construed to prevent an attorney from interviewing a child witness.”
However, the attorney must report the suspected child abuse, and if the attorney inserts himself into the role of forensic interviewer, he likely taints the case with improper interview techniques, likely establishes a relationship of undue influence with the child witness, and places himself in the position of a witness rather than attorney. The attorney will be disqualified and may face allegations of misconduct.
David Echols is a senior attorney at Echols & Associates in Oklahoma City. Practicing matrimonial law in 1978, he is an expert in family law, divorce, and child custody issues. www.echolslawfirm.com