Kara R. Finck[1]

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At its core, family defense protects the legal relationship between a parent and their child, one of the most intimate, complicated, and nuanced relationships in practice and under the law. Family defenders represent parents and caregivers accused of neglect or abuse of their children in family and dependency courts. While the process of individual representation may appear straightforward, the ideals of family defense incorporate an explicit recognition of the social determinants that bring families into the child welfare system in the first place, including poverty, substance abuse, and untreated mental health issues. Although much of the attention paid to the child welfare and family court systems is focused on children and their placement in foster care, family defenders understand that any intervention by the child welfare agency and family court system has a profound impact on children and families. Often referred to as attorneys for parents, in literal contrast to attorneys for children, family defenders advocate beyond the direct representation of an individual client. Even the act of renaming lawyers for parents in abuse and neglect proceedings as “family defenders” as opposed to “parents’ attorneys” highlights the potential impact and scope of this work. Inherently, family defense practice incorporates legal advocacy that supports, strengthens, and stabilizes the client’s family, consequently promoting better outcomes for children.

This article posits that there are three critical components which should be included in any family defense practice model designed for advocating for parents and children in the child welfare and family court systems. A robust family defense is defined not only by its commitment to the zealous defense of clients, including all of the legal tools available in litigation, but also by its recognition of the unique context of family defense, which incorporates social services, community engagement, and anti-poverty lawyering into a comprehensive response for parents in family court.

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Diane L. Redleaf[1]

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A. Introduction to the Family Defense Center’s Model for Family Defense

This article discusses the key ingredients to the success of an unusual family defense organization, the Chicago-based Family Defense Center (the “Center”), which I founded in 2005 after a long career at both a legal services office and a public interest law firm. The Center uses a hybrid public interest law firm/legal services/pro bono network model, along with a sliding scale fee-for-service program, to fulfill its mission of advocating for justice for families in the child welfare system. The Center is devoted to addressing the needs of families, especially families who are targets of child protection investigations. By design, the Center works in a unique and highly specialized niche. But because child protection investigations arise from a wide range of allegations against family members, from domestic violence, to medically complex cases involving fractures and head injuries, to claims of sexual abuse, the practical and substantive expertise of the Center is very broad.

In addition to representing family members in 400 to 600 individual direct service cases each year, the Center has been counsel in over a dozen federal civil rights cases and has won many precedential appellate cases.^[2] Center-created precedents have tightened vague definitions of child neglect, set limits on the removal of children based on constitutional grounds, limited presumptions of abuse in medically complex cases, created strong due process rights limiting child abuse and neglect findings against parents and family members, and protected people who work with children from the blacklisting that follows from a wrongful child abuse or neglect finding.^[3] Thousands of families have benefited from the Center’s systemic reform work, including the direct exoneration of over 26,000 people from the Illinois Child Abuse Registry through a 2013 Illinois Supreme Court decision and a class action suit that followed it.^[4] The Center’s overall individual hearing win rate is approximately 80%.^[5]

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Robert L. Greenberg[1]

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Introduction

On August 16, 2016, the United States Court of Appeals for the Ninth Circuit issued a landmark decision on a series of cases relating to businesses and individuals in the state-legal cannabis business. In United States v. McIntosh,^[2] the Court heard ten cases challenging the United States Department of Justice (DOJ) prosecution of medical marijuana patients. These cases involved criminal defendants who were charged with violations of federal narcotics laws while ostensibly in compliance with the laws of their respective states.^[3] The court determined that federal law prohibits the prosecution of these cases when the defendants are otherwise in compliance with state law. The impact of this decision is discussed infra.

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Steven Zeidman[1]

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Introduction

New York State courts, like many other state and federal courts, have seen an increase in cases that pit lawyer versus client; where the lawyer wanted to proceed in one way and the client wanted to go in another direction. The resulting decisions, often inconsistent and irreconcilable, reflect the difficulties in navigating the lawyer-client relationship.

Recently, the New York Court of Appeals again waded directly into the muddy waters of attorney versus client decision-making.^[2] On the face of it, the Court was deciding whether counsel needed his client’s consent before telling the prosecutor that his client would not exercise his statutory right to testify in the Grand Jury.^[3] However, lurking beneath the surface are the larger and related questions of who, between lawyer and client, has ultimate decision-making power, and what information lawyers must provide clients about their rights.

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