1.1. For a number of years, I assigned the following problem to be read as we commenced the study of the Model Rules. I assigned it for two primary reasons. The first was to give students a “baseline” on how their initial instincts about what to do, before study of the Rules, coincided with the guidance the Rules provides. The second was to show a situation involving the intersection of a number of Rules before we studied Rules one-by-one.

class=Section2>

In the switch to Martyn & Fox, I found it useful to assign the problem even earlier because I think it provides useful context for considering the conceptions of the lawyer’s role described in their first chapter. The problem also provides a useful example and reference point for some concepts we take up in the course. Reactions to the problem also can be the basis for a first journal if you are looking for something to “get you started.”

Green Problem

You have been appointed by the court to represent Donna and Lee Green, the parents of three-year-old Brett. The Department of Family Services (DFS) is seeking permanent custody of the boy, who was placed in a foster home last week.

Mr. and Ms. Green also have two daughters, five years old and six months old. Ms. Green says there has never been any problem like this before. You can imagine some judges and social workers not responding well to Ms. Green’s presentation of self which includes a barbed wire tattoo on a bicep, a nose and eyebrow ring, and fairly tight and brief clothing. At the same time, she seems intelligent and utterly distraught about the prospect of losing her son. She brought her two daughters to the interview, and she seems to have a good rapport with them. The interview also reveals that Mr. and Ms. Green's is a common-law marriage, and you suspect that this also influenced the DFS decision to seek permanent custody.

Ms. Green says the problem began when she took Brett to the hospital after a fall on the playground. She says Brett is an active child. He is always getting bruised and has broken his collar bone before. She says the hospital doctor called in a social worker who started asking all kinds of accusatory questions, and they now say she and Mr. Green injured the child. You have worked on two cases before to which this DFS caseworker was assigned, and it seemed to you she was influenced by her own personal views of how families should look and behave. On your assessment of Ms. Green's credibility and the caseworker, you are ready to put your all behind the Greens.

You go to see the caseworker. She says hospital records show there are three previous occasions on which the child had visited the hospital emergency room: one for the broken arm, one for a broken collarbone, and one for burned fingers on the right hand. She said, in two of these instances, there also were bruises on the back and buttocks. She says she has met both parents. Her assessment is that Mr. Green drinks too much and when drunk has violent outbursts. She says Brett is an aggressive, almost hyperactive little boy whom she believes draws the father's wrath rather than the quieter daughter and the baby. She says she believes that Ms. Green loves the children and does a reasonable job of caring for them, but that she is frightened of Mr. Green, will not leave him, and will not intervene. She thinks both broken bones were the result of blows and the burned fingers were a punishment for playing with matches.

On your gentle exploration of these contentions with Ms. Green, she denies them. She says that the family is under a lot of financial pressure, and her husband occasionally drinks too much to relieve it. Both she and her husband sometimes spank the children, "to make them behave right," but these punishments are not hard and they have never injured the children.
She again becomes distraught at the possibility of losing Brett.

You attempt on the phone to arrange to see Mr. Green. He seems extremely angry about the whole business and to see it as his wife's fault for not better explaining herself at the hospital. He says his work schedule does not allow meeting at the several times convenient for you which you mention. You finally agree to stay in your office until 7:00 on the following day to see him. He fails to show up for the appointment.

You know the attorneys who represent the Department of Family Services are overworked and often do not investigate cases thoroughly. Some do not seem to be well trained in trial advocacy. They often do not call all witnesses who would be helpful. They frequently try and rely on the social worker giving opinions and try to put in hearsay evidence that is not admissible under your jurisdiction’s evidentiary rules. You can imagine likely trial scenarios in which you will be able to keep much potentially damaging evidence out of the record, but you now are very worried that the social worker's assessment of the situation may be accurate.

How would you proceed? For discussion at this point, I am interested in talking in particular about aspects of the question of how you would proceed with respect to the way you envision your relationship to your clients.