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JOURNAL OF CHILD CUSTODY
2016, VOL. 13, NOS. 2–3, 147–153
http://dx.doi.org/10.1080/15379418.2016.1219246
Ethics on trial: A comment
Toby G. Kleinman
Alder & Kleinman, Highland Park, New Jersey, USA
ABSTRACT
This comment reviews attorney and mental health duties to the
court and their profession and discusses ways to have an impact
on how information, known to be considered without scientific
basis, “junk science”is put forth to courts and what can possibly
be done to stop that.
KEYWORDS
Attorney; custody; Daubert;
ethics; Evidence Rule 702;
expert; Frye; Gardner; parent
alienation syndrome (PAS)
Attorneys have a duty of candor to the tribunal. The tribunal is the court.
Why then is it possible for lawyers to put forth information to courts across
the country that is known by them and others to be without basis, is false
on its face and considered by responsible scientists to be junk science? Why
is it that every day “parent alienation syndrome”(PAS) or some facsimile
thereof, which has no basis in reliability or validity and passes no muster as
science, is put forth by lawyers through their witnesses, and then relied upon
by courts to the detriment of children? Why are these lawyers not sanctioned
for doing so?
Every state has a similar requirement of candor, some more stringent and
specific than others, but the basic framework is expressed in the American Bar
Association’s Center for Professional Responsibility Rule 3.3, which says:
a) A lawyer shall not knowingly:
1. Make a false statement of fact or law to a tribunal or fail to correct a false
statement of material fact or law previously made to the tribunal by the
lawyer;
2. Fail to disclose to the tribunal legal authority in the controlling jurisdic-
tion known to the lawyer to be directly adverse to the position of the
client and not disclosed by opposing counsel; or
3. Offer evidence that the lawyer knows to be false. If a lawyer, the lawyer’s
client, or a witness called by the lawyer, has offered material evidence
and the lawyer comes to know of its falsity, the lawyer shall take reason-
able remedial measures, including, if necessary, disclosure to the tri-
bunal. A lawyer may refuse to offer evidence, other than the testimony
of a defendant in a criminal matter, that the lawyer reasonably believes
is false.
CONTACT Toby G. Kleinman toby@adlerkleinman.com Adler & Kleinman, Attorneys at Law,
P.O. Box 1360, Highland Park, NJ 08904.
© 2016 Toby G. Kleinman
b) A lawyer who represents a client in an adjudicative proceeding and who
knows that a person intends to engage, is engaging or has engaged in
criminal or fraudulent conduct related to the proceeding shall take
reasonable remedial measures, including, if necessary, disclosure to the
tribunal.
c) The duties stated in paragraphs (a) and (b) continue to the conclusion of
the proceeding, and apply even if compliance requires disclosure of infor-
mation otherwise protected by Rule 1.6. [Note: This rule even protects
privileged and/or confidential information learned through the
attorney/client relationship.]
d) In an ex parte proceeding, a lawyer shall inform the tribunal of all material
facts known to the lawyer that will enable the tribunal to make an
informed decision, whether or not the facts are adverse (American Bar
Association, 2016).
The simple answer to the questions raised is that there is minimal or no
accountability for attorneys for not following the prescribed guidelines despite
the fact that it is unethical. To me, the best answer to stopping this behavior is
for lawyers and others who become aware of this to file grievances against the
people who are putting false information forward to a court.
Lawyers who submit reports and/or put witnesses on the stand to give opi-
nions based upon junk science are violating the basic tenet of their ethics.
Because there are these stringent ethical requirements, judges have a right
to assume that attorneys who come before them are practicing according to
ethical standards. An attorney has an obligation to bring unethical behavior
to the attention of court and/or to an ethics board, when an attorney brings
junk science forward, the court can rely upon it. It is either up to the opposing
counsel to raise it or if the attorney putting it forward knows it is baseless in
science s/he has an obligation to raise the issue.
It seems simple but it is more complex because since it has become com-
mon knowledge that PAS is junk science (as noted in the commentaries in this
issue and those the research they cite) and does not meet any admissibility
standards in the law, the same techniques and recommendations promoted
by Richard Gardner (1992) and his PAS are now being utilized by other men-
tal health professionals without the PAS label, but still have no basis in science.
The question then becomes what can be done about it? Attorneys have sev-
eral procedures which can be utilized to identify what I refer to as the syndrome
of attempted cooption by use of language. The law uses tests to determine
appropriate testimony. Simply put, there are rules of evidence adopted by the
federal courts and each state court. They need to be known and used by all law-
yers who practice in court. Lawyers daily argue principles and methods are
flawed and without scientific foundation and the next day the same lawyer
on behalf of an accused batterer, for example, comes to court to argue on behalf
148 T. G. KLEINMAN
of those unscientific principles. These lawyers are violating their ethics and
should be brought before the ethics committee and the court. While an attorney
could plead ignorance of the correct science and that s/he was relying upon the
“expert,”s/he cannot do so truthfully where s/he plays both sides of the coin
depending upon whom s/he is representing that day. Central to all of this is
the duty to the tribunal and not to put forth things known to be false.
The mental health professionals who still use Gardner’stheoryandideas,
absent its name, put forth principles and methods which are unreliable, such
as the conclusion that mothers whose children are genuinely abused tend to be
passive and unassertive. There is no scientific evidence that such an assertion
is true. Yet evaluators daily berate mothers for anger at their abusive husbands.
Lawyers must know the law and the science, and the basic premises upon which
Gardner based his conclusion to assert alienation. They must then be able to chal-
lenge the expert on the scientific basis for any conclusions which are not based in
science. In doing so any unscientific tenet asserted must be called to the attention
of the court. The court can then have a hearing on that tenet. The mental health
professional should be held accountable with their licensing board. The lawyer
who puts or attempts to put this information forward to a court after learning
it is unscientific must likewise be brought to the attention of the licensing board.
Where there is a legitimate legal argument, both sides can be heard and the
matter can be brought through the appellate processes. However, this is not
one of those arguments where there are two legitimate sides. There has never
been science to back up Gardner’s’principles and methods as he admitted.
Indeed when Dr. Gardner was teaching at Columbia University in New York,
a complaint was registered with his Dean, Herbert Pardes, who wrote a letter
saying in pertinent part:
We appreciate the fact that Dr. Gardner’s views are controversial and offensive to
some people. They are, however his views and so long as he presents them as his
views based upon his own clinical experience and does not inappropriately claim
that they are facts based on research, he does not cross the boundaries which
protect academic freedom in a University.
In response to earlier complaints, our Psychiatry Department convened a special
committee which reviewed Dr. Gardner’s work.…The committee found that
Dr. Gardner had been careful to qualify any conclusions as his own opinion ….
He rarely makes citations except to his own work.
There are many here at the University who disagree with Dr. Gardner, but he has
a right to his views so long as he does not falsely present them as the results of
research …. (Letter from Columbia University, Dean Herbert Pardes, Health
Services Division, Office of the Vice President for Health Sciences and Dean of
the Faculty of Medicine, November 23, 1999)
Rule 702 is the federal rule for testimony by expert witnesses. This rule has
been adopted by the majority of states and pursuant to Rule 702 (Federal
Rules of Evidence, Article VII, Rule 702).
JOURNAL OF CHILD CUSTODY 149
A witness who is qualified as an expert by knowledge, skill,
experience, training, or education may testify in the form of an opinion or
otherwise if:
a) The expert’s scientific, technical, or other specialized knowledge will
help the trier of fact to understand the evidence or to determine a fact
in issue;
b) The testimony is based on sufficient facts or data;
c) The testimony is the product of reliable principles and methods; and
d) The expert has reliably applied the principles and methods to the facts of
the case.
Thus,anyonewhoseekstogiveexperttestimonymustfirstbequalified
as an expert. Once qualified, their testimony must be not only based upon
sufficient facts or data, but the underlying principles upon which their
interpretation is given must be based upon “reliable principles and
methods”and these methods must be reliably applied to them. In addition
to Rule 702 and/or where Rule 702 may not have been adopted by a state,
then the general rules of Frye and Daubert control admissibility of
testimonial evidence. (Frye v. United States, 1923; Daubert v. Merrell Dow
Pharmaceuticals, 1993).
The Frye standard also known as the Frye test is a test for general accept-
ance in the scientific community, such that opinion must be based upon a
scientific technique that is generally accepted as reliable in the relevant scien-
tific community. In the more recent case of Daubert v. Merrell Dow Pharma-
ceuticals (1993), the Supreme Court held that the Federal Rules of Evidence
superseded Frye as the standard for admissibility of expert evidence in federal
courts as to reliability and held,
“…general acceptance”is not a necessary precondition to the admissibility of
scientific evidence under the Federal Rules of Evidence, but the Rules of
Evidence—especially Rule 702—do assign to the trial judge the task of ensuring
that an expert’s testimony both rests on a reliable foundation and is relevant
to the task at hand. Pertinent evidence based on scientifically valid principles
will satisfy those demands. [Note: Daubert did not overturn Frye but superseded
Frye]
Subsequently many states found that PAS has no scientific basis for admis-
sion in court. For example, in Tungate v. Kentucky (1995), the Kentucky
Supreme Court held Gardner’s testimony inadmissible because it lacked
scientific basis. Later in New York, the same ruling occurred in the case of
People v. Fortin (2000):
The defense has sought to introduce testimony as part of its case regarding a
psychological syndrome called Parental Alienation Syndrome. Since Parental Alien-
ation Syndrome has never been the subject of a Frye hearing in New York State, a
Frye hearing was requested by the District Attorney and consented to by the
150 T. G. KLEINMAN
defense. At the hearing the defense called one witness to describe Parental Alien-
ation Syndrome (hereinafter called PAS). This witness called by the defense was
Dr. Richard Gardner, a psychiatrist who has been a pioneer in writing about and
discussing the syndrome in question.
Since there was a considerable delay between the occurrence of the acts set forth
in the indictment and a report being made to the police, PAS is being offered to
support the defense position that because of surrounding circumstances and inter-
familial discord the victim lied and fabricated this alleged incident of rape with
respect to the defendant.
Relying upon the case of People v. Wesley (1989), Chief Judge Kaye (at 437, n4),
that “[i]t is not for a court to take pioneering risks on promising new scientific tech-
niques, because premature admission both prejudices litigants and short-circuits
debate necessary to determination of the accuracy of a technique.”[emphasis added]
Thus, based upon the testimony at the hearing, this court finds that the defend-
ant has not established general acceptance of Parental Alienation Syndrome within
the professional community…. [emphasis added]
Frye’s principle is a scientific practice to have general acceptance of accu-
racy and reliability within the community of scientists that practice in that
field. For example a polygraph, although widely liked by police and law
enforcement, is not accepted in court because it cannot actually detect lies.
It can only detect whole truths. It is subjective.
The finding in Fortin comports with the Ethical Principles of Psychologists
and Code of Conduct Principle C which makes the psychologists’duty clear,
that:
Psychologists seek to promote accuracy, honesty, and truthfulness in the science,
teaching, and practice of psychology. In these activities psychologists do not steal,
cheat, or engage in fraud, subterfuge, or intentional misrepresentation of fact…
(American Psychological Association, 2010a)
Principle 2.04 of the Code of Ethics requires psychologists’work to be
“based upon established scientific and professional knowledge of the disci-
pline”(American Psychological Association, 2010b) while 5.01 requires the
“avoidance of false or deceptive statements”(American Psychological Associ-
ation, 2010c). Since it is accepted that PAS does not exist nor does its tenets
have any basis in science, the only way I believe its use can be stopped is by
accountability of those who use or attempt to use it in court and in public.
There are huge numbers of mental health professionals who promote this
unscientific and unreliable theorem. This must be stopped and should be
brought to their respective ethics boards.
People are permitted of course to have honestly held beliefs which are not
based in science. Just because someone is an expert and has an opinion does
not make it an expert opinion permitted in court. They are personal. The
court is not the place for personal opinion, even by an expert.
Over time many mental health professionals have utilized these unscientific
and unethical practices to not only promote their baseless opinions to court but
JOURNAL OF CHILD CUSTODY 151
they have hurt hundreds and maybe thousands of children and protective par-
ents in the process. They often go unchallenged and without any accountability.
It is time for that to stop. We must put our own fears aside and help those
who are most vulnerable in the system: Children and their protective parents.
Unless we begin to challenge the proponents of fake science and file grie-
vances to take on the people who so willingly put forth personal opinion
under the guise of expert opinion, we cannot hope to stop this infection.
The physical and emotional stability of children is being withered away when
we remove them from a protective parent.
Gardner followers are essentially abuse deniers. They seem to believe that
protective parents alienate children from their abusive parent for no reason
and should lose custody when they raise the issue of abuse. These people
use unscientific means and their status to have that child placed with a person
the child has accused of abusing him/her. Since most abuse complaints orig-
inate from the child, they are put forth to the court by their protective mother,
and statistics demonstrate that it is very risky for a protective parent to raise
child abuse as more than 70% will lose custody to the abuser (Saunders, Faller,
& Tolman, 2011). Therefore, absent raising our voices and signing our names
to ethics complaints wherever we see this abhorrent behavior, we become a
part of a system that allows the placing of a child in an abuser’s home.
Lawyers can bring other lawyers to the court and to ethics boards when
attorneys practice law by both promoting alienation in one case using false
science theories then fighting it as false, knowing it is junk science in another.
Where a lawyer does not know opposing counsel in other cases, s/he should
still challenge the other lawyer’s knowledge of the falsity of the claims of alien-
ation in advance by giving this information directly to the court, quite apart
from the case information itself. They can seek hearings and use other legal
mechanisms to expose the unethical behavior and when all else fails in
advance of trial, they can cross examine experts on science, reliability, and
methodology of their opinion. This is hard work but may save a child. I think
it is worth it.
References
American Bar Association. (2016). Model rules of professional conduct. Washington, DC:
American Bar Association.
American Psychological Association. (2010a). Ethical principles of psychologists and code of
conduct: Principle C: Professional and scientific responsibility. Retrieved from http://www.
apa.org/ethics/code/code-1992.aspx
American Psychological Association. (2010b). Standard 2.04: Bases for scientific and pro-
fessional judgments. Retrived from http://www.apa.org/ethics/code/code-1992.aspx
American Psychological Association. (2010c) Standard 5.01: Avoidance of false of deceptive
statements. Retrieved from http://www.apa.org/ethics/code/code-1992.aspx
Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993).
152 T. G. KLEINMAN
Frye v. United States, 293 F.1013 (D.C. Cir., 1923).
Gardner, R. A. (1992). The parental alienation syndrome. Cresskill, NJ: Creative Therapeutics.
People v. Fortin, 184 Misc.2d, 706 N.Y. S.2d 611 (N.Y. Co. Ct. 2000).
People v. Wesley, 73 N.Y.2d 351 (N.Y. 1989).
Saunders, D., Faller, K. C., & Tolman, R. M. (2011). Child custody evaluators’beliefs about
domestic abuse allegations: Their relationship to evaluator demographics, background, dom-
estic violence knowledge and custody-visitation recommendations. Washington, DC: National
Institute of Justice. Retrieved from https://www.ncjrs.gov/pdffiles1/nij/grants/238891.pdf
Tungate v. Kentucky, 901 S.W.2d 41 (Ky. 1995).
JOURNAL OF CHILD CUSTODY 153
