General Practice, Solo & Small Firm DivisionMagazine
The Child as a Client
BY KATHERINE HUNT FEDERLE
© American Bar Association. All rights reserved.
Katherine Hunt Federle is an Associate Professor of Law and Director of the Justice for Children Project at The Ohio State University College of Law. She has written extensively in the area of children’s rights, drawing on her experiences during the last 14 years as a lawyer for children.
W hat does it mean to be a lawyer for a child? Some may be surprised to learn that when the client is a child, the lawyer’s obligations to that child do not differ from those duties owed to the adult client.
The child client has a right to expect diligent, loyal, zealous, and competent representation from a lawyer who is bound by the rules of confidentiality and privilege. The minor client also may expect the lawyer to communicate and consult with her and honor her decisions about the objectives of the representation. Nevertheless, a number of questions arise when a lawyer represents a child client.
The Role of the Child’s Lawyer
In many cases, it may be necessary for the lawyer to clarify the nature of his appointment as the child’s representative because it may not be clear if the lawyer is appointed as a lawyer or as a guardian ad litem. This uncertainty stems from confusion about whether children have rights, and if so, what those rights are, including the right to counsel. The Supreme Court in In re Gault1 held that a minor is entitled to counsel during a proceeding to determine delinquency that may result in commitment to an institution where the minor’s freedom is curtailed. But the Court left unanswered whether that right extends to all phases of a delinquency proceeding or even if it has any application to a delinquency matter that does not involve a deprivation of liberty. Moreover, the Gault Court did not address the minor’s right to counsel in such nondelinquency proceedings as status offense or abuse and neglect cases.
Although the Supreme Court has never ruled on these issues, many states, through statute, case law, or court rule, have defined the role of the child’s representative in these matters. For example, most states recognize the child’s right to counsel at the outset of any delinquency case. Some states also recognize the minor’s right to counsel in nondelinquency proceedings as a matter of state law, although there is little uniformity across or even within jurisdictions.
While the lawyer should first check state law sources to ascertain the nature of her appointment,2 the lawyer should also consider whether the court’s failure to appoint counsel for the child violates state or federal constitutional norms. But generally, as a matter of federal and even state constitutional law, it is unclear whether a child is entitled to counsel in a status offense case or an abuse, neglect, or dependency proceeding.
Custody disputes also raise interesting problems. Some states recognize the court’s authority to appoint a lawyer for the child while others permit the appointment of either a lawyer or a guardian ad litem. The vast majority requires the representative to represent the child’s interests, although in most jurisdictions it is unclear what those interests are and what it means to represent those interests. For example, some statutes imply that the lawyer’s role is as an advocate for the child’s expressed wishes, while other statutes indicate that the lawyer is the guardian of the child’s best interests and the guardian is a lawyer for the child. Even within the same state, the role of the child’s representative may vary from region to region and court to court.
Establishing the Attorney-Client Relationship
When the nature of the appointment is unclear, the lawyer should request clarification from the court. In so doing, she should seek an appointment as a lawyer. After all, the lawyer has been trained to be a lawyer and has developed those skills best suited to lawyering for the child client. Moreover, children should have a voice in those proceedings affecting them, a voice that should be heard by the court. The lawyering role is consistent with this view and is best suited to insuring that children do participate in the legal decisions affecting them.
Once the lawyer has clarified with the court that his role is that of a lawyer for the child, he must take the time to establish a relationship with his child client. Time, however, is the lawyer’s enemy and the lawyer is always looking for ways to save time. While establishing a relationship with the client and keeping her constantly informed and involved may appear time-consuming and inefficient, the good lawyer knows that the initial investment of time involved in establishing a solid relationship will prove invaluable. In doing so, the lawyer may encourage the client’s trust, respect, cooperativeness, and candidness. In turn, this should enhance the lawyer’s understanding of the client’s goals and may actually expedite matters because the lawyer will have a more complete appreciation of the client’s problems and objectives.
Unfortunately, this sort of initial investment of the lawyer’s most precious resource is seldom made, perhaps because some lawyers view their clients as an impediment to the expeditious resolution of the case. Although this approach may work with some less demanding or assertive clients, the failure to establish a strong attorney-client relationship may prove fatal to the relationship with the child client.
Unlike the adult client, who may at least understand the role of the lawyer and the need for client cooperation and trust, the child client may not understand the roles of the lawyer and the client and may be less willing to trust the lawyer until that lawyer has earned his trust. This is not to say that adult clients always trust their lawyers or even intuit the nature of the attorney-client relationship. But many adult clients at least recognize the strategic value of cooperating with their lawyers on some basic, albeit superficial, level. The child client, however, is less likely to talk to an adult if he does not like or trust that adult and it simply does not matter if that adult also is his lawyer.
In establishing the attorney-client relationship, the lawyer should be prepared to spend a sufficient amount of time getting to know her client in a setting conducive to the establishment of a solid working relationship. In making sure the minor client is comfortable, the lawyer should take into account the child’s age, maturity, attention span, and physical surroundings. Many younger clients, for example, simply would not feel comfortable sitting in an office while the lawyer sits behind her desk and conducts an initial interview. In such a case, the lawyer for a young child may want to create a space in her office where toys are available so that the lawyer may engage the child on a more appropriate level. The child’s ability to focus for long periods of time may also dictate just how much time the lawyer should spend discussing relevant legal matters.
Because it may take some time to establish rapport, the lawyer should not attempt to prematurely force the child into a relationship. Any effort to do so may further damage attempts at establishing rapport. However, it is very important not to underestimate the child’s ability to understand or participate in the attorney-client relationship. No client wants to be treated as an inferior and the child client is no exception. The lawyer for the minor client, therefore, must exercise some care in working with the client in order to avoid insulting or alienating the child. By tailoring the way he communicates with his minor client to the client’s individual capacities, the lawyer facilitates a client-appropriate and nonjudgmental dialogue.
Establishing an attorney-client relationship necessarily involves empowering the child. Most children have come to expect that their wishes and views will not be given much credence; nevertheless, the lawyer must listen to the child client in order to understand and seek the client’s objectives. For many children, having an adult actually listen to them can be a new and empowering experience. Of course, the lawyer may not agree with those expressed wishes or may find that they simply are not capable of being satisfied under existing law; as with any client, the lawyer is free to counsel the child about the realistic likelihood for success. But within the confines of legal ethics, the child client retains the power to direct the litigation and determine the objectives of the representation.
The lawyer must also be sensitive to status and avoid parentifying the relationship between lawyer and child. The lawyer may feel compelled to tell her minor client what the client can or cannot do or seek a resolution that the lawyer believes is in the child’s best interests. However, the child may resent a lawyer who acts paternalistically and may not wish to work with that lawyer. Nevertheless, the role of the lawyer for the child does not permit the lawyer to do what she thinks is best without regard to her client’s expressed wishes or desires. In this sense, the lawyer must be keenly aware of the limits of her role and must strive to stay within those limits. By staying within the role defined by the profession, the lawyer will further enhance the relationship with her client by acknowledging that the client has the power to define the objectives of the representation.
What Rights Do Children Have?
One of the more interesting aspects of representing children is the complexity of the law affecting children. Ascertaining the legal rights and obligations of minors may not be clear as a matter of either statutory or constitutional law. The fact is that many states permit courts to appoint a lawyer for the child without any clear delineation of the child’s rights or obligations. In this sense, the lawyer for the child should realize that much of what she does may involve issues of first impression.
Representing children creates the potential for creative lawyering. The lawyer representing the child client also has an obligation to obtain the expertise necessary for practice in this specialized area. No lawyer should agree to represent a child client without being prepared to acquire the essential legal knowledge and skills. Representing the minor client can be rewarding, but the lawyer who represents the child client has a serious obligation that should not be undertaken lightly. The lawyer for the child should embrace the challenges of her role while looking forward to helping frame potentially new solutions that will serve her client’s legal interests.
When the Child Client Is Disabled by Her Minority
A related issue is the extent to which a minor client may exercise choice and judgment. The Model Code and the Model Rules recognize that a client may be incapable of exercising considered judgment. The Code specifically notes that the responsibility of the lawyer may vary according to the intelligence, experience, mental condition, or age of the client.3 If such condition renders the client incapable of considered judgment, the lawyer should look to the client’s guardian ad litem or, in the absence of a legal representative, should make decisions for the client.4 However, as long as the client is capable of understanding the matter or contributing to the advancement of her interest, then the lawyer should look to the client for direction. Thus, the lawyer must, as much as possible, maintain a normal attorney-client relationship.
The Model Rules are more explicit about the lawyer’s obligation to his child client. The Rules begin from the premise that the client is capable of making decisions about important matters affecting her representation. Although minority may be a disability under the Rules, the lawyer for the child nevertheless has an obligation to maintain a normal attorney-client relationship whenever reasonably possible.5 The child client, even though legally incompetent, may still have the ability to reach conclusions about matters affecting her own interests.6 Furthermore, the commentary to the Rules specifically states that even young children may be competent to participate in the attorney-client relationship.7
The Code and the Rules thus require the lawyer to do everything in his power to facilitate and maintain a normal attorney-client relationship. A finding of disability should be rare. Although there will be times when the child client is disabled because of her minority, the lawyer should, in most instances, find the client is able to determine the objectives of the representation. Simple disagreement, however, with the client’s choices should not be a sufficient basis for concluding that the client is incompetent. While it may be tempting to find that the client is incapable of considered judgment because the lawyer believes that judgment is unwise, the lawyer’s counseling function is the most appropriate means of affecting client choice while respecting client autonomy.
Limits to the Attorney-Client Privilege
The lawyer who undertakes representation of a client must treat all client communications as confidential. The rules governing client confidentiality apply with equal force to communications made by the minor client. Thus, the lawyer must treat all communications from her child client as confidential to the extent those communications are protected by the Model Code of Professional Responsibility or the Model Rules of Professional Conduct.
As a general rule, the Model Code prohibits disclosure of any confidence or secret.8 A confidence is defined as information protected by the attorney-client privilege while a secret is information gained in the professional relationship that the client has requested be held confidential or disclosure of which would be detrimental to the client.9 The Model Rules define confidentiality more broadly; they prohibit disclosure of any information relating to the representation of a client.10 The Model Code, however, authorizes the lawyer to breach confidentiality when the client intends to commit a criminal act11 while the Model Rules permit disclosure to prevent the client’s commission of a criminal act when the lawyer reasonably believes the act is likely to result in imminent death or substantial bodily injury.12
Neither provision, however, should be read as permitting disclosure of a child client’s confidence in the absence of the child’s intention to commit a crime. Mere belief that the child has decided to pursue a particular course of action that the lawyer believes is detrimental to the child is not enough to justify disclosure of a client confidence. Nor should the lawyer assume that revealing the client confidence would be in the child’s best interests.
Certain state statutes add additional complexity to the relationship between lawyer and minor client. Approximately 18 states impose a duty on any person to report child abuse.13 Only two states—Mississippi and Ohio—specifically require the lawyer to report such abuse.14 The Ohio statute states that the lawyer must report even if the lawyer has to breach client confidentiality. Although it is unclear whether broad reporting statutes vitiate the attorney-client privilege or are constitutional, the lawyer must be aware of the possible limits placed on the attorney-client privilege and advise his clients of those limits. CL
1. 387 U.S. 1 (1967).
2. While the lawyer for the child may consider local practice norms when ascertaining the nature of her appointment, such norms may not be consistent with a good lawyering model. Furthermore, the parties and even the court may resist zealous advocacy for the child, whose interests are often in dispute and for whom the other parties may claim to be acting.
3. Model Code of Professional Responsibility EC 7-11 (1980).
4. Model Code of Professional Responsibility EC 7-12 (1980).
5. Model Rules of Professional Conduct Rule 1.14(a) (1997).
6. Model Rules of Professional Conduct Rule 1.14(a) cmt. (1997).
8. Model Code of Professional Responsibility DR 4-101(B)(1) (1980).
9. Model Code of Professional Responsibility DR 4-101(A) (1980).
10. Model Rules of Professional Conduct Rule 1.6(a) (1980).
11. Model Code of Professional Responsibility DR 4-101(C)(3) (1980).
12. Model Rules of Professional Conduct Rule 1.6(b)(1) (1980).
13. These states are Connecticut, Delaware, Florida, Idaho, Indiana, Kentucky, Maryland, Nebraska, New Hampshire, New Jersey, New Mexico, North Carolina, Oklahoma, Rhode Island, Tennessee, Texas, Utah, and Wyoming.
14. Miss. Code Ann. § 43-21-353 (1998); Ohio Rev. Code Ann. § 2151.421 (Anderson 1998).