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FAMILY LAW: The Legal-Interest Model for Preverbal Child Clients

By Lisa Kelly and Alicia LeVezu

When the state intervenes in a child’s life through a child abuse and neglect case, a court proceeding is initiated and a plethora of legal rights attach. Children in these situations need trained legal representatives to protect these rights. In many states, these attorneys are expected to advocate for what they believe to be in the child’s best interests. This article explores the concept of legal-interest advocacy as an alternative to best-interest representation for nonverbal clients, and it outlines how legal-interest advocacy can address the major criticisms of best-interest representation while ensuring that children’s legal rights are protected.

The current paradigm for representation of young children. Due in part to the language of the Child Abuse Prevention and Treatment Act, which required that each child in the child welfare system be appointed a guardian ad litem in his or her proceedings, the representation of children by an attorney was largely understood as akin to guardian ad litem representation. One key feature of best-interest attorneys is the freedom to depart from the expressed position and direction of their child clients and the ability to pursue an alternative direction based on the attorney’s own determination as to what is ultimately best for the client.

Throughout years of debate and discussion, best-interest representation has been criticized as an improper model of attorney representation. A common argument made against this model is that it assumes an attorney is qualified to determine what is best for a child in a difficult situation. Such domination allows for inconsistent direction between one attorney and the next and a lack of transparency in the decision-making process.

In the 1990s, the American Bar Association adopted Standards for Attorney Representation that encouraged a different model of representation, that of advancing only the child’s “legal interests.” When a client is preverbal, the attorney is instructed to advocate for the child’s legal interests and request a separate guardian ad litem. The Standards adhere to statutory and case law as the guiding principle and move away from individual determinations regarding what is best.

A critical examination of legal-interest advocacy. There is legitimate concern that the legal interest model will continue to perpetuate the failures of best-interest advocacy while providing the cover of legitimacy, cloaking attorney biases in the language of legal rights so that these same biases now appear to have the authority of law.

However, the strict legal-interest model proposed here is self-conscious in its restraint. It takes to heart one of the most central tenets of the lawyer’s role, which is that it is inappropriate for lawyers to substitute their own judgment for that of their clients. Under this model, legal-interest attorneys do not have the authority to assert their will, and their power is constrained to those specific rights enumerated in statute or clearly delineated in case law.

On the other side of the spectrum, attorneys who are accustomed to best-interest advocacy will likely decry any infringement on their use of discretion as a grave threat to the rights of children. Many will claim that best-interest representation is necessary to ensure that children are protected at a time when they are most vulnerable and at a time that is critical to their emotional and intellectual development.

Very young children caught in the child welfare system are at a critical time in their emotional and mental development, and their inability to verbalize their needs makes them particularly vulnerable. However, these truths do not necessitate the granting of the extreme power that is currently bestowed on best-interest attorneys. By removing this ultimate power from the attorney and placing it with the judge, we create a situation in which all parties are able to raise any concerns on equal footing and no party is empowered to present his or her personal opinion as the ultimate authority.

Before the legal community can gather behind the concept of legal-interest advocacy, we must ensure that it addresses the problems associated with the best-interest model: allowing implicit biases, lack of accountability, inconsistent application, and assumption of nonexistent expertise in an attorney; serving state prosecutorial functions; disrupting appropriate power balances; and violating the ABA Model Rules of Professional Conduct.

The legal-interest model does not allow for the domination of implicit biases by the attorney because it removes the ability of the attorney to choose between competing directions of the case. Under a legal-interest framework, determinations about what is best for a child will not be made by an unaccountable attorney but will be left to judges. The intrusion of implicit bias cannot be completely eliminated, but by moving the determination of the ultimate questions at issue to the purview of the judge, the parties have the ability to increase accountability through open hearings and the appellate process.

As for the concern for inconsistency, a critical difference between the legal-interest and best-interest models is predictability. While the best-interest advocate is permitted to indulge his or her gut instinct, the legal-interest advocate is constrained by the law.

Best-interest advocacy calls on a lawyer to determine the best course of action for each particular child. Assigning this determination to a child’s attorney assumes his or her expertise in child welfare systems, mental health, child development, and social work. Alternatively, legal-interest advocacy relies only on skills that are inherent to the legal profession that all lawyers are trained to practice.

According to best-interest critics, best-interest advocates often err on the side of removal and nearly always align with the state. As such, they are said to serve state prosecutorial functions. Alternatively, the legal-interest model will serve state prosecutorial functions to the degree that state statutes serve prosecutorial functions, but no more.

Best-interest advocacy has been criticized for disrupting appropriate power balances by assigning the ultimate legal question to an attorney instead of the judicial officer. Under the best-interest model, the child’s advocate is often charged with making the ultimate determination in the proceeding: what course of action is in the child’s best interest. The legal-interest model removes this determination from the attorney’s purview and returns it to the judicial officer, who has the authority to make such determinations.

Finally, some have argued that the best-interest model violates the Model Rules. No matter which approach an attorney chooses, the Model Rules do not spell out the ideal approach to representing preverbal clients. However, the legal-interest model is more consistent with a lawyer’s professional duties than the best-interest model. The Model Rules instruct attorneys to follow their client’s direction and to treat a client with diminished capacity as much like a client with full capacity as possible.

Legal-interest advocacy allows for protection of a child’s legal rights and ensures accountability of the state to the needs of the child. By limiting the discretion of an attorney and increasing transparency, we can help ensure that legal representation does not result in the imposition of an individual attorney’s values, implicit biases, and inexpert opinions. We can also ensure that the judge is reminded at every turn of the rights of the child within the proceedings.

ABA Section of Family Law

This article is an abridged and edited version of one that originally appeared on page 383 of Family Law Quarterly, Fall 2016 (50:3).

For more information or to obtain a copy of the periodical in which the full article appears, please call the ABA Service Center at 800/285-2221.

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