March 01, 2016

Representing Child-Clients with “Diminished Capacity”: Navigating an Ethical Minefield

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Imagine that you are assigned to represent 13-year-old Alicia, a state ward currently living in substitute care with a non-relative foster parent. At age six, Alicia was removed from her mother’s home after being sexually abused by her stepfather. Alicia’s mother never fully accepted the reality of her daughter’s abuse, and her stepfather has recently returned to the mother’s home after serving a prison sentence. Alicia has privately shared with you information about her mother’s drinking that gives you additional misgivings about her safety should she resume living at home. Nonetheless, your client desperately wants to return to her mother’s care and expresses confidence that she can protect herself should problems arise at home. She has instructed you, as her advocate, to argue for this result in court.1

Can you do so, or must you follow Alicia’s instructions? If you choose not to abide by your client’s stated goals, what are the possible ethical and practical consequences of your decision? And if your judgment rests on information shared privately with you by your client, what is the scope of your duty of confidentiality, and what are the attendant risks of either keeping or breaking your client’s confidences?2

Advocates assigned to represent children routinely face ethical and legal dilemmas arising from their clients’ status as individuals with so-called “diminished capacity.” These challenges often seem most pointed with clients in their early teens, in the beginning stages of their emergence as adults with full rights of autonomy, including the unfettered right to guide their attorneys in litigation. For older clients approaching the age of legal majority, it becomes increasingly difficult for lawyers to justify substituting their judgment based solely on a disagreement with the wisdom of the client’s instructions, in the absence of any evidence of a mental impairment. And for very young clients at the other end of the spectrum, even when advocates are assigned to act as attorneys who are at least nominally bound by their clients’ expressed wishes, the notion of client-driven representation is little more than a legal fiction, leaving lawyers free to decide how best to serve the client’s interests.3 In the middle ground of early adolescence, however, balancing a child client’s stated desires against what seems reasonable and rationale may present conscientious attorneys with some unusually challenging ethical issues.

For the lawyer who is trying to understand how best to guide someone like Alicia through the court process, the first and perhaps most critical task is to understand the parameters of the lawyer’s assigned role. Children have a constitutionally protected right to representation in only a few circumstances,4 but states normally provide for mandatory representation of children by statute in child protection cases.5 Additionally, many states allow for the discretionary appointment of lawyers for children in domestic disputes and other related proceedings affecting child custody.6 However, when lawyers are appointed for children, their prescribed roles may vary widely. In many jurisdictions, appointed advocates for children serve in the traditional role of a guardian ad litem, with the charge of advocating for whatever the lawyer believes to be in the child’s best interests. Other jurisdictions favor the traditional attorney role, with the expectation that the lawyer – to the greatest extent possible – will follow the client’s expressed wishes in defining the goals of advocacy.7 Still others contemplate the appointment of lawyers to act simultaneously in multiple capacities.8 Each of these circumstances carries different responsibilities and boundaries, which may or may not be clearly defined by applicable statutes and/or rules.

Advocating as a Guardian ad Litem

When acting in the role of a GAL, an advocate is generally free to disregard both her client’s stated goals and the client’s request to hold information in confidence, should these goals and instructions appear to conflict with the client’s best interests.9 Doing so may obviously have an impact on the advocate’s ongoing relationship with the client, but in many circumstances the adverse consequences associated with disregarding a client’s desires or instructions can be managed through careful disclosure and age-appropriate discussion of the advocate’s role and responsibilities.

Advocating as an Attorney

For the advocate assigned to act as an attorney – bound by the Model Rules of Professional Conduct – the ethical issues posed by Alicia’s circumstances are more complicated. Model Rule 1.14 does provide a vehicle for the lawyer to disregard the child client’s instructions based on diminished capacity, but both the language of the rule and the accompanying commentary make clear that the course of taking any of the protective actions contemplated therein10 – thus effectively overriding the client’s instructions about how to proceed – is ethically disfavored. Rule 1.14 states that “[w]hen a client’s ability to make adequately considered decisions in connection with a representation is impaired, whether because of minority, mental impairment or some other reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client.” Comment 1 to Rule 1.14 explains further that even very young children may be fully capable of guiding at least some critical aspects of the course of their representation:

The normal client-lawyer relationship is based on the assumption that the client, when properly advised and assisted, is capable of making decisions about important matters. … [However, even] a client with diminished capacity often has the ability to understand, deliberate upon, and reach conclusions about matters affecting the client’s own well-being. For example, children as young as five or six years of age, and certainly those of ten or twelve, are regarded as having opinions that are entitled to weight in legal proceedings concerning their custody.

By observing that children as young as five may have the capacity to guide at least some part of their cases, the Model Rules take a position at odds with the practices of many attorneys who routinely substitute their own judgment for that of child clients in or even beyond early adolescence. It is easy to understand the protective motivations that move attorneys to discount the views and instructions of clients like Alicia, and numerous jurisdictions have given attorneys for child clients leave to disregard expressed wishes where they seem inconsistent with the child’s best interests.11 At the same time, however, it is well worth considering the ethical and practical consequences of injudiciously taking protective actions under Rule 1.14. The Model Rules direct the lawyer who is contemplating the unappealing prospect of substituting judgment to begin by evaluating the client’s “capacity.” This challenge, in theory, demands consideration of the child’s age, maturity, reasoning skills, and ability to make considered judgments. The problem is that there is no fixed test for evaluating a child’s competence as it pertains to Rule 1.14, requiring every decision about diminished capacity to be made within a specific factual context.12 This limitation in turn raises the very real prospect that the lawyer’s conclusion about a child client’s competence will hinge in practice not so much on a fair evaluation of the child’s capacity, but rather on whether the lawyer disagrees with the client’s substantive judgment.13

The circularity of this process (i.e., judging capacity based not on the client’s actual competence but rather on the perceived wisdom of her conclusions) is plainly inconsistent with the dictates and goals of Rule 1.14.14 Worse, it raises ongoing concerns about the lawyer’s ability to provide effective continuing representation. In many cases involving children, the kinds of questions illustrated above represent but one chapter in the life of a case that may extend for many years. Lawyers may console themselves with the thought that clients who say one thing actually want something else and secretly cheer when their instructions are circumvented, but there is little empirical evidence to support this thinking. More likely, the client whose lawyer has ignored her instructions will have great difficulty in overcoming a reluctance to share confidences in the future. To the extent that the lawyer’s role as counselor is central to the relationship with a child client, substituting judgment for an adolescent client, in extreme cases, may sour a relationship to the point where the client is effectively deprived of meaningful representation.

Questions about the lawyer’s duty of confidentiality are no less thorny. Alicia’s lawyer might understandably wish to disclose the confidential information about the mother’s drinking, in order to explain why the lawyer feels Alicia might not be safe in her mother’s care. The Model Rules do permit a lawyer at his or her discretion to disclose information necessary to prevent “reasonably certain death or substantial bodily harm.”15 However, even versions of the rule that contemplate mandatory rather than permissive disclosure16 still require both the attorney’s “reasonable belief” that the feared outcome will follow from non-disclosure, and that non-disclosure would lead to serious harm. In less extreme cases not covered by the exceptions built into Rule 1.6, the lawyer might still chart an ethical course to disclosure by concluding that the client lacks capacity under Rule 1.14, thereby freeing herself from the obligation to follow the client’s instruction to maintain confidences.17 However, doing so, as noted above, entails the risk of seriously compromising the lawyer’s continuing representation of the client.

All of this may be further complicated by the application of child abuse reporting laws, which vary significantly from state to state. In some jurisdictions, lawyers are subject to mandatory reporting requirements,18 raising the possibility that even as the lawyer faces the prospect of ethical sanctions for disclosing confidential information, he or she might contemporaneously be subject to criminal penalties for not disclosing the exact same information. Because Rule 1.6(b)(6) authorizes disclosure of information “to comply with other law or court order,”19 the attorney might be able to safely defend a decision to disclose as compelled by law, but the lack of authority applying this rule to mandated reports of abuse or neglect may still leave the lawyer in a legal and ethical quandary. At least one state ethics committee has attempted to address this issue by concluding that the statute extending a mandatory reporting obligation to attorneys should be construed as subordinate to the lawyer’s duty of confidentiality under Rule 1.6.20 However, this conclusion has been criticized as inconsistent with the plain language of Indiana law,21 suggesting that a lawyer might still be at risk of prosecution for failing to disclose information covered by Rule 1.6. For the careful child advocate, familiarity with a jurisdiction’s reporting requirements is obviously critical but alone may not be sufficient to help chart a course through competing ethical and statutory mandates.

Advocating Simultaneously as Attorney and Guardian ad Litem

In a minority of jurisdictions (Cook County, Illinois, among them), lawyers for children in child protection cases are routinely appointed as both attorney and guardian ad litem. Acting simultaneously in dual capacities presents the obvious prospect of a role conflict, where the lawyer’s service as attorney demands compliance with the client’s stated goals, but service in the role of a GAL compels the lawyer to disregard the client’s instructions as inconsistent with her best interests.22 Many scholars and practitioners have condemned such dual appointments as categorically unethical.23 In the context of juvenile delinquency proceedings, the Illinois Supreme Court has gone as far as stating that it is a per se conflict of interest for a lawyer to act simultaneously as an attorney and a GAL, in conflict with both the Constitution and the governing statute.24 Nonetheless, a number of jurisdictions still permit such dual representation. In a situation such as Alicia’s, the advocate’s first obligation – regardless of the nature of the assigned role – is to seek to counsel the client against an unwise course of action, consistent with the obligations imposed by Model Rule 2.1. However, should the client insist on holding to her expressed desires, most jurisdictions compel the lawyer to withdraw as GAL and seek the appointment of a replacement.25 Rule 1.14(c) requires the lawyer to seek to minimize any harm to the client in taking such a protective action, but as noted in the accompanying comments26 the act of moving to withdraw as GAL alone signals to the court and other parties that there is reason to question the client’s capacity, arguably compromising the withdrawing lawyer’s duty to minimize harm to the client under Rule 1.16(d). Even so, this is preferable to the alternative of asking a lawyer to withdraw as attorney and continue to advocate as GAL against the client’s wishes, using the client’s own shared confidences against her.

Conclusion

Lawyers who represent children routinely face exceptionally challenging ethical issues that often arise in the absence of any meaningful guidance in statute, rule, or binding legal precedent. While these issues may leave much room for argument about the safest or best course of action, most advocates agree that careful practitioners can avoid many ethical predicaments by following three important pieces of advice. First, understanding the nature of the assigned role is essential, and where an order of appointment is ambiguous, an attorney is well advised to seek clarification from the appointing authority about the expected parameters of his or her representation of the child client. Second, the lawyer must be familiar not only with the governing statute and rules, but also with other pertinent legal authority, such as mandatory reporting laws. Finally, regular contact and effective communication and counseling can help to ensure that the child client understands and appreciates the advocate’s role, even when she is uneasy with or unhappy about the course of representation.

Endnotes

1. This scenario is drawn from the circumstances considered by the Illinois Appellate Court in In re Interest of A.W., 248 Ill. App. 3d 971, 618 N.E.2d 729 (1993).

2. These questions and this article both arise from a panel of the ABA Center for Professional Responsibility’s 42nd National Conference on Professional Responsibility, held on June 2, 2016, in Philadelphia, PA. See Elizabeth Cohen, Speakers Note Complexities of Representing Children, 32 Law. Man. Prof. Conduct 367 (June 15, 2016).

3. See generally Martin Guggenheim, A Paradigm for Determining the Role of Counsel for Children, 64 Fordham L. Rev. 1399 (1996).

4. The Constitution safeguards a child’s right to representation only in juvenile delinquency proceedings where the client faces the threat of incarceration. Application of Gault, 387 U.S. 1, 41 (1967). In other proceedings involving the welfare of children, such as the termination of parental rights, children have interests protected by the Constitution but are not automatically entitled to representation as a matter of constitutional law. Lassiter v. Dep’t of Soc. Servs., 452 U.S. 18 (1981).

5. The Child Abuse Prevention and Treatment Act, 42 U.S.C. 5106a(b)(2)(B)(xiii) (West, Westlaw through P.L. 114-221, 2016), requires that as a condition of receipt of federal funding, every state must provide for a representative for every victim of child abuse. For a recent survey of state practices around the representation of children in child abuse and neglect proceedings, see First Star & Children’s Advocacy Institute, A Child’s Right to Counsel: A National Report Card on Legal Representation for Abused & Neglected Children (2012), http://www.firststar.org/wp-content/uploads/2015/02/First-Star-Third-Edition-A-Childs-Right-To-Counsel.pdf.

6. See, e.g., 750 ILCS 5/506 (West, Westlaw through P.A. 99-872 of the 2016 Reg. Sess.).

7. The ABA has expressed a clear preference for lawyers appointed in the role of attorney rather than guardian ad litem. See ABA Standards of Practice for Lawyers Who Represent Children in Abuse and Neglect Cases, Comment to Standard A-2, http://www.americanbar.org/content/dam/aba/migrated/family/reports/standards_abuseneglect.authcheckdam.pdf (Feb. 1996).

8. See, e.g., 705 ILCS 405/1-5 (West, Westlaw through P.A. 99-872 of the 2016 Reg. Sess.).

9. But see In re Christina W., 639 S.E.2d 770 (W. Va. 2006) (suggesting that a lawyer appointed to act as a GAL may still be bound by the Model Rules, including the obligation to keep client confidences imposed by Rule 1.6(a)). While assigning an advocate in the role of a GAL may simplify the advocate’s ethical responsibilities, it does not simplify the challenge of ascertaining what actually lies within a child’s best interests, or answer the concerns of many scholars who criticize the best-interest standard as amorphous, indeterminate, and subject to the intrusion of inappropriate biases. E.g., Tanya Asim Cooper, Racial Bias in American Foster Care: The National Debate, 97 Marq. L. Rev. 215, 247 (2013); Annette R. Appell & Bruce A. Boyer, Parental Rights vs. Best Interests of the Child: A False Dichotomy in the Context of Adoption, 2 Duke J. Gender L. & Pol’y 63, 66 (1995).

10. Rule 1.14(b) and the accompanying comments (5-7) describe a non-exhaustive list of protective actions that might be taken by the lawyer who concludes her client has diminished capacity and cannot guide an aspect of her representation. These include soliciting input from other individuals, seeking the appointment of a guardian and communicating with individuals or entities that have the ability to protect the client. While the rule does not explicitly contemplate disclosing the confidences of a client with diminished capacity, such a course of action would seem to fall clearly within both the letter and the spirit of the rule.

11. E.g., In re E.H., 2015 WL 7009485, at *7 (Cal. Ct. App. Nov. 12, 2015); In re Marriage of Hartley, 886 P.2d 665 (Colo. 1995) (en banc); Connecticut Informal Op. 94-29 (1994).

12. See Peter Margulies, The Lawyer As Caregiver: Child Client’s Competence in Context, 64 Fordham L. Rev. 1473, 1476 (1996).

13. Id. at 1486.

14. See ABA Comm. on Ethics & Prof’l Responsibility, Formal Op. 96-404 (1996) (“Rule 1.14(b) does not authorize the lawyer to take protective action because the client is not is not acting in what the lawyer believes to be the client’s best interests.”)

15. Model Rules of Prof’l Conduct R. 1.6(b)(1) (2016). The current rule is considerably relaxed from the prior version of Rule 1.6, which also required that the perceived harm was imminent and that it related to the client’s threatened criminal activity.

16. Ill. Sup. Ct. R. 1.6(c), for example, mandates rather than permits the disclosure of information the lawyer believes is reasonably necessary to prevent imminent death or substantial bodily harm.

17. Model Rules of Prof’l Conduct R. 1.14(c) states that when representing a client with diminished capacity, a lawyer is “impliedly authorized under Rule 1.6(a) to reveal information about the client, but only to the extent reasonably necessary to protect the client’s interests.”

18. Attorneys may be subject to mandatory reporting requirements either because they are named explicitly as mandated reporters (see, e.g., Miss. Code Ann. § 43-21-353), or because the applicable reporting statute extends broadly and without an exemption for attorneys or attorney-client confidences (e.g., Ind. Code Ann. § 31-33-5-1; Okla. Ann. Stat. Tit. 10A, §1-2-101).

19. E.g., Ill. Sup. Ct. R. 1.6(b)(6).

20. Indiana State Bar Ass’n Legal Ethics Comm., Advisory Op. 2 (2015).

21. David L. Hudson, Jr., Conflicted Over Confidentiality: Indiana Ethics Opinion Says Lawyers Not Always Obligated to Report Child Abuse, 35 Child Law Practice No. 3 (Mar. 2016).

22. Comment 8 to Model Rule 1.7 states that “[a] conflict of interest exists if there is a significant risk that a lawyer’s ability to consider, recommend or carry out an appropriate course of action for the client will be materially limited as a result of the lawyer’s other responsibilities or interests.”

23. See, e.g., Recommendations of the Conference on Ethical Issues in the Legal Representation of Children, 64 Fordham L. Rev. 1301, 1302 (1996).

24. People v. Austin M., 975 N.E.2d 22, 47 (Ill. 2012).

25. See, e.g., State Bar of Georgia, Formal Advisory Op. 10-2 (2012); Ohio Bd. of Comm’rs. on Griev. & Discipline, Op. 2006-5 (2006); Arizona Comm. on the Rules of Prof’l Conduct, Op. 86-13 (1986).

26. See Model Rules of Prof’l Conduct R. 1.14, cmt. 8 (2016).