"You're my what?" the problem of children's misperceptions of their lawyers' roles

Fordham Law Review

Volumn 64, Issue 4, 1996, Pages 1699-1761

  Buss, Emily ^a,b  

^a Juvenile Law Center

^b YALE UNIVERSITY   (United States)

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[No Author keywords available]

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EID: 0030551164     PISSN: 0015704X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (227)

1. The stories in this Article are based on the actual experiences of lawyers, including myself, who represent children, and of children who have been represented by lawyers. Names have been changed to protect the clients' privacy.
2. For purposes of clarity, I will use feminine pronouns in referring to the generic child's lawyer, and masculine pronouns in referring to the generic child throughout this Article.
3. Donald N. Duquette & Sarah H. Ramsey, Representation of Children in Child Abuse and Neglect Cases: An Empirical Look at What Constitutes Effective Representation, 20 U. Mich. J.L. Ref. 341, 346-54 (1987) (noting lack of consensus about the role and responsibilities of a child's attorney in abuse and neglect proceedings); Linda D. Elrod, Counsel for the Child in Custody Disputes: The Time is Now, 26 Fam. L.Q. 53, 57-59 (1992) (discussing the considerable confusion and disagreement about the role a lawyer should assume in representing children in custody matters); Robyn-Marie Lyon, Comment, Speaking for a Child: The Role of Independent Counsel for Minors, 75 Cal. L. Rev. 681, 688-93 (1987) (noting that an absence of definitive articulation of the appropriate role for a child's representative has left each attorney to make her own decision about what role to assume); Sarah H. Ramsey, Representation of the Child in Protection Proceedings: The Determination of Decision Making Capacity, 17 Fam. L.Q. 287, 289-91 (1983) (noting the disagreement among scholars, and lack of guidance in case and statutory law about how to represent children in child protection proceedings); see also Ann M. Haralambie, The Child's Attorney: A Guide to Representing Children in Custody, Adoption, and Protection Cases 2 (1993) (discussing the lack of uniformity in state law about what it means to be appointed to represent a child in the dependency and custody contexts). This Article focuses on the representation of children in the dependency system and in the related context of termination of parental rights proceedings, and includes discussion of representation in the custody context only to the extent the same analysis applies. In my view, the heart of the argument applies equally well in both contexts. The analysis, however, is most compelling for children in the dependency system who generally come into the legal system from a harsher history, face worse options at the bar of the court, are less likely to share their parents' legal interests, and remain involved in the court process for considerably longer. In contrast to the disagreement and confusion about the role children's attorneys should assume in dependency and custody proceedings, the role to be assumed by attorneys representing minors in juvenile justice proceedings (namely, the traditional attorney role) has been clearly established and widely accepted. See Institute of Judicial Administration-American Bar Association, Juvenile Justice Standards, Standards Relating to Counsel for Private Parties Standard 3.1 (1979) [hereinafter IJA-ABA Standards]. For a general review of the history and reasoning leading up to the adoption of these standards, see the introduction to the IJA-ABA Standards.
4. Donald N. Duquette & Sarah H. Ramsey, Representation of Children in Child Abuse and Neglect Cases: An Empirical Look at What Constitutes Effective Representation, 20 U. Mich. J.L. Ref. 341, 346-54 (1987) (noting lack of consensus about the role and responsibilities of a child's attorney in abuse and neglect proceedings); Linda D. Elrod, Counsel for the Child in Custody Disputes: The Time is Now, 26 Fam. L.Q. 53, 57-59 (1992) (discussing the considerable confusion and disagreement about the role a lawyer should assume in representing children in custody matters); Robyn-Marie Lyon, Comment, Speaking for a Child: The Role of Independent Counsel for Minors, 75 Cal. L. Rev. 681, 688-93 (1987) (noting that an absence of definitive articulation of the appropriate role for a child's representative has left each attorney to make her own decision about what role to assume); Sarah H. Ramsey, Representation of the Child in Protection Proceedings: The Determination of Decision Making Capacity, 17 Fam. L.Q. 287, 289-91 (1983) (noting the disagreement among scholars, and lack of guidance in case and statutory law about how to represent children in child protection proceedings); see also Ann M. Haralambie, The Child's Attorney: A Guide to Representing Children in Custody, Adoption, and Protection Cases 2 (1993) (discussing the lack of uniformity in state law about what it means to be appointed to represent a child in the dependency and custody contexts). This Article focuses on the representation of children in the dependency system and in the related context of termination of parental rights proceedings, and includes discussion of representation in the custody context only to the extent the same analysis applies. In my view, the heart of the argument applies equally well in both contexts. The analysis, however, is most compelling for children in the dependency system who generally come into the legal system from a harsher history, face worse options at the bar of the court, are less likely to share their parents' legal interests, and remain involved in the court process for considerably longer. In contrast to the disagreement and confusion about the role children's attorneys should assume in dependency and custody proceedings, the role to be assumed by attorneys representing minors in juvenile justice proceedings (namely, the traditional attorney role) has been clearly established and widely accepted. See Institute of Judicial Administration-American Bar Association, Juvenile Justice Standards, Standards Relating to Counsel for Private Parties Standard 3.1 (1979) [hereinafter IJA-ABA Standards]. For a general review of the history and reasoning leading up to the adoption of these standards, see the introduction to the IJA-ABA Standards.
5. Donald N. Duquette & Sarah H. Ramsey, Representation of Children in Child Abuse and Neglect Cases: An Empirical Look at What Constitutes Effective Representation, 20 U. Mich. J.L. Ref. 341, 346-54 (1987) (noting lack of consensus about the role and responsibilities of a child's attorney in abuse and neglect proceedings); Linda D. Elrod, Counsel for the Child in Custody Disputes: The Time is Now, 26 Fam. L.Q. 53, 57-59 (1992) (discussing the considerable confusion and disagreement about the role a lawyer should assume in representing children in custody matters); Robyn-Marie Lyon, Comment, Speaking for a Child: The Role of Independent Counsel for Minors, 75 Cal. L. Rev. 681, 688-93 (1987) (noting that an absence of definitive articulation of the appropriate role for a child's representative has left each attorney to make her own decision about what role to assume); Sarah H. Ramsey, Representation of the Child in Protection Proceedings: The Determination of Decision Making Capacity, 17 Fam. L.Q. 287, 289-91 (1983) (noting the disagreement among scholars, and lack of guidance in case and statutory law about how to represent children in child protection proceedings); see also Ann M. Haralambie, The Child's Attorney: A Guide to Representing Children in Custody, Adoption, and Protection Cases 2 (1993) (discussing the lack of uniformity in state law about what it means to be appointed to represent a child in the dependency and custody contexts). This Article focuses on the representation of children in the dependency system and in the related context of termination of parental rights proceedings, and includes discussion of representation in the custody context only to the extent the same analysis applies. In my view, the heart of the argument applies equally well in both contexts. The analysis, however, is most compelling for children in the dependency system who generally come into the legal system from a harsher history, face worse options at the bar of the court, are less likely to share their parents' legal interests, and remain involved in the court process for considerably longer. In contrast to the disagreement and confusion about the role children's attorneys should assume in dependency and custody proceedings, the role to be assumed by attorneys representing minors in juvenile justice proceedings (namely, the traditional attorney role) has been clearly established and widely accepted. See Institute of Judicial Administration-American Bar Association, Juvenile Justice Standards, Standards Relating to Counsel for Private Parties Standard 3.1 (1979) [hereinafter IJA-ABA Standards]. For a general review of the history and reasoning leading up to the adoption of these standards, see the introduction to the IJA-ABA Standards.
6. Donald N. Duquette & Sarah H. Ramsey, Representation of Children in Child Abuse and Neglect Cases: An Empirical Look at What Constitutes Effective Representation, 20 U. Mich. J.L. Ref. 341, 346-54 (1987) (noting lack of consensus about the role and responsibilities of a child's attorney in abuse and neglect proceedings); Linda D. Elrod, Counsel for the Child in Custody Disputes: The Time is Now, 26 Fam. L.Q. 53, 57-59 (1992) (discussing the considerable confusion and disagreement about the role a lawyer should assume in representing children in custody matters); Robyn-Marie Lyon, Comment, Speaking for a Child: The Role of Independent Counsel for Minors, 75 Cal. L. Rev. 681, 688-93 (1987) (noting that an absence of definitive articulation of the appropriate role for a child's representative has left each attorney to make her own decision about what role to assume); Sarah H. Ramsey, Representation of the Child in Protection Proceedings: The Determination of Decision Making Capacity, 17 Fam. L.Q. 287, 289-91 (1983) (noting the disagreement among scholars, and lack of guidance in case and statutory law about how to represent children in child protection proceedings); see also Ann M. Haralambie, The Child's Attorney: A Guide to Representing Children in Custody, Adoption, and Protection Cases 2 (1993) (discussing the lack of uniformity in state law about what it means to be appointed to represent a child in the dependency and custody contexts). This Article focuses on the representation of children in the dependency system and in the related context of termination of parental rights proceedings, and includes discussion of representation in the custody context only to the extent the same analysis applies. In my view, the heart of the argument applies equally well in both contexts. The analysis, however, is most compelling for children in the dependency system who generally come into the legal system from a harsher history, face worse options at the bar of the court, are less likely to share their parents' legal interests, and remain involved in the court process for considerably longer. In contrast to the disagreement and confusion about the role children's attorneys should assume in dependency and custody proceedings, the role to be assumed by attorneys representing minors in juvenile justice proceedings (namely, the traditional attorney role) has been clearly established and widely accepted. See Institute of Judicial Administration-American Bar Association, Juvenile Justice Standards, Standards Relating to Counsel for Private Parties Standard 3.1 (1979) [hereinafter IJA-ABA Standards]. For a general review of the history and reasoning leading up to the adoption of these standards, see the introduction to the IJA-ABA Standards.
7. Donald N. Duquette & Sarah H. Ramsey, Representation of Children in Child Abuse and Neglect Cases: An Empirical Look at What Constitutes Effective Representation, 20 U. Mich. J.L. Ref. 341, 346-54 (1987) (noting lack of consensus about the role and responsibilities of a child's attorney in abuse and neglect proceedings); Linda D. Elrod, Counsel for the Child in Custody Disputes: The Time is Now, 26 Fam. L.Q. 53, 57-59 (1992) (discussing the considerable confusion and disagreement about the role a lawyer should assume in representing children in custody matters); Robyn-Marie Lyon, Comment, Speaking for a Child: The Role of Independent Counsel for Minors, 75 Cal. L. Rev. 681, 688-93 (1987) (noting that an absence of definitive articulation of the appropriate role for a child's representative has left each attorney to make her own decision about what role to assume); Sarah H. Ramsey, Representation of the Child in Protection Proceedings: The Determination of Decision Making Capacity, 17 Fam. L.Q. 287, 289-91 (1983) (noting the disagreement among scholars, and lack of guidance in case and statutory law about how to represent children in child protection proceedings); see also Ann M. Haralambie, The Child's Attorney: A Guide to Representing Children in Custody, Adoption, and Protection Cases 2 (1993) (discussing the lack of uniformity in state law about what it means to be appointed to represent a child in the dependency and custody contexts). This Article focuses on the representation of children in the dependency system and in the related context of termination of parental rights proceedings, and includes discussion of representation in the custody context only to the extent the same analysis applies. In my view, the heart of the argument applies equally well in both contexts. The analysis, however, is most compelling for children in the dependency system who generally come into the legal system from a harsher history, face worse options at the bar of the court, are less likely to share their parents' legal interests, and remain involved in the court process for considerably longer. In contrast to the disagreement and confusion about the role children's attorneys should assume in dependency and custody proceedings, the role to be assumed by attorneys representing minors in juvenile justice proceedings (namely, the traditional attorney role) has been clearly established and widely accepted. See Institute of Judicial Administration-American Bar Association, Juvenile Justice Standards, Standards Relating to Counsel for Private Parties Standard 3.1 (1979) [hereinafter IJA-ABA Standards]. For a general review of the history and reasoning leading up to the adoption of these standards, see the introduction to the IJA-ABA Standards.
8. Donald N. Duquette & Sarah H. Ramsey, Representation of Children in Child Abuse and Neglect Cases: An Empirical Look at What Constitutes Effective Representation, 20 U. Mich. J.L. Ref. 341, 346-54 (1987) (noting lack of consensus about the role and responsibilities of a child's attorney in abuse and neglect proceedings); Linda D. Elrod, Counsel for the Child in Custody Disputes: The Time is Now, 26 Fam. L.Q. 53, 57-59 (1992) (discussing the considerable confusion and disagreement about the role a lawyer should assume in representing children in custody matters); Robyn-Marie Lyon, Comment, Speaking for a Child: The Role of Independent Counsel for Minors, 75 Cal. L. Rev. 681, 688-93 (1987) (noting that an absence of definitive articulation of the appropriate role for a child's representative has left each attorney to make her own decision about what role to assume); Sarah H. Ramsey, Representation of the Child in Protection Proceedings: The Determination of Decision Making Capacity, 17 Fam. L.Q. 287, 289-91 (1983) (noting the disagreement among scholars, and lack of guidance in case and statutory law about how to represent children in child protection proceedings); see also Ann M. Haralambie, The Child's Attorney: A Guide to Representing Children in Custody, Adoption, and Protection Cases 2 (1993) (discussing the lack of uniformity in state law about what it means to be appointed to represent a child in the dependency and custody contexts). This Article focuses on the representation of children in the dependency system and in the related context of termination of parental rights proceedings, and includes discussion of representation in the custody context only to the extent the same analysis applies. In my view, the heart of the argument applies equally well in both contexts. The analysis, however, is most compelling for children in the dependency system who generally come into the legal system from a harsher history, face worse options at the bar of the court, are less likely to share their parents' legal interests, and remain involved in the court process for considerably longer. In contrast to the disagreement and confusion about the role children's attorneys should assume in dependency and custody proceedings, the role to be assumed by attorneys representing minors in juvenile justice proceedings (namely, the traditional attorney role) has been clearly established and widely accepted. See Institute of Judicial Administration-American Bar Association, Juvenile Justice Standards, Standards Relating to Counsel for Private Parties Standard 3.1 (1979) [hereinafter IJA-ABA Standards]. For a general review of the history and reasoning leading up to the adoption of these standards, see the introduction to the IJA-ABA Standards.
9. See, e.g., Lyon, supra note 3, at 693-94 (arguing that an attorney's duty to advocate for her client's wishes is no less significant when that client is a child); Wallace J. Mlyniec, The Child Advocate in Private Custody Disputes: A Role in Search of a Standard, 16 J. Fam. L. 1, 16-17 (1977-78) (arguing that following a traditional attorney role "can best preserve the principles of minimal outside intervention into the private family sphere while protecting the child's right . . . to participate in legal matters affecting [his] life"); Shannan L. Wilber, Independent Counsel for Children, 27 Fam L.Q. 349, 349 (1993) (asserting that counsel should advocate the child client's interest if the child can articulate a preference); see generally Martin Guggenheim, The Right to Be Represented but Not Heard: Reflections on Legal Representation for Children, 59 N.Y.U. L. Rev. 76, 85-93 (1984) (endorsing child-directed representation where child is mature enough to be "deemed to be an autonomous individual"); see also Proposed American Bar Association Standards of Practice for Lawyers Who Represent Children in Abuse and Neglect Cases 29 Fam. L.Q. 375, § B-4 (1995) [hereinafter Proposed ABA Standards] (directing the child's attorney to advocate the child's expressed preference unless she believes that the position would be "seriously injurious" to the child's interests).
10. See, e.g., Lyon, supra note 3, at 693-94 (arguing that an attorney's duty to advocate for her client's wishes is no less significant when that client is a child); Wallace J. Mlyniec, The Child Advocate in Private Custody Disputes: A Role in Search of a Standard, 16 J. Fam. L. 1, 16-17 (1977-78) (arguing that following a traditional attorney role "can best preserve the principles of minimal outside intervention into the private family sphere while protecting the child's right . . . to participate in legal matters affecting [his] life"); Shannan L. Wilber, Independent Counsel for Children, 27 Fam L.Q. 349, 349 (1993) (asserting that counsel should advocate the child client's interest if the child can articulate a preference); see generally Martin Guggenheim, The Right to Be Represented but Not Heard: Reflections on Legal Representation for Children, 59 N.Y.U. L. Rev. 76, 85-93 (1984) (endorsing child-directed representation where child is mature enough to be "deemed to be an autonomous individual"); see also Proposed American Bar Association Standards of Practice for Lawyers Who Represent Children in Abuse and Neglect Cases 29 Fam. L.Q. 375, § B-4 (1995) [hereinafter Proposed ABA Standards] (directing the child's attorney to advocate the child's expressed preference unless she believes that the position would be "seriously injurious" to the child's interests).
11. See, e.g., Lyon, supra note 3, at 693-94 (arguing that an attorney's duty to advocate for her client's wishes is no less significant when that client is a child); Wallace J. Mlyniec, The Child Advocate in Private Custody Disputes: A Role in Search of a Standard, 16 J. Fam. L. 1, 16-17 (1977-78) (arguing that following a traditional attorney role "can best preserve the principles of minimal outside intervention into the private family sphere while protecting the child's right . . . to participate in legal matters affecting [his] life"); Shannan L. Wilber, Independent Counsel for Children, 27 Fam L.Q. 349, 349 (1993) (asserting that counsel should advocate the child client's interest if the child can articulate a preference); see generally Martin Guggenheim, The Right to Be Represented but Not Heard: Reflections on Legal Representation for Children, 59 N.Y.U. L. Rev. 76, 85-93 (1984) (endorsing child-directed representation where child is mature enough to be "deemed to be an autonomous individual"); see also Proposed American Bar Association Standards of Practice for Lawyers Who Represent Children in Abuse and Neglect Cases 29 Fam. L.Q. 375, § B-4 (1995) [hereinafter Proposed ABA Standards] (directing the child's attorney to advocate the child's expressed preference unless she believes that the position would be "seriously injurious" to the child's interests).
12. See, e.g., Lyon, supra note 3, at 693-94 (arguing that an attorney's duty to advocate for her client's wishes is no less significant when that client is a child); Wallace J. Mlyniec, The Child Advocate in Private Custody Disputes: A Role in Search of a Standard, 16 J. Fam. L. 1, 16-17 (1977-78) (arguing that following a traditional attorney role "can best preserve the principles of minimal outside intervention into the private family sphere while protecting the child's right . . . to participate in legal matters affecting [his] life"); Shannan L. Wilber, Independent Counsel for Children, 27 Fam L.Q. 349, 349 (1993) (asserting that counsel should advocate the child client's interest if the child can articulate a preference); see generally Martin Guggenheim, The Right to Be Represented but Not Heard: Reflections on Legal Representation for Children, 59 N.Y.U. L. Rev. 76, 85-93 (1984) (endorsing child-directed representation where child is mature enough to be "deemed to be an autonomous individual"); see also Proposed American Bar Association Standards of Practice for Lawyers Who Represent Children in Abuse and Neglect Cases 29 Fam. L.Q. 375, § B-4 (1995) [hereinafter Proposed ABA Standards] (directing the child's attorney to advocate the child's expressed preference unless she believes that the position would be "seriously injurious" to the child's interests).
13. See, e.g., U.S. Dep't of Health and Human Services, Final Report on the Validation and Effectiveness Study of Legal Representation Through Guardian Ad Litem, 5-2 (1995) [hereinafter HHS Study] (recommendations of Technical Expert Group consisting of attorneys, lay advocates, judges, and academicians calling for representation of child's best interests); Brian G. Fraser, Independent Representation for the Abused and Neglected Child: The Guardian Ad Litem, 13 Cal. W. L. Rev. 16, 33-34 (1976) (championing GAL model whose role is to protect the needs and interests of the child). Through the Child Abuse Prevention and Treatment Act ("CAPTA"), Congress has tied certain federal funding to states for child abuse and neglect programs to the provision of "GALs" in all child abuse and neglect proceedings. 42 U.S.C. § 5106a(b)(6) (1988). The role of the GAL is defined in regulations to include "represent[ation] and protect[ion of] the rights and best interests of the child." 45 C.F.R. § 1340.14(g) (1994). Some advocates of the "best interest" model suggest that lay volunteers, rather than attorneys, should fill the GAL role. See Rebecca H. Heartz, Guardians Ad Litem in Child Abuse and Neglect Proceedings: Clarifying the Roles to Improve Effectiveness, 27 Fam. L.Q. 327 (1993).
14. See, e.g., U.S. Dep't of Health and Human Services, Final Report on the Validation and Effectiveness Study of Legal Representation Through Guardian Ad Litem, 5-2 (1995) [hereinafter HHS Study] (recommendations of Technical Expert Group consisting of attorneys, lay advocates, judges, and academicians calling for representation of child's best interests); Brian G. Fraser, Independent Representation for the Abused and Neglected Child: The Guardian Ad Litem, 13 Cal. W. L. Rev. 16, 33-34 (1976) (championing GAL model whose role is to protect the needs and interests of the child). Through the Child Abuse Prevention and Treatment Act ("CAPTA"), Congress has tied certain federal funding to states for child abuse and neglect programs to the provision of "GALs" in all child abuse and neglect proceedings. 42 U.S.C. § 5106a(b)(6) (1988). The role of the GAL is defined in regulations to include "represent[ation] and protect[ion of] the rights and best interests of the child." 45 C.F.R. § 1340.14(g) (1994). Some advocates of the "best interest" model suggest that lay volunteers, rather than attorneys, should fill the GAL role. See Rebecca H. Heartz, Guardians Ad Litem in Child Abuse and Neglect Proceedings: Clarifying the Roles to Improve Effectiveness, 27 Fam. L.Q. 327 (1993).
15. See, e.g., U.S. Dep't of Health and Human Services, Final Report on the Validation and Effectiveness Study of Legal Representation Through Guardian Ad Litem, 5-2 (1995) [hereinafter HHS Study] (recommendations of Technical Expert Group consisting of attorneys, lay advocates, judges, and academicians calling for representation of child's best interests); Brian G. Fraser, Independent Representation for the Abused and Neglected Child: The Guardian Ad Litem, 13 Cal. W. L. Rev. 16, 33-34 (1976) (championing GAL model whose role is to protect the needs and interests of the child). Through the Child Abuse Prevention and Treatment Act ("CAPTA"), Congress has tied certain federal funding to states for child abuse and neglect programs to the provision of "GALs" in all child abuse and neglect proceedings. 42 U.S.C. § 5106a(b)(6) (1988). The role of the GAL is defined in regulations to include "represent[ation] and protect[ion of] the rights and best interests of the child." 45 C.F.R. § 1340.14(g) (1994). Some advocates of the "best interest" model suggest that lay volunteers, rather than attorneys, should fill the GAL role. See Rebecca H. Heartz, Guardians Ad Litem in Child Abuse and Neglect Proceedings: Clarifying the Roles to Improve Effectiveness, 27 Fam. L.Q. 327 (1993).
16. See, e.g., Ramsey, supra note 3, at 307, 336-47 (arguing that attorneys should represent a child's expressed interest where the child possesses the capacity to make a decision which has a reasonable possibility of being correct; otherwise attorneys should represent the child's best interests); Haralambie, supra note 3, at 37 (suggesting that a "hybrid role may be the best framework within which to advocate for children"); Duquette & Ramsey, supra note 3, at 352-53 (promoting the "flexible client-centered approach to representation" used in the authors' study); Kim J. Landsman & Martha L. Minow, Note, Lawyering for the Child: Principles of Representation in Custody and Visitation Disputes Arising from Divorce, 87 Yale L.J. 1126, 1186-87 (1978) (listing principles to guide attorneys in child representation combining elements of both approaches); HHS Study, supra note 5, at 5-24, 5-25 (reporting the recommendation of the Technical Expert Group that the child's representative present both positions to the court, where expressed interests and best interests diverge).
17. See, e.g., Fraser, supra note 5, at 33-34 (calling for the GAL to serve both as fact finder and as the child's best interest advocate).
18. See Haralambie, supra note 3, at 6.
19. See Stanley S. Clawar, Why Children Say What they Say, Fam. Advoc., Fall 1983, at 25, 25, 45 (stating that among other factors, children are motivated by fear, guilt, desire to protect their parents, parental promises of change, and lack of experience with alternatives in determining what to say to lawyers, judges, and other professionals); Haralambie supra note 3, at 6 (noting that children's "wishes may be based on threats, bribes, and other questionable bases"); Nancy W. Perry & Larry L. Teply, Interviewing, Counseling and In-Court Examination of Children: Practical Approaches for Attorneys, 18 Creighton L. Rev. 1369, 1375-86 (1984-85) (suggesting that children's communications with their lawyers are hampered by, among other things, their difficulty in dealing with the emotional and social pressures connected with the proceeding, their feelings of guilt, their difficulty understanding and framing responses to lawyers' questions, and their lack of understanding of the court process); Ramsey, supra note 3, at 318 (observing that the emotional nature of proceedings may interfere with children's decision-making capacity); see also Joseph Goldstein et al., In the Best Interests of the Child 32-33 (1986) (suggesting that, because "'children of all ages have a natural tendency to deceive themselves about their motivations . . . [and] feelings, especially where conflicts of loyalty come into question,'" a child's lawyer may need to seek the assistance of a child development expert to distinguish between the child's expressed preferences and real preferences (quoting Anna Freud, On the Difficulties of Communicating with Children, in The Family and the Law (Joseph Goldstein & J. Katz eds., 1965))). Children, particularly preadolescents, define their moral universe in large part by determining what pleases the important adults in their lives. See Thomas Lickona, Raising Good Children: From Birth Through the Teenage Years 160 (1983). In determining what is "right" to say, therefore, a child will often look to what statements will please his parents, rather than what is objectively true, or what he might independently want a lawyer or judge to hear. See Perry & Teply, supra, at 1374-75.
20. See Stanley S. Clawar, Why Children Say What they Say, Fam. Advoc., Fall 1983, at 25, 25, 45 (stating that among other factors, children are motivated by fear, guilt, desire to protect their parents, parental promises of change, and lack of experience with alternatives in determining what to say to lawyers, judges, and other professionals); Haralambie supra note 3, at 6 (noting that children's "wishes may be based on threats, bribes, and other questionable bases"); Nancy W. Perry & Larry L. Teply, Interviewing, Counseling and In-Court Examination of Children: Practical Approaches for Attorneys, 18 Creighton L. Rev. 1369, 1375-86 (1984-85) (suggesting that children's communications with their lawyers are hampered by, among other things, their difficulty in dealing with the emotional and social pressures connected with the proceeding, their feelings of guilt, their difficulty understanding and framing responses to lawyers' questions, and their lack of understanding of the court process); Ramsey, supra note 3, at 318 (observing that the emotional nature of proceedings may interfere with children's decision-making capacity); see also Joseph Goldstein et al., In the Best Interests of the Child 32-33 (1986) (suggesting that, because "'children of all ages have a natural tendency to deceive themselves about their motivations . . . [and] feelings, especially where conflicts of loyalty come into question,'" a child's lawyer may need to seek the assistance of a child development expert to distinguish between the child's expressed preferences and real preferences (quoting Anna Freud, On the Difficulties of Communicating with Children, in The Family and the Law (Joseph Goldstein & J. Katz eds., 1965))). Children, particularly preadolescents, define their moral universe in large part by determining what pleases the important adults in their lives. See Thomas Lickona, Raising Good Children: From Birth Through the Teenage Years 160 (1983). In determining what is "right" to say, therefore, a child will often look to what statements will please his parents, rather than what is objectively true, or what he might independently want a lawyer or judge to hear. See Perry & Teply, supra, at 1374-75.
21. See Stanley S. Clawar, Why Children Say What they Say, Fam. Advoc., Fall 1983, at 25, 25, 45 (stating that among other factors, children are motivated by fear, guilt, desire to protect their parents, parental promises of change, and lack of experience with alternatives in determining what to say to lawyers, judges, and other professionals); Haralambie supra note 3, at 6 (noting that children's "wishes may be based on threats, bribes, and other questionable bases"); Nancy W. Perry & Larry L. Teply, Interviewing, Counseling and In-Court Examination of Children: Practical Approaches for Attorneys, 18 Creighton L. Rev. 1369, 1375-86 (1984-85) (suggesting that children's communications with their lawyers are hampered by, among other things, their difficulty in dealing with the emotional and social pressures connected with the proceeding, their feelings of guilt, their difficulty understanding and framing responses to lawyers' questions, and their lack of understanding of the court process); Ramsey, supra note 3, at 318 (observing that the emotional nature of proceedings may interfere with children's decision-making capacity); see also Joseph Goldstein et al., In the Best Interests of the Child 32-33 (1986) (suggesting that, because "'children of all ages have a natural tendency to deceive themselves about their motivations . . . [and] feelings, especially where conflicts of loyalty come into question,'" a child's lawyer may need to seek the assistance of a child development expert to distinguish between the child's expressed preferences and real preferences (quoting Anna Freud, On the Difficulties of Communicating with Children, in The Family and the Law (Joseph Goldstein & J. Katz eds., 1965))). Children, particularly preadolescents, define their moral universe in large part by determining what pleases the important adults in their lives. See Thomas Lickona, Raising Good Children: From Birth Through the Teenage Years 160 (1983). In determining what is "right" to say, therefore, a child will often look to what statements will please his parents, rather than what is objectively true, or what he might independently want a lawyer or judge to hear. See Perry & Teply, supra, at 1374-75.
22. See Stanley S. Clawar, Why Children Say What they Say, Fam. Advoc., Fall 1983, at 25, 25, 45 (stating that among other factors, children are motivated by fear, guilt, desire to protect their parents, parental promises of change, and lack of experience with alternatives in determining what to say to lawyers, judges, and other professionals); Haralambie supra note 3, at 6 (noting that children's "wishes may be based on threats, bribes, and other questionable bases"); Nancy W. Perry & Larry L. Teply, Interviewing, Counseling and In-Court Examination of Children: Practical Approaches for Attorneys, 18 Creighton L. Rev. 1369, 1375-86 (1984-85) (suggesting that children's communications with their lawyers are hampered by, among other things, their difficulty in dealing with the emotional and social pressures connected with the proceeding, their feelings of guilt, their difficulty understanding and framing responses to lawyers' questions, and their lack of understanding of the court process); Ramsey, supra note 3, at 318 (observing that the emotional nature of proceedings may interfere with children's decision-making capacity); see also Joseph Goldstein et al., In the Best Interests of the Child 32-33 (1986) (suggesting that, because "'children of all ages have a natural tendency to deceive themselves about their motivations . . . [and] feelings, especially where conflicts of loyalty come into question,'" a child's lawyer may need to seek the assistance of a child development expert to distinguish between the child's expressed preferences and real preferences (quoting Anna Freud, On the Difficulties of Communicating with Children, in The Family and the Law (Joseph Goldstein & J. Katz eds., 1965))). Children, particularly preadolescents, define their moral universe in large part by determining what pleases the important adults in their lives. See Thomas Lickona, Raising Good Children: From Birth Through the Teenage Years 160 (1983). In determining what is "right" to say, therefore, a child will often look to what statements will please his parents, rather than what is objectively true, or what he might independently want a lawyer or judge to hear. See Perry & Teply, supra, at 1374-75.
23. See Stanley S. Clawar, Why Children Say What they Say, Fam. Advoc., Fall 1983, at 25, 25, 45 (stating that among other factors, children are motivated by fear, guilt, desire to protect their parents, parental promises of change, and lack of experience with alternatives in determining what to say to lawyers, judges, and other professionals); Haralambie supra note 3, at 6 (noting that children's "wishes may be based on threats, bribes, and other questionable bases"); Nancy W. Perry & Larry L. Teply, Interviewing, Counseling and In-Court Examination of Children: Practical Approaches for Attorneys, 18 Creighton L. Rev. 1369, 1375-86 (1984-85) (suggesting that children's communications with their lawyers are hampered by, among other things, their difficulty in dealing with the emotional and social pressures connected with the proceeding, their feelings of guilt, their difficulty understanding and framing responses to lawyers' questions, and their lack of understanding of the court process); Ramsey, supra note 3, at 318 (observing that the emotional nature of proceedings may interfere with children's decision-making capacity); see also Joseph Goldstein et al., In the Best Interests of the Child 32-33 (1986) (suggesting that, because "'children of all ages have a natural tendency to deceive themselves about their motivations . . . [and] feelings, especially where conflicts of loyalty come into question,'" a child's lawyer may need to seek the assistance of a child development expert to distinguish between the child's expressed preferences and real preferences (quoting Anna Freud, On the Difficulties of Communicating with Children, in The Family and the Law (Joseph Goldstein & J. Katz eds., 1965))). Children, particularly preadolescents, define their moral universe in large part by determining what pleases the important adults in their lives. See Thomas Lickona, Raising Good Children: From Birth Through the Teenage Years 160 (1983). In determining what is "right" to say, therefore, a child will often look to what statements will please his parents, rather than what is objectively true, or what he might independently want a lawyer or judge to hear. See Perry & Teply, supra, at 1374-75.
24. See Haralambie, supra note 3, at 6 (noting that the GAL role "serves to . . . buffer the child from responsibility for the decision ultimately made"); Mlyniec, supra note 4, at 13-14 (observing that asking children to choose between parents creates anxiety, which may, in turn, reduce the accuracy of what is said); Landsman & Minow, supra note 6, at 1165 (asserting that "[p]sychology and moral theory both warn the attorney not to force participation on the child" who may have good reasons for choosing not to get directly involved in choosing between parents); see also Gary B. Melton, Decision Making by Children: Psychological Risks and Benefits, in Children's Competence to Consent 21, 35 (Gary B. Melton et al. eds., 1983) (stating that the necessity of making choices can be anxiety-provoking for children).
25. See Ramsey, supra note 3, at 292.
26. Guggenheim, supra note 4, at 91-92 (noting that a child old enough to engage in meaningful decision making should be afforded the same rights as an adult to direct counsel and to make his views known to the court); see also Ramsey, supra note 3, at 297-98 (arguing that including the child's view in the adversarial process increases the chance of a good decision, not necessarily because the child's view is correct, but because it requires a response from the other parties).
27. Katherine Hunt Federle, The Ethics of Empowerment: Rethinking the Role of Lawyers in Interviewing and Counseling the Child Client, 64 Fordham L. Rev. 1655, 1695 (1996) (suggesting that client empowerment should be a central value of the lawyering role assumed); Haralambie, supra note 3, at 33 (noting that a "child may benefit emotionally from being heard"); Mlyniec, supra note 4, at 16 (stating that by serving as a traditional attorney, the lawyer for a child in a custody proceeding protects the child's right to participate in matters affecting his life); Ramsey, supra note 3, at 295 (arguing that a child has an interest in being respected and included as an autonomous individual); see also Janet A. Chaplan, Youth Perspectives on Lawyers' Ethics: A Report of Seven Interviews 64 Fordham L. Rev. 1763, 1769 (1996) (quoting a statement by 18-year-old Jonah who grew up in foster care that if foster children were given more chance to make their own decisions, it would "make them feel strong inside, feel like they can be confident"). Some scholars suggest that this emphasis on client empowerment fails to take account of the disempowering, silencing effect the legal process, and particularly legal representation, can have on clients who are (as children are) less powerful than their lawyers. See, e.g., Anthony V. Alfieri, Reconstructive Poverty Law Practice: Learning Lessons of Client Narrative, 100 Yale L.J. 2107, 2111 (1991) (describing how client narratives, and the messages communicated by those narratives, are displaced by "poverty lawyers' traditional interpretive practices of marginalization, subordination, and discipline"); Lucie E. White, Seeking ". . .The Faces of otherness. . .": A Response to Professors Sarat, Felstiner and Cahn, 77 Cornell L. Rev. 1499, 1507 (1992) (noting that "nam[ing] the feelings of [a] less powerful other[ ] . . . is also to silence her voice"); Lucie E. White, Goldberg v. Kelly on the Paradox of Lawyering for the Poor, 56 Brook. L. Rev. 861, 861 (1990) [hereinafter White, The Paradox of Lawyering] ("Because advocacy is a practice of speaking for - of presuming and thereby prescribing the silence of the other - the advocate . . . inevitably replays the drama of subordination in her own work."). These and other scholars raise important questions about how, under the traditional attorney model, a child's lawyer can effectively give her client her own voice in the legal proceedings. While a thorough consideration of these questions goes beyond the scope of this Article, it is important to note that this criticism of how lawyers represent less powerful clients stresses the need for greater client direction and control. See, e.g., id. at 887. Rather than arguing against the traditional attorney model's emphasis on client control, these scholars challenge lawyers assuming the traditional attorney role to be truer to this role.
28. Katherine Hunt Federle, The Ethics of Empowerment: Rethinking the Role of Lawyers in Interviewing and Counseling the Child Client, 64 Fordham L. Rev. 1655, 1695 (1996) (suggesting that client empowerment should be a central value of the lawyering role assumed); Haralambie, supra note 3, at 33 (noting that a "child may benefit emotionally from being heard"); Mlyniec, supra note 4, at 16 (stating that by serving as a traditional attorney, the lawyer for a child in a custody proceeding protects the child's right to participate in matters affecting his life); Ramsey, supra note 3, at 295 (arguing that a child has an interest in being respected and included as an autonomous individual); see also Janet A. Chaplan, Youth Perspectives on Lawyers' Ethics: A Report of Seven Interviews 64 Fordham L. Rev. 1763, 1769 (1996) (quoting a statement by 18-year-old Jonah who grew up in foster care that if foster children were given more chance to make their own decisions, it would "make them feel strong inside, feel like they can be confident"). Some scholars suggest that this emphasis on client empowerment fails to take account of the disempowering, silencing effect the legal process, and particularly legal representation, can have on clients who are (as children are) less powerful than their lawyers. See, e.g., Anthony V. Alfieri, Reconstructive Poverty Law Practice: Learning Lessons of Client Narrative, 100 Yale L.J. 2107, 2111 (1991) (describing how client narratives, and the messages communicated by those narratives, are displaced by "poverty lawyers' traditional interpretive practices of marginalization, subordination, and discipline"); Lucie E. White, Seeking ". . .The Faces of otherness. . .": A Response to Professors Sarat, Felstiner and Cahn, 77 Cornell L. Rev. 1499, 1507 (1992) (noting that "nam[ing] the feelings of [a] less powerful other[ ] . . . is also to silence her voice"); Lucie E. White, Goldberg v. Kelly on the Paradox of Lawyering for the Poor, 56 Brook. L. Rev. 861, 861 (1990) [hereinafter White, The Paradox of Lawyering] ("Because advocacy is a practice of speaking for - of presuming and thereby prescribing the silence of the other - the advocate . . . inevitably replays the drama of subordination in her own work."). These and other scholars raise important questions about how, under the traditional attorney model, a child's lawyer can effectively give her client her own voice in the legal proceedings. While a thorough consideration of these questions goes beyond the scope of this Article, it is important to note that this criticism of how lawyers represent less powerful clients stresses the need for greater client direction and control. See, e.g., id. at 887. Rather than arguing against the traditional attorney model's emphasis on client control, these scholars challenge lawyers assuming the traditional attorney role to be truer to this role.
29. Katherine Hunt Federle, The Ethics of Empowerment: Rethinking the Role of Lawyers in Interviewing and Counseling the Child Client, 64 Fordham L. Rev. 1655, 1695 (1996) (suggesting that client empowerment should be a central value of the lawyering role assumed); Haralambie, supra note 3, at 33 (noting that a "child may benefit emotionally from being heard"); Mlyniec, supra note 4, at 16 (stating that by serving as a traditional attorney, the lawyer for a child in a custody proceeding protects the child's right to participate in matters affecting his life); Ramsey, supra note 3, at 295 (arguing that a child has an interest in being respected and included as an autonomous individual); see also Janet A. Chaplan, Youth Perspectives on Lawyers' Ethics: A Report of Seven Interviews 64 Fordham L. Rev. 1763, 1769 (1996) (quoting a statement by 18-year-old Jonah who grew up in foster care that if foster children were given more chance to make their own decisions, it would "make them feel strong inside, feel like they can be confident"). Some scholars suggest that this emphasis on client empowerment fails to take account of the disempowering, silencing effect the legal process, and particularly legal representation, can have on clients who are (as children are) less powerful than their lawyers. See, e.g., Anthony V. Alfieri, Reconstructive Poverty Law Practice: Learning Lessons of Client Narrative, 100 Yale L.J. 2107, 2111 (1991) (describing how client narratives, and the messages communicated by those narratives, are displaced by "poverty lawyers' traditional interpretive practices of marginalization, subordination, and discipline"); Lucie E. White, Seeking ". . .The Faces of otherness. . .": A Response to Professors Sarat, Felstiner and Cahn, 77 Cornell L. Rev. 1499, 1507 (1992) (noting that "nam[ing] the feelings of [a] less powerful other[ ] . . . is also to silence her voice"); Lucie E. White, Goldberg v. Kelly on the Paradox of Lawyering for the Poor, 56 Brook. L. Rev. 861, 861 (1990) [hereinafter White, The Paradox of Lawyering] ("Because advocacy is a practice of speaking for - of presuming and thereby prescribing the silence of the other - the advocate . . . inevitably replays the drama of subordination in her own work."). These and other scholars raise important questions about how, under the traditional attorney model, a child's lawyer can effectively give her client her own voice in the legal proceedings. While a thorough consideration of these questions goes beyond the scope of this Article, it is important to note that this criticism of how lawyers represent less powerful clients stresses the need for greater client direction and control. See, e.g., id. at 887. Rather than arguing against the traditional attorney model's emphasis on client control, these scholars challenge lawyers assuming the traditional attorney role to be truer to this role.
30. Katherine Hunt Federle, The Ethics of Empowerment: Rethinking the Role of Lawyers in Interviewing and Counseling the Child Client, 64 Fordham L. Rev. 1655, 1695 (1996) (suggesting that client empowerment should be a central value of the lawyering role assumed); Haralambie, supra note 3, at 33 (noting that a "child may benefit emotionally from being heard"); Mlyniec, supra note 4, at 16 (stating that by serving as a traditional attorney, the lawyer for a child in a custody proceeding protects the child's right to participate in matters affecting his life); Ramsey, supra note 3, at 295 (arguing that a child has an interest in being respected and included as an autonomous individual); see also Janet A. Chaplan, Youth Perspectives on Lawyers' Ethics: A Report of Seven Interviews 64 Fordham L. Rev. 1763, 1769 (1996) (quoting a statement by 18-year-old Jonah who grew up in foster care that if foster children were given more chance to make their own decisions, it would "make them feel strong inside, feel like they can be confident"). Some scholars suggest that this emphasis on client empowerment fails to take account of the disempowering, silencing effect the legal process, and particularly legal representation, can have on clients who are (as children are) less powerful than their lawyers. See, e.g., Anthony V. Alfieri, Reconstructive Poverty Law Practice: Learning Lessons of Client Narrative, 100 Yale L.J. 2107, 2111 (1991) (describing how client narratives, and the messages communicated by those narratives, are displaced by "poverty lawyers' traditional interpretive practices of marginalization, subordination, and discipline"); Lucie E. White, Seeking ". . .The Faces of otherness. . .": A Response to Professors Sarat, Felstiner and Cahn, 77 Cornell L. Rev. 1499, 1507 (1992) (noting that "nam[ing] the feelings of [a] less powerful other[ ] . . . is also to silence her voice"); Lucie E. White, Goldberg v. Kelly on the Paradox of Lawyering for the Poor, 56 Brook. L. Rev. 861, 861 (1990) [hereinafter White, The Paradox of Lawyering] ("Because advocacy is a practice of speaking for - of presuming and thereby prescribing the silence of the other - the advocate . . . inevitably replays the drama of subordination in her own work."). These and other scholars raise important questions about how, under the traditional attorney model, a child's lawyer can effectively give her client her own voice in the legal proceedings. While a thorough consideration of these questions goes beyond the scope of this Article, it is important to note that this criticism of how lawyers represent less powerful clients stresses the need for greater client direction and control. See, e.g., id. at 887. Rather than arguing against the traditional attorney model's emphasis on client control, these scholars challenge lawyers assuming the traditional attorney role to be truer to this role.
31. Katherine Hunt Federle, The Ethics of Empowerment: Rethinking the Role of Lawyers in Interviewing and Counseling the Child Client, 64 Fordham L. Rev. 1655, 1695 (1996) (suggesting that client empowerment should be a central value of the lawyering role assumed); Haralambie, supra note 3, at 33 (noting that a "child may benefit emotionally from being heard"); Mlyniec, supra note 4, at 16 (stating that by serving as a traditional attorney, the lawyer for a child in a custody proceeding protects the child's right to participate in matters affecting his life); Ramsey, supra note 3, at 295 (arguing that a child has an interest in being respected and included as an autonomous individual); see also Janet A. Chaplan, Youth Perspectives on Lawyers' Ethics: A Report of Seven Interviews 64 Fordham L. Rev. 1763, 1769 (1996) (quoting a statement by 18-year-old Jonah who grew up in foster care that if foster children were given more chance to make their own decisions, it would "make them feel strong inside, feel like they can be confident"). Some scholars suggest that this emphasis on client empowerment fails to take account of the disempowering, silencing effect the legal process, and particularly legal representation, can have on clients who are (as children are) less powerful than their lawyers. See, e.g., Anthony V. Alfieri, Reconstructive Poverty Law Practice: Learning Lessons of Client Narrative, 100 Yale L.J. 2107, 2111 (1991) (describing how client narratives, and the messages communicated by those narratives, are displaced by "poverty lawyers' traditional interpretive practices of marginalization, subordination, and discipline"); Lucie E. White, Seeking ". . .The Faces of otherness. . .": A Response to Professors Sarat, Felstiner and Cahn, 77 Cornell L. Rev. 1499, 1507 (1992) (noting that "nam[ing] the feelings of [a] less powerful other[ ] . . . is also to silence her voice"); Lucie E. White, Goldberg v. Kelly on the Paradox of Lawyering for the Poor, 56 Brook. L. Rev. 861, 861 (1990) [hereinafter White, The Paradox of Lawyering] ("Because advocacy is a practice of speaking for - of presuming and thereby prescribing the silence of the other - the advocate . . . inevitably replays the drama of subordination in her own work."). These and other scholars raise important questions about how, under the traditional attorney model, a child's lawyer can effectively give her client her own voice in the legal proceedings. While a thorough consideration of these questions goes beyond the scope of this Article, it is important to note that this criticism of how lawyers represent less powerful clients stresses the need for greater client direction and control. See, e.g., id. at 887. Rather than arguing against the traditional attorney model's emphasis on client control, these scholars challenge lawyers assuming the traditional attorney role to be truer to this role.
32. See Ramsey, supra note 3, at 297; see also Douglas J. Besharov, Representing Abused and Neglected Children: When Protecting Children Means Seeking the Dismissal of Court Proceedings, 20 J. Fam. L. 217, 234 (1981-82) (noting that a child's view that an abuse case against a parent should be dismissed may be the "right" decision).
33. See Haralambie, supra note 3, at 32; Perry & Teply, supra note 9, at 1425 (observing that decisions made by children are more likely to be stable and long-lasting).
34. See Guggenheim, supra note 4, at 99 (commenting that "it is unlikely that the attorney will be able to resolve effectively the often complex and value-laden issue of what is best for the child"); see also Haralambie, supra note 3, at 6, 29 (noting that lawyers gain no special expertise about what is in children's best interest through their legal training or experience).
35. See Haralambie, supra note 3, at 31-32 (suggesting that the age of the child should be a relevant factor in determining how involved the child should be in the decision-making process); Lyon, supra note 3, at 699 (noting that child's decision-making competency may vary with the issue); Ramsey, supra note 3, at 310 (same).
36. See, e.g., Guggenheim, supra note 4, at 93-94 (stating that a child must have, not only the linguistic ability to direct his lawyer, but also the capacity to make considered and intelligent choices); Lyon, supra note 3, at 693 (advocating individualized assessment of capacity by the judge, focused on whether the child can "comprehend the circumstances of the case, the crucial issues, and the probable consequences of the available positions on those issues"); Wilber, supra note 4, at 349 (advocating individualized assessment of capacity by the lawyer, focused on whether the particular child is able to "articulate a reasoned preference"). Many advocates of this model draw the line at seven years of age as a crude measure of decision-making capacity. See Guggenheim, supra note 4, at 78 n.4 (suggesting seven as a possible dividing line between those who can direct their counsel and those who cannot); Ramsey, supra note 3, at 316, 320 (suggesting rebuttable presumption that children seven and older have the capacity to make reasoned decisions). By seven years of age, most children have acquired the capacity for rational thinking, or, in Piagetian terms, have reached the stage of "concrete operations." See Jean Piaget & Barbel Inhelder, The Psychology of the Child 92 (1969). For children who fall below a designated age or developmental status, most lawyers favoring the traditional attorney model adopt some form of GAL approach. See, e.g., Wilber, supra note 4, at 349 (advocating "substituted judgment" approach); Lyon, supra note 3, at 701-05 (same). But see Guggenheim, supra note 4, at 78 (calling into question whether children who are too young to guide counsel intelligently should be appointed counsel at all).
37. See Donald N. Duquette, Advocating for the Child in Protection Proceedings: A Handbook for Lawyers and Court Appointed Special Advocates 32, 150 (1990) (proposing legislation that would require lawyers representing children ages 14 and above to advocate their expressed interests and would direct lawyers for children under 14 to make a case-by-case determination of actual decision-making capacity); cf. Stephen B. Billick, Developmental Competence, 14 Bull. Am. Acad. Psychiatry & L. 301, 306-07 (1986) (concluding that by age 14, children have developmental competence to take positions on their own behalf in legal proceedings, and suggesting a sliding scale of involvement for children between the ages of seven and 14).
38. See Donald N. Duquette, Advocating for the Child in Protection Proceedings: A Handbook for Lawyers and Court Appointed Special Advocates 32, 150 (1990) (proposing legislation that would require lawyers representing children ages 14 and above to advocate their expressed interests and would direct lawyers for children under 14 to make a case-by-case determination of actual decision-making capacity); cf. Stephen B. Billick, Developmental Competence, 14 Bull. Am. Acad. Psychiatry & L. 301, 306-07 (1986) (concluding that by age 14, children have developmental competence to take positions on their own behalf in legal proceedings, and suggesting a sliding scale of involvement for children between the ages of seven and 14).
39. One exception is Perry and Teply's article, supra note 9, at 1376 (acknowledging children's difficulty understanding their lawyer's role, and the effect this difficulty has on a lawyer's ability to communicate with her child clients); id. at 1378 (citing Thomas Grisso & Thomas Lovinguth, Lawyers and Child Clients: A Call for Research, in The Rights of Children: Legal and
40. One exception is Perry and Teply's article, supra note 9, at 1376 (acknowledging children's difficulty understanding their lawyer's role, and the effect this difficulty has on a lawyer's ability to communicate with her child clients); id. at 1378 (citing Thomas Grisso & Thomas Lovinguth, Lawyers and Child Clients: A Call for Research, in The Rights of Children: Legal and Psychological Perspectives 215, 216 (J. Henning ed., 1982)).
41. A recent survey of children's representatives (attorneys and lay volunteers) in 23 counties throughout the United States revealed that their clients rarely spoke in court. While the survey data does not indicate whether the children, who did not speak, were nevertheless present, it does suggest the limited involvement these children have in their own court proceedings. HHS Study, supra note 5, at 5-26. Cf. National Council of Juvenile and Family Court Judges, Resource Guidelines: Improving Court Practice in Child Abuse & Neglect Cases 33-35 (1995) [hereinafter NCJFCJ Resource Guidelines] (listing parents, attorneys, relatives with custodial interests, and court personnel among those "who should always be present" at court hearings; but listing children, for most hearings, only among those "whose presence may also be needed").
42. Many commentators advise children's attorneys to consult with them in a child-friendly setting. See, e.g., Haralambie, supra note 3, at 68 (urging lawyers to take their clients for ice cream rather than speaking to them in their offices). While these settings may serve the important function of putting the child at ease, they will, if anything, make it harder for the child to discern the lawyer's role. By distancing the client from the relevant context, the ice cream-buying lawyer may make it harder for the child to understand what else (other than treating him to ice cream) the lawyer does on his behalf.
43. See Chaplan, supra note 13, at 1771 (discussing an interview with a child who admitted that, when she first met her lawyer at the age of ten, she assumed the lawyer represented her mother).
44. The child's lack of context and relevant knowledge that could be brought to bear in interpreting the appointment of counsel in a dependency or custody proceeding contrasts starkly with the information available to a child appointed counsel in the juvenile justice system. In that system, children are much more aware of the court process, both because they tend to be older, and because they are expected to appear at court proceedings. Moreover, if a child is charged with a crime, and brought before a tribunal that functions, in many respects, like an adult criminal court, see In re Gault, 387 U.S. 1 (1967), counsel for the accused is a widely familiar figure whose role is frequently reinforced in movies and on television. And, unlike children's attorneys in custody and dependency proceedings, the attorney's role in the juvenile justice system - that of defending the child client as zealously as if he were an adult - is well defined and understood. See supra note 3. This is not to say that children in the delinquency system are never confused about their lawyers' roles. In a study conducted by Thomas Grisso in 1981, children were found to be roughly three times as likely as adults to believe that their lawyer would stop advocating on their behalf if they admitted their guilt to the lawyer. See Thomas Grisso, Juveniles' Consent in Delinquency Proceedings, in Children's Competence to Consent 131, 143 (Gary B. Melton et al. eds., 1983).
45. The child's lack of context and relevant knowledge that could be brought to bear in interpreting the appointment of counsel in a dependency or custody proceeding contrasts starkly with the information available to a child appointed counsel in the juvenile justice system. In that system, children are much more aware of the court process, both because they tend to be older, and because they are expected to appear at court proceedings. Moreover, if a child is charged with a crime, and brought before a tribunal that functions, in many respects, like an adult criminal court, see In re Gault, 387 U.S. 1 (1967), counsel for the accused is a widely familiar figure whose role is frequently reinforced in movies and on television. And, unlike children's attorneys in custody and dependency proceedings, the attorney's role in the juvenile justice system - that of defending the child client as zealously as if he were an adult - is well defined and understood. See supra note 3. This is not to say that children in the delinquency system are never confused about their lawyers' roles. In a study conducted by Thomas Grisso in 1981, children were found to be roughly three times as likely as adults to believe that their lawyer would stop advocating on their behalf if they admitted their guilt to the lawyer. See Thomas Grisso, Juveniles' Consent in Delinquency Proceedings, in Children's Competence to Consent 131, 143 (Gary B. Melton et al. eds., 1983).
46. Cf. Perry & Teply, supra note 9, at 1375-76 (attributing children's reluctance to communicate effectively with their lawyers, in part, to the fact that children are involuntary participants in the legal process). Children are not only involuntary participants in the judicial system generally, but also in their relationship with their particular lawyer, who is assigned to them, and usually cannot be changed. This contrasts with adults' selection of their lawyers. Even where lawyers are appointed by the court, adults generally can, under certain circumstances, request a different appointment.
47. Needless to say, if lawyers are not conscientious, the problem of role confusion will be even worse. In its recent study, HHS found that children's representatives had no contact with their clients in 16.4% of the cases where they represented children ages 5-12, and in 11.5% of the cases where they represented teenagers. HHS Study, supra note 5, at 5-6; see also Chaplan, supra note 13, at 1775-77 (discussing an interview with a young adult who could not remember his dependency lawyer at all, although he remembered, with dissatisfaction, the lawyer who represented him in the juvenile justice system).
48. See Roy T. Stuckey, Guardians Ad Litem As Surrogate Parents: Implications for Role Definition and Confidentiality, 64 Fordham L. Rev. 1785, 1792 (1996) (noting that it is "natural and probably necessary for guardians ad litem to encourage children to confide in them," but "doubtful . . . that many guardians ad litem warn their wards that their secrets might be disclosed") _.
49. Written materials discussing the best interest model demonstrate this phenomena. For example, the HHS Study, supra note 5, at 5-1, 5-2, 5-16, advocates the use of a best interest model, but describes representation under this model in the following terms: "The GAL is the child's voice in the court room, giving air to the interests and concerns of the child and protecting the child's rights throughout the court proceedings." Id. at 5-16. For another example, see the brochure produced by The National Court Appointed Special Advocate Association (on file with Fordham Law Review), which promotes a best interest model of lay representation under the heading "Speak Up for a Child," and under the motto "A Child's Voice in Court."
50. The story of the child who mistook his lawyer's husband, sitting in his living room, for the judge who would hear his case, illustrates the point.
51. Gerald P. Koocher explains that a significant part of children's socialization is learning to do what older, bigger, and more powerful people tell them to do: "Many children quite literally regard their rights as those entitlements that adults permit them to exercise." Gerald P. Koocher, Children Under the Law: The Paradigm of Consent, in Reforming the Law: Impact of Child Development Research 3, 10 (Gary B. Melton ed., 1987) (citation omitted). In an earlier publication, Koocher wrote that "[c]hildren are not socialized to think in terms of their own rights. Generally, they are unlikely to perceive themselves as having decision-making authority, regardless of . . . 'objective reality.'" Gerald P. Koocher, Competence to Consent: Psychotherapy, in Children's Competence to Consent 111, 112-13 (Gary B. Melton et al. eds., 1983); see Thomas Grisso & Linda Vierling, Minors' Consent to Treatment: A Developmental Perspective, Prof. Psychol. 412, 419 (1978) (children under the ages of 12 or 13 have been shown to be significantly more prone to perceive the locus of control over their lives as external, which creates a tendency to resign themselves passively to their fate); Melton, supra note 10, at 36 (noting that a sense of autonomy is not easily engendered in children when they have experienced very little opportunity to make choices). Children's perceptions of their powerlessness are likely to be exacerbated by issues of race and class. In a study of elementary school-aged children who were given the authority to make certain health care decisions for themselves, Charles Lewis found that upper-middle class, white students were more likely to perceive the shift in decision-making authority than their low-income, minority counterparts, whose life experiences may have made them less inclined to believe that professed power shifts were, in fact, real. See Charles E. Lewis, Decision Making Related to Health: When Could/Should Children Act Responsibly?, in Children's Competence to Consent 75, 84 (Gary B. Melton et al. eds., 1983). Perry and Teply point out that not only do children have difficulty assuming an "active 'client' role" (instead of remaining in the "natural 'child' role") but also their lawyers have difficulty abandoning the "parent" role for that of counselor. Perry & Teply supra note 9, at 1379. As a result of these two combined tendencies, children remain passive, "listen[ing] and obey[ing] rather than retaining their independence, viewing the attorney as one who works for them, and considering themselves as 'equals,' as would an adult." Id. (footnote omitted).
52. Gerald P. Koocher explains that a significant part of children's socialization is learning to do what older, bigger, and more powerful people tell them to do: "Many children quite literally regard their rights as those entitlements that adults permit them to exercise." Gerald P. Koocher, Children Under the Law: The Paradigm of Consent, in Reforming the Law: Impact of Child Development Research 3, 10 (Gary B. Melton ed., 1987) (citation omitted). In an earlier publication, Koocher wrote that "[c]hildren are not socialized to think in terms of their own rights. Generally, they are unlikely to perceive themselves as having decision-making authority, regardless of . . . 'objective reality.'" Gerald P. Koocher, Competence to Consent: Psychotherapy, in Children's Competence to Consent 111, 112-13 (Gary B. Melton et al. eds., 1983); see Thomas Grisso & Linda Vierling, Minors' Consent to Treatment: A Developmental Perspective, Prof. Psychol. 412, 419 (1978) (children under the ages of 12 or 13 have been shown to be significantly more prone to perceive the locus of control over their lives as external, which creates a tendency to resign themselves passively to their fate); Melton, supra note 10, at 36 (noting that a sense of autonomy is not easily engendered in children when they have experienced very little opportunity to make choices). Children's perceptions of their powerlessness are likely to be exacerbated by issues of race and class. In a study of elementary school-aged children who were given the authority to make certain health care decisions for themselves, Charles Lewis found that upper-middle class, white students were more likely to perceive the shift in decision-making authority than their low-income, minority counterparts, whose life experiences may have made them less inclined to believe that professed power shifts were, in fact, real. See Charles E. Lewis, Decision Making Related to Health: When Could/Should Children Act Responsibly?, in Children's Competence to Consent 75, 84 (Gary B. Melton et al. eds., 1983). Perry and Teply point out that not only do children have difficulty assuming an "active 'client' role" (instead of remaining in the "natural 'child' role") but also their lawyers have difficulty abandoning the "parent" role for that of counselor. Perry & Teply supra note 9, at 1379. As a result of these two combined tendencies, children remain passive, "listen[ing] and obey[ing] rather than retaining their independence, viewing the attorney as one who works for them, and considering themselves as 'equals,' as would an adult." Id. (footnote omitted).
53. Gerald P. Koocher explains that a significant part of children's socialization is learning to do what older, bigger, and more powerful people tell them to do: "Many children quite literally regard their rights as those entitlements that adults permit them to exercise." Gerald P. Koocher, Children Under the Law: The Paradigm of Consent, in Reforming the Law: Impact of Child Development Research 3, 10 (Gary B. Melton ed., 1987) (citation omitted). In an earlier publication, Koocher wrote that "[c]hildren are not socialized to think in terms of their own rights. Generally, they are unlikely to perceive themselves as having decision-making authority, regardless of . . . 'objective reality.'" Gerald P. Koocher, Competence to Consent: Psychotherapy, in Children's Competence to Consent 111, 112-13 (Gary B. Melton et al. eds., 1983); see Thomas Grisso & Linda Vierling, Minors' Consent to Treatment: A Developmental Perspective, Prof. Psychol. 412, 419 (1978) (children under the ages of 12 or 13 have been shown to be significantly more prone to perceive the locus of control over their lives as external, which creates a tendency to resign themselves passively to their fate); Melton, supra note 10, at 36 (noting that a sense of autonomy is not easily engendered in children when they have experienced very little opportunity to make choices). Children's perceptions of their powerlessness are likely to be exacerbated by issues of race and class. In a study of elementary school-aged children who were given the authority to make certain health care decisions for themselves, Charles Lewis found that upper-middle class, white students were more likely to perceive the shift in decision-making authority than their low-income, minority counterparts, whose life experiences may have made them less inclined to believe that professed power shifts were, in fact, real. See Charles E. Lewis, Decision Making Related to Health: When Could/Should Children Act Responsibly?, in Children's Competence to Consent 75, 84 (Gary B. Melton et al. eds., 1983). Perry and Teply point out that not only do children have difficulty assuming an "active 'client' role" (instead of remaining in the "natural 'child' role") but also their lawyers have difficulty abandoning the "parent" role for that of counselor. Perry & Teply supra note 9, at 1379. As a result of these two combined tendencies, children remain passive, "listen[ing] and obey[ing] rather than retaining their independence, viewing the attorney as one who works for them, and considering themselves as 'equals,' as would an adult." Id. (footnote omitted).
54. Gerald P. Koocher explains that a significant part of children's socialization is learning to do what older, bigger, and more powerful people tell them to do: "Many children quite literally regard their rights as those entitlements that adults permit them to exercise." Gerald P. Koocher, Children Under the Law: The Paradigm of Consent, in Reforming the Law: Impact of Child Development Research 3, 10 (Gary B. Melton ed., 1987) (citation omitted). In an earlier publication, Koocher wrote that "[c]hildren are not socialized to think in terms of their own rights. Generally, they are unlikely to perceive themselves as having decision-making authority, regardless of . . . 'objective reality.'" Gerald P. Koocher, Competence to Consent: Psychotherapy, in Children's Competence to Consent 111, 112-13 (Gary B. Melton et al. eds., 1983); see Thomas Grisso & Linda Vierling, Minors' Consent to Treatment: A Developmental Perspective, Prof. Psychol. 412, 419 (1978) (children under the ages of 12 or 13 have been shown to be significantly more prone to perceive the locus of control over their lives as external, which creates a tendency to resign themselves passively to their fate); Melton, supra note 10, at 36 (noting that a sense of autonomy is not easily engendered in children when they have experienced very little opportunity to make choices). Children's perceptions of their powerlessness are likely to be exacerbated by issues of race and class. In a study of elementary school-aged children who were given the authority to make certain health care decisions for themselves, Charles Lewis found that upper-middle class, white students were more likely to perceive the shift in decision-making authority than their low-income, minority counterparts, whose life experiences may have made them less inclined to believe that professed power shifts were, in fact, real. See Charles E. Lewis, Decision Making Related to Health: When Could/Should Children Act Responsibly?, in Children's Competence to Consent 75, 84 (Gary B. Melton et al. eds., 1983). Perry and Teply point out that not only do children have difficulty assuming an "active 'client' role" (instead of remaining in the "natural 'child' role") but also their lawyers have difficulty abandoning the "parent" role for that of counselor. Perry & Teply supra note 9, at 1379. As a result of these two combined tendencies, children remain passive, "listen[ing] and obey[ing] rather than retaining their independence, viewing the attorney as one who works for them, and considering themselves as 'equals,' as would an adult." Id. (footnote omitted).
55. I have found that most (though by no means all) of my clients have welcomed the idea of being "the boss." Moreover, as discussed in part III, below, lawyers assuming the traditional attorney model cannot represent their child clients effectively absent the child's understanding of that role.
56. In my experience, children often signal their incredulity by relating to their lawyers in a manner clearly designed to affect the lawyers' best interest judgments or by explicitly attributing to their lawyers a best interest agenda. On occasion, a child will more directly attempt to call the lawyer's bluff. One ten-year-old client of a colleague, upon being told that he was my colleague's boss, told her to close her eyes while he left the room. He also helped himself to a cup of coffee to try to provoke in her an unlawyerly reaction.
57. On one occasion, a nine-year-old client repeatedly grabbed the steering wheel and gear shift of my car while I was driving. While taking control of my car and getting my client back and buckled in his seat was clearly the right choice for traffic safety, it did not help to instill in him a sense of his decision-making authority in our relationship.
58. See Fred C. Zacharias, Rethinking Confidentiality, 74 Iowa L. Rev. 351, 383 (1989) (citing a study suggesting that even clients who believe that their lawyers are obligated to keep their confidences frequently disbelieve that the obligation will be fulfilled in practice); cf. Robert A. Burt, Conflict and Trust Between Attorney and Client, 69 Geo. L.J. 1015 (1981) (discussing unacknowledged prevalence of distrust between clients and their lawyers and the failure of professional standards to address the problem).
59. See Fred C. Zacharias, Rethinking Confidentiality, 74 Iowa L. Rev. 351, 383 (1989) (citing a study suggesting that even clients who believe that their lawyers are obligated to keep their confidences frequently disbelieve that the obligation will be fulfilled in practice); cf. Robert A. Burt, Conflict and Trust Between Attorney and Client, 69 Geo. L.J. 1015 (1981) (discussing unacknowledged prevalence of distrust between clients and their lawyers and the failure of professional standards to address the problem).
60. See discussion infra at notes 95-98 and accompanying text.
61. Sandra, one of the young adults interviewed by Janet Chaplan, explains: I felt that I wanted to tell my lawyer certain stuff . . . but I just felt that I would get in trouble, you know. Maybe that's just being in the system . . . someone [the lawyer] says "I'm not going to tell anyone" but you still have that feeling, because your trust has been broken so much before . . . . Chaplan, supra note 13, at 1771.
62. See Grisso, supra note 24, at 142 (noting that juveniles' attitudes and expectations about their lawyers may influence the degree to which children will avail themselves of the protections and advice lawyers can provide); Perry & Teply, supra note 9, at 1379 (stating that where a child fails to retain his independence in his relationship with his lawyer, the child will not be motivated to participate, and the lawyer will make bad, lawyer-driven decisions); see also Kurt W. Fischer & Helen H. Hand et al., Putting the Child Into Socialization: The Development of Social Categories in Preschool Children, in 5 Current Topics in Early Childhood Education 27 (Lilian G. Katz et al. eds., 1984) (noting that "[w]ithout an understanding of social categories and rules, children cannot act competently as members of their society").
63. For example, teenage clients who have had considerable trouble in their living situations or school programs often present a rosy picture of their circumstances to their lawyers in the belief that they will increase the lawyers' commitment to gaining them privileges (such as a less restrictive living environment or an opportunity to participate in desired a program) if they do not mention the problems they have been having. They choose to withhold information about their dispute with fellow residents or failing grades, not because they care, generally, about keeping the information secret, but because they think their lawyers will judge their interests differently if they learn this information. Neil, one of the young adults interviewed by Chaplan, corroborates children's tendency to withhold information strategically, suggesting that children who understand that their lawyers will report abuse and neglect will take this information into account in deciding what to tell their lawyers. See Chaplan, supra note 13, at 1773.
64. Jonah, also interviewed by Chaplan, suggests that when a child demonstrates his trust in his lawyer by confiding in him about a bad situation, he is signaling that he wants help escaping the situation. See id. at 1768-69.
65. In my observation, it is not uncommon for children to refuse to speak to their lawyers at all. And in my own experience, I have often struggled to undo the effects of caseworkers' berating commands to children to "talk to your lawyer, because she came all this way, and its her job to decide what you need."
66. Several years ago, I was appointed to represent a 12-year-old girl who was struggling with what to tell me about her long history of sexual abuse by her father. While, clearly, part of her concern was a straightforward confidentiality concern (would I keep what she told me a secret?), at least as big a concern was whether I would use the information she told me to seek objectives that she favored. Her biggest fear was that I would use the horrifying and extensive details of her history to argue that she should be placed in foster care where she had been badly mistreated in the past. Only after I assured her that I would press for her placement with a school employee (which required me to obtain a court order against the state agency's wishes) did she agree to share the history with me.
67. Children's concerns about keeping secrets, discussed in this section, can be distinguished from concerns about how information will be used as discussed in the previous section. See supra section III.A.1. As stated above, children may avoid sharing information, even information they do not consider secret, for fear that the lawyer will use the information to achieve ends that they oppose. Conversely, children will sometimes insist on keeping secrets (out of, for example, an interest in protecting the honor, privacy, or liberty of a family member) even if they would otherwise want the information to be used to help them. While the previous section focuses on the broader interest a child has in controlling the actions a lawyer takes on his behalf, this section focuses on the more narrow interest of preventing publication of information. As I will discuss in section III.B.1.b.i.(f), below, both of these concerns are protected when confidentiality rules apply.
68. For the sake of simplicity, this Article refers only to parents, rather than to other caregivers. The discussion applies equally well to any caregivers with whom the child has a significant relationship, and whose conduct might be at issue in a dependency or custody proceeding.
69. This distinction, while real, can easily be overstated. Adults, too, sometimes keep secrets to protect others, and children, particularly in the delinquency setting, are often guarding secrets about their own misdeeds.
70. See Clawar, supra note 9, at 25.
71. See, e.g., Chaplan, supra note 13, at 1780 (describing the view of one of the youths interviewed that what a child tells his lawyer will be affected by whether the lawyer will share information with others). While the connection between the lawyer's commitment to keeping confidences and the client's willingness to share confidences with his lawyer serves as the primary justification for the attorney-client privilege and other confidentiality protections, some commentators have questioned the strength of the connection. See infra note 85.
72. For a discussion of a lawyer's confidentiality obligations under the traditional attorney model, see infra section III.B.1.a.iii.
73. See Goldstein et al., supra note 9, at 32-33 (discussing the distinction between "real preferences" and "expressed preferences").
74. For a discussion of a lawyer's confidentiality obligations under the GAL model, see infra sections III.B.1.b.i.(f), III.B.1.b.ii.(d).
75. See infra text accompanying notes 152-155.
76. Model Rules of Professional Conduct (1983) [hereinafter Model Rules].
77. While the Model Rules have been adopted, as of 1994, in 37 states, the Model Code of Professional Responsibility (1981) [hereinafter Model Code] still governs legal conduct in a significant minority of states. See 2 Geoffrey C. Hazard, Jr. & W. William Hodes, The Law of Lawyering § AP4:107, at 1269-70 (2d ed. 1990). Because of the Model Rules' preeminence today, and the intention of the Rules' drafters to give clearer guidance than that provided by the Model Code, my discussion of the specific principles governing the representation of children, and the general principles applying to all lawyers, will focus on the Rules, and will address the Code only to the extent it suggests an additional or significantly different approach to the problems at issue. See 1 id. at xlvii (describing the Rules as the "new center of gravity of the law of lawyering").
78. While the Model Rules have been adopted, as of 1994, in 37 states, the Model Code of Professional Responsibility (1981) [hereinafter Model Code] still governs legal conduct in a significant minority of states. See 2 Geoffrey C. Hazard, Jr. & W. William Hodes, The Law of Lawyering § AP4:107, at 1269-70 (2d ed. 1990). Because of the Model Rules' preeminence today, and the intention of the Rules' drafters to give clearer guidance than that provided by the Model Code, my discussion of the specific principles governing the representation of children, and the general principles applying to all lawyers, will focus on the Rules, and will address the Code only to the extent it suggests an additional or significantly different approach to the problems at issue. See 1 id. at xlvii (describing the Rules as the "new center of gravity of the law of lawyering").
79. Two sets of standards more specifically addressing the representation of children, and particularly children who are the subjects of dependency proceedings, have also been proposed. The first of these, the IJA-ABA Juvenile Justice Standards, included a section on the representation of children in child protective proceedings, which was never adopted. See IJA-ABA Standards, supra note 3, Standard 3.1(b)(ii)[b] & [c]. The second of these standards, the Proposed American Bar Association Standards of Practice for Representing a Child in Abuse and Neglect Cases, were published in Volume twenty-nine of the Family Law Quarterly and were adopted by the ABA in February, 1996. See Proposed American Bar Association Standards of Practice for Representing a Child in Abuse and Neglect Cases, 29 Fam. L.Q. 375 (1995). These ABA standards focus more narrowly on the question of what role should be assumed by the child's lawyer, but do not address the lawyer's obligation to communicate the role to the child. I will therefore focus my attention on the Rules, which address lawyers' ethical obligations more broadly.
80. Model Rules, supra note 51, Rule 1.14(a).
81. Id. Rule 1.14(b). The Model Code addresses representation of disabled clients in EC 7-12: Any mental or physical condition of a client that renders him incapable of making a considered judgment on his own behalf casts additional responsibilities upon his lawyer. Where an incompetent is acting through a guardian or other legal representative, a lawyer must look to such representative for those decisions which are normally the prerogative of the client to make. If a client under disability has no legal representative, his lawyer may be compelled in court proceedings to make decisions on behalf of the client. If the client is capable of understanding the matter in question or of contributing to the advancement of his interests, regardless of whether he is legally disqualified from performing certain acts, the lawyer should obtain from him all possible aid. If the disability of a client and the lack of a legal representative compel the lawyer to make decisions for his client, the lawyer should consider all circumstances then prevailing and act with care to safeguard and advance the interests of his client. But obviously a lawyer cannot perform any act or make any decision which the law requires his client to perform or make, either acting for himself if competent, or by a duly constituted representative if legally incompetent. Model Code, supra note 52, EC 7-12.
82. See Haralambie, supra note 3, at 25-26 (concluding that because Rule 1.14 provides no real guidance to lawyers about how to represent children, lawyers are left to establish their own subjective criteria).
83. Model Rules, supra note 51, Rule 1.14(a).
84. Under the traditional attorney model, the only circumstances under which a normal client-lawyer relationship would be deemed to be impossible would be where a child is entirely incapable of engaging in communication or rational decision making. See supra note 17 and accompanying text.
85. See, e.g., Model Rules, supra note 51, Rule 1.4(b) (requiring communication of information adequate to ensure informed client decision making); 1 Hazard & Hodes, supra note 52, § 1.4:201, at 85 (noting that the communication required by the Rules necessarily depends on the context of representation and the parties involved); cf. Lee A. Pizzimenti, The Lawyer's Duty to Warn Clients About Limits on Confidentiality, 39 Cath. U. L. Rev. 441, 475-76 (1990) (arguing that basing a determination about what information should be shared with the client on an assessment of what the client would consider relevant to his decision making rather than on a rigid means/ends dichotomy "helps to assure that the lawyer treats her client as another human being engaged in a cooperative endeavor . . . rather than simply as a means by which to exercise her professional skill").
86. Another reading of the "reasonably possible" language would be that, rather than requiring reasonable accommodation to maintain the normal client-lawyer relationship, it allows accommodations which depart from the normal client-lawyer relationship. This reading would suggest that the normal client-lawyer relationship consists of a prescribed set of actions and any departure from those actions would mark the end of what was reasonably possible within that relationship. Such a conflation of conduct and relationship, however, rests on false assumptions about the monolithic nature of the representation of "normal" adult clients, and is inconsistent with the Rules' emphasis on achieving meaningful client participation.
87. In its recent study of lawyers who represent children, HHS found that a considerable majority of these lawyers received some amount of training about how to interview and communicate with children and their families. HHS Study, supra note 5, at tbl. 4.3-5.
88. See Charles W. Wolfram, Modern Legal Ethics § 4.5, at 163-64 (1986) ("Nothing lends more vitality to the client-lawyer relationship than effective communications between lawyer and client."); 1 Hazard & Hodes, supra note 52, § 1.1:101, at 1 (listing "communication" among four core duties owed to a client).
89. See, e.g., Model Rules, supra note 51, Rule 1.2(a), (c) (requiring consultation over trial tactics and before limiting the objectives of representation); id. Rule 1.6(a) (requiring consultation regarding client confidences); id. Rules 1.7-1.9 (requiring consultation regarding conflict of interest issues); id. Rule 2.2 (requiring consultation before a lawyer can act as an intermediary).
90. Id. pmbl.
91. Wolfram, supra note 62, § 4.5, at 164 (contrasting the Model Code's "offhand" treatment of the communication obligation, with the Model Rules which "explicitly require a lawyer to maintain communications with a client"); 1 Hazard & Hodes, supra note 52, § 1.4:101, at 82 (noting that no express duty of communication exists in the Model Code).
92. Model Rules, supra note 51, Rule 1.4(a).
93. Model Rules, supra note 51, Rule 1.4(b) (emphasis added). Rule 1.4 provides in full: (a) A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information. (b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation. Id. Rule 1.4.
94. Id. Rule 1.4 cmt.
95. Id.
96. Clearly where, as with an infant, the client has no ability to comprehend communications, the lawyer is freed from any obligation to communicate.
97. 1 Hazard & Hodes, supra note 52, § 1.4:103, at 84, explain that, "What is required to keep a client 'reasonably informed' will differ from client to client. If the client is a child or under other disability, the burden of communication is obviously heightened." The comment to Rule 1.14 also makes clear that a lawyer's communication obligations are not compromised when she represents a disabled client: "Even if the person does have a legal representative, [the comment directs] the lawyer should as far as possible accord the represented person the status of client, particularly in maintaining communication." Model Rules, supra note 51, Rule 1.14 cmt. (emphasis added).
98. As Wolfram explains: The subjects covered in the consultative communication cannot be cataloged in advance. In part, the scope of the conversation depends on the existing state of knowledge and sophistication of the client, the stage of the representation at which the conversation occurs, the importance of the subject to the client's objectives in the case. . . . Wolfram, supra note 62, § 4.5, at 165; see also Mark Spiegel, The New Model Rules of Professional Conduct: Lawyer-Client Decision Making and the Role of the Rules in Structuring the Lawyer-Client Dialogue, 1980 Am. B. Found. Res. J. 1003, 1011 (noting that meaningful decision making between lawyer and client requires not just "exchange of paper or words going from lawyer to client" but an exchange that ensures "participation and involvement that enable the client to genuinely understand the decision to be made"); cf. George v. Caton, 600 P.2d 822, 827 (N.M. Ct. App.) (directing that where potential client spoke in Navajo language through an interpreter, lawyer had duty to adapt communications to address difficulties of translation), cert. denied, 598 P.2d 215 (N.M. 1979).
99. One exception to this generalization, of course, is the communication obligation created by potential conflicts of interest. See Model Rules, supra note 51, Rules 1.7-1.9.
100. See 1 Hazard & Hodes, supra note 52, § 1.2:201, at 28 (explaining that the lawyer is to abide by the client's lawful objectives because "realization of those objectives is the very reason the lawyer was hired in the first place"); Spiegel, supra note 72, at 1003 (noting that the ideological basis of our adversary system is a "strong commitment to client control"); see also Model Rules, supra note 51, Rule 1.2(a) ("A lawyer shall abide by a client's decisions concerning the objectives of representation.").
101. Cf. Spiegel, supra note 72, at 1005 (noting that giving a lay person decision-making authority "without placing a corresponding duty of communicating information on the professional results in many instances in undermining the strength of the right to make decisions").
102. The client who asked me when I was going to let his mother out of jail, and his older brother, both have demonstrated this mix of confusion, resentment, and lack of investment in the lawyer-client consultative process. In part because of the slow pace of court proceedings in their case (tangible evidence of the limits of my powers and the powers of the court system in general), both boys, in their own ways, signaled their uncertainty about what role I played. The older boy interpreted my questions about his feelings about adoption, not as opportunities to control his fate (to others he frequently expressed his desire to be adopted), but as challenges to his loyalty to his imprisoned mother. To him, I was not someone who could help him work through what he wanted and make it happen, but rather a strange adult who was asking him how much he loved his mother. His brother, much less of a brooder, became neither defensive nor sad in response to my questions. He simply shrugged, and turned to more comfortable subjects of conversation, like sports and toys. Neither of these boys were too young to form or articulate positions, nor were they reluctant to do so. They just didn't know what to do with me. I, in turn, had no clear direction about how to represent them. Another very different sort of example of a child's failure to invest in the lawyer-client relationship is offered by a colleague: She represented a 17-year-old girl who was having trouble fitting in at her group home. Despite my colleagues' efforts to explain her role and offer her assistance, she later learned from authorities that her client had run away. The child had not seen my colleague as a resource for improving or changing her circumstances. As a result, my colleague was powerless to represent her.
103. Children may, in general, be more suggestible than adults. See Perry & Teply, supra note 9, at 1393. Such tendencies are exacerbated by a lack of understanding about the purpose of the lawyer's questioning. Imagine if the man we thought was our grocer turned out to be our divorce attorney. Our nods to his friendly pleasantries about our family could lead to the dismissal of our divorce petition or alarming misreadings about our view of custody issues. Similarly, a child's conversation with his lawyer about how he likes a foster home, or school, or his mother's boyfriend, can easily turn into a lawyer led discussion, where the child must directly contradict his lawyer in order to take over "direction" of the representation. The lawyer will leave the conversation convinced that the child's position is in accord with her own, when, in fact, the child was unaware of taking any position at all. All he thought he was doing was politely hearing the lawyer out. Cf. Id. at 1397 (suggesting that the more insecure and anxious a child is, the more likely he will be to agree with whatever his lawyer says, particularly because "children in our culture are taught to view adults as authority figures - persons to be obeyed and appeased"); see also Ramsey, supra note 3, at 321 (discussing the ease with which lawyers can manipulate clients by slanting information provided, or pressuring clients to take certain positions); Wolfram, supra note 62, § 4.5, at 164 (observing that restricting the information flow to a client can be used by lawyers to manipulate client decision making).
104. For a modest proposal about how the client's understanding can be enhanced, see infra part V.
105. See 1 Hazard & Hodes, supra note 52, § 1.6:105, at 155 (asserting that a lawyer's two most fundamental duties to his client are the duties of confidentiality and loyalty). The scope of an attorney's obligation to maintain the confidences of her clients has been and continues to be fiercely debated. Id. § 1.6:102, at 130.2. The confidentiality protection articulated in Model Rule 1.6, which obligates an attorney to keep confidential all matters "relating to representation of a client" sparked the most controversy during the drafting and adoption of the Model Rules. Id. at 127. Interestingly, the primary objection to the confidentiality principle - that it only protects guilty people, for the innocent have no need of its protections - doesn't apply to children, whose darkest secrets are not about themselves, but about others, usually their parents. Children's disregard of their own interests in determining if and when to keep secrets has not, however, inspired support for a more expansive construction of the confidentiality principles as applied to children. To the contrary, many lawyers representing children have advocated for the application of a more restrictive confidentiality protection to that representation out of concern that secret keeping detached from self-interest may put or keep children at serious risk of harm. See Report of the Working Group on Confidentiality, 64 Fordham L. Rev. 1367, 1367-77 (1996).
106. Model Code, supra note 52, DR 4-101(A).
107. Model Rules, supra note 51, Rule 1.6(a).
108. See 1 Hazard & Hodes, supra note 52, § 1.6:105, at 158.1 (explaining that a lawyer cannot keep information confidential where required by "other law" to disclose).
109. Cf., In re Maraziti, 559 A.2d 447, 450 (N.J. Super. Ct. App. Div. 1989) (holding that communication between a minor and his attorney in a dependency case was entitled to attorney-client privilege); see also Haralambie, supra note 3, at 35 ("Where the attorney is appointed as legal counsel, communication should remain privileged."). While case law focuses on the more narrow protection of the attorney-client privilege, the analysis supporting inclusion of children within this protection is equally applicable in the broader context of the confidentiality protection afforded by Rule 1.6.
110. See Wolfram, supra note 62, at 306 (noting that a lawyer is prevented by the confidentiality obligation from revealing information gained from the client unless the client gives knowing and intelligent consent after being warned by his lawyer of the risks of disclosure).
111. Hazard and Hodes note that while there is "little empirical evidence of the precise degree to which clients rely on the principle of confidentiality" in determining what to say to their lawyers, "it is intuitively obvious that lawyers operating under a binding requirement of confidentiality will have at least some greater ability to gain the trust of at least some clients." 1 Hazard & Hodes, supra note 52, § 1.6:101, at 128; see also Upjohn Co. v. United States, 449 U.S. 383, 389 (1981) (noting that the purpose of the attorney-client privilege is "to encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice"). But see Zacharias, supra note 34, at 352-56 (discussing a study of lawyers and laymen that suggests that there is some link between confidentiality protection and the use of and candor with lawyers, but that the link is not as strong as might be expected); Comment, Functional Overlap Between the Lawyer and Other Professionals: Its Implications for the Privileged Communications Doctrine, 71 Yale L.J. 1226, 1262 (1962) (stating that of 108 lay people surveyed, 55 said they would be less likely to make free disclosure to a lawyer if there were no attorney-client privilege, 37 said they would not be less likely to disclose, and 16 said they did not know how the absence of the privilege would affect their willingness to disclose).
112. See Wolfram, supra note 62, at 300 (noting that keeping client confidences signals a lawyer's loyalty to her client and inspires client trust); Robert P. Mosteller, Child Abuse Reporting Laws and Attorney-Client Confidences: The Reality and the Specter of Lawyer as Informant, 42 Duke L.J. 203, 266 (1992) (arguing that maintaining client confidences honors client autonomy "by maintaining client control over private information"); Albert W. Alschuler, The Preservation of a Client's Confidences: One Value Among Many or a Categorical Imperative?, 52 U. Colo. L. Rev. 349, 351-52 (1981) (asserting that the attorney-client privilege plays a central role in promoting a client's sense that our legal system is fair and that someone is on his side). Alschuler also points out that, in the absence of the privilege's protection, a client is forced to determine, for himself, what he should and should not share with his lawyer. Once the client must engage in this calculation, the lawyer becomes part of the system against which the client struggles, and control, as the client sees it, rests firmly with the lawyer. Id. at 352.
113. See Wolfram, supra note 62, at 300 (noting that keeping client confidences signals a lawyer's loyalty to her client and inspires client trust); Robert P. Mosteller, Child Abuse Reporting Laws and Attorney-Client Confidences: The Reality and the Specter of Lawyer as Informant, 42 Duke L.J. 203, 266 (1992) (arguing that maintaining client confidences honors client autonomy "by maintaining client control over private information"); Albert W. Alschuler, The Preservation of a Client's Confidences: One Value Among Many or a Categorical Imperative?, 52 U. Colo. L. Rev. 349, 351-52 (1981) (asserting that the attorney-client privilege plays a central role in promoting a client's sense that our legal system is fair and that someone is on his side). Alschuler also points out that, in the absence of the privilege's protection, a client is forced to determine, for himself, what he should and should not share with his lawyer. Once the client must engage in this calculation, the lawyer becomes part of the system against which the client struggles, and control, as the client sees it, rests firmly with the lawyer. Id. at 352.
114. See Wolfram, supra note 62, at 300 (noting that keeping client confidences signals a lawyer's loyalty to her client and inspires client trust); Robert P. Mosteller, Child Abuse Reporting Laws and Attorney-Client Confidences: The Reality and the Specter of Lawyer as Informant, 42 Duke L.J. 203, 266 (1992) (arguing that maintaining client confidences honors client autonomy "by maintaining client control over private information"); Albert W. Alschuler, The Preservation of a Client's Confidences: One Value Among Many or a Categorical Imperative?, 52 U. Colo. L. Rev. 349, 351-52 (1981) (asserting that the attorney-client privilege plays a central role in promoting a client's sense that our legal system is fair and that someone is on his side). Alschuler also points out that, in the absence of the privilege's protection, a client is forced to determine, for himself, what he should and should not share with his lawyer. Once the client must engage in this calculation, the lawyer becomes part of the system against which the client struggles, and control, as the client sees it, rests firmly with the lawyer. Id. at 352.
115. I am indebted to Gayle Hafner of the Maryland Legal Aid Bureau for this insight. It was through watching her speak with her new child clients in the simple language of keeping and telling secrets that I learned the power of this method of creating lawyer-client intimacy, and conveying the message of client control.
116. See Janet W. Astington, The Child's Discovery of the Mind 180 (1993) (summarizing studies that suggest that, by five years of age, children are capable of keeping secrets); Lickona, supra note 9, at 114, 119 (noting that whether conduct gets the actor in trouble serves as one of children's first means of determining moral culpability).
117. See 1 Hazard & Hodes, supra note 52, § 1.6:101, at 130.1 (stating that "lawyers demonstrate the moral values of trust and loyalty when they say they will keep quiet and then do so, even when there are compelling reasons to speak out" (citation omitted)).
118. See Mosteller, supra note 86, at 208; cf. Haralambie, supra note 3, at 36 (noting that unless a state's child abuse statute expressly abrogates the attorney-client privilege, the privilege remains, though it is not clear whether it applies to an attorney assuming the GAL role).
119. See Wolfram, supra note 62, at 245 (observing that one of the purposes of confidentiality protections is to assure clients that they can maintain control over their own private information). In his essay on the confidentiality protection, Professor Alschuler points to another potential problem with explaining the limits of the protection to the client - namely, that it carries a veiled warning to the client not to say precisely those things that the lawyer would be required to disclose. Alschuler, supra note 86, at 353. In our context, the concern would be that a child, informed of his lawyer's obligation to report
120. See, for example, the comments of Chaplan's interviewee, Neil, who suggests that lawyers should warn child clients of the lawyer's reporting obligation before children reveal the relevant information so that children can decide what to tell their lawyers with a full understanding of the consequences. Chaplan, supra note 13, at 1780.
121. Alschuler, supra note 86, at 353 & n.10 (stating that "giving each client [a] list of exceptions to the obligation of confidentiality before asking for his story [ ] would almost certainly destroy any significant sense of confidentiality within the attorney-client relationship," if such a list is even understood by the client). But see W. William Hodes, The Code of Professional Responsibility, the Kutak Rules, and the Trial Lawyer's Code: Surprisingly, Three Peas in a Pod, 35 U. Miami L. Rev. 739, 786, 813 (1981) (warning a client about the limits of the confidentiality protection may inspire the "fullest flowering of the trusting relationship, rather than its death knell"); Pizzimenti, supra note 59, at 476-81 (suggesting that disclosing the limits of the confidentiality protection enhances client autonomy and the client's trust in the client-lawyer relationship). Without addressing whether an explanation of the duty or intention to report child abuse would undermine their trust in their lawyers, the six children interviewed by Chaplan concluded that their lawyers should report suspected abuse and neglect, even when the confidentiality principles counseled otherwise. Chaplan, supra note 13, at 1778.
122. Reporting laws require only the reporting of information suggesting that a child has been abused or neglected, as defined by state law. Reporting obligations generally are most relevant in the early phases of dependency representation, particularly prior to the adjudicatory hearing, where the parent's conduct is directly at issue. Later in the proceedings, particularly when the child has been removed from the home, many other issues, including the appropriateness of a child's placement, the parents' compliance with the terms of case plan agreements, and the quality of visits, among other things, are more likely to be at issue. Children's confidences about their feelings toward adults, their objectives in the litigation, and their own conduct are not subject to reporting requirements. This does not mean, of course, that abuse and neglect issues cannot reemerge. The conduct of the child's new caretakers, as well as parental conduct during visits or once the child is returned to the home, can all reintroduce the issue of child maltreatment, and the lawyer's potential duty to report.
123. See, e.g., 55 Pa. Code § 5100.33(a) (1991) (giving parents control over the release of mental health records for children under 14 years of age).
124. See Federal Educational Rights and Privacy Act (the Buckley Amendment), 20 U.S.C. §§ 1232g, 1232i (1994) (requiring educational agencies and institutions to make school records accessible to parents and students as a condition of receipt of federal funds).
125. See, e.g., 55 Pa. Code § 3680.35(b)(1)(i) (1987) (authorizing parent access to child welfare records of a child upon request).
126. Cf. Riccardi v. Tampax, Inc., 493 N.Y.S.2d 798, 799 (App. Div. 1985) (illustrating parents' authority to waive the doctor-patient privilege on behalf of their child). In rare instances, a lawyer can invoke the power of the court to block the release of private information to a parent. Such action sends a powerful message to the child about his strength in the process and the loyalty and respect shown to the child by his attorney. See, e.g., Daniel C.H. v. Daniel O.H., 269 Cal. Rptr. 624, 630-31 (Ct. App. 1990) (holding that a parent accused of child molestation should not be entitled to have access to communications made by the child to a therapist as part of treatment for abuse).
127. See HHS Study, supra note 5, at 2-2 (citing statutes giving children's representatives "open access to various records and information concerning the child . . . including records from . . . public agencies, hospitals, . . . psychologists, . . . courts, law enforcement, social services, and schools"); see also Haralambie, supra note 3, at 7-9 (discussing a lawyer's authority, by statute or court order, to access and disclose confidential information). Although both sources speak in terms of "GALs," it appears that their discussions intend to encompass all lawyers charged under state law with the representation of children in dependency matters, and, in Haralambie's discussion, lawyers representing children in private custody disputes, as well.
128. The commentary accompanying the Proposed ABA Standards calls on lawyers of older children to obtain the child's consent before accessing the child's records, even if the consent is not required. In his letter to Linda Elrod commenting on this requirement, Professor John J. Sampson argues that requiring the child's consent to access materials that can be accessed by every other party in the litigation does little to protect the child's confidentiality, and "authorize[s] the child to direct his or her own lawyer to commit malpractice," by ensuring her that she is unaware of materials that may be "part and parcel of the litigation." See Letter from Professor John J. Sampson to Linda Elrod (Oct. 6, 1995) (on file with the Fordham Law Review). Because I agree that information already disclosed to other parties in the litigation should be reviewed as part of the representation of any client, I narrow my recommendation regarding when consent should be required to information not already disclosed.
129. 1 Hazard & Hodes, supra note 52, § 1.6:102, at 130.2 (suggesting that the confidentiality principle "often requires that victims of a client's misdeeds be forsaken"). But see supra note 44 (qualifying my distinction between the confidences of adults and children).
130. Some commentators have suggested that the ethical rules authorizing a breach of confidentiality to prevent the client from committing criminal acts likely to lead to the death or serious bodily harm of a third party should also be construed to authorize disclosures to prevent the client from being seriously harmed by the criminal acts of an abuser. See Haralambie, supra note 3, at 36.
131. See id. at 27 (criticizing the traditional attorney model for ignoring "the dramatic and often dangerous fact that the wishes of the child may be driven by irrational forces and may even be self-destructive").
132. See Heartz, supra note 5, at 338-40.
133. In some states, the responsibilities of GALs for filing motions, issuing subpoenas, examining, and cross-examining witnesses, among other lawyerly functions, are expressly provided for by statute. See statutes cited in HHS Study, supra note 5, at 2-3 & nn.28-34.
134. See Model Rules, supra note 51, Rule 1.2(a); see also supra note 74 and accompanying text.
135. See 1 Hazard & Hodes, supra note 52, § 1.14:101, at 439 (positing that where a person's impairments are so great that a normal client-lawyer relationship is not reasonably possible, "assigning that person the role of 'client' is a mere formality").
136. Model Rules, supra note 51, Rule 1.14(b); see also 1 Hazard & Hodes, supra note 52, § 1.14:101, at 439 (suggesting that Rule 1.14(a) applies where a normal client-lawyer relationship is difficult, whereas Rule 1.14(b) applies where a normal client-lawyer relationship is impossible).
137. Model Rules, supra note 51, Rule 1.14(b).
138. See id. Rule 1.14(b) cmt. 3 ("If a legal representative has already been appointed for the client, the lawyer should ordinarily look to the representative for decisions on behalf of the client."); 1 Hazard & Hodes, supra note 52, § 1.14:102, at 440.1 (suggesting that a guardian appointed to represent the interests of a severely disabled person be viewed as the lawyer's primary client and the disabled person as the derivative client, or third party beneficiary); see also Noe v. True, 507 F.2d 9, 12 (6th Qr. 1974) (noting that a GAL is an officer of the court with authority to "engage counsel, file suit, and to prosecute, control and direct the litigation").
139. Model Rules, supra note 51, Rule 1.14 cmt.
140. Id.
141. See 1 Hazard & Hodes, supra note 52, § 1.14:102, at 440 (suggesting that where the client is unable to communicate, the lawyer "does not really represent [the client] as such, but instead represents an abstraction: 'the best interests of that person'").
142. See Model Rules, supra note 51, Rule 4.1 ("Truthfulness in Statements to Others").
143. See id. Rule 4.4 ("Respect for Rights of Third Persons").
144. See id. Rule 4.3 ("Dealing with Unrepresented Persons"). Rule 4.3 provides: In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested. When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer's role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding. Id. (emphasis added).
145. Id. Rule 4.3 cmt.
146. For a discussion of a lawyer's confidentiality obligations under this analysis, see supra section III.B.1(b)(i))(f).
147. 1 Hazard & Hodes, supra note 52, § 1.14:102, at 440.
148. Id.
149. Model Rules, supra note 51, Rule 1.13(d).
150. See 1 Hazard & Hodes, supra note 52, § 1.13:109, at 400.
151. Id. § 1.14:109, at 400 n.3.
152. Most children lack the sophistication and resources (financial and otherwise) to seek out separate counsel. Even when they successfully do so, however, there is no guarantee that the court or the guardian will authorize retention or appointment of the separate counsel. For a particularly extreme example of a child's difficulty obtaining separate counsel of her choice to represent her own views in opposition to those represented by her GAL, see In re A.W., 618 N.E. 2d 729 (Ill. App. Ct. 1993). In that case, the Public Guardian appealed, unsuccessfully, the juvenile court's allowance of the child's motion for substitution of counsel (which left his authority as GAL unchanged), leaving the matter unresolved for over one year. Id. at 733.
153. 1 Hazard & Hodes, supra note 52, § 1.13:102, at 388-89.
154. Id. § 1.13:109, at 400.
155. Where the lawyer detaches her best interest inquiry from the views of her client, she creates a considerable risk that she will impose her own values upon the client, rather than determining, more objectively, what the best result would be for the child. See id § 1.14:301, at 447.
156. Id. § 1.6:101, at 128-30 (noting that confidentiality protections apply only to clients, and therefore the threshold question in applying the confidentiality rule is whether the person in question is, in fact, a client).
157. Id. § 1.13:501, at 430; see also Alschuler, supra note 86, at 351 (concluding that it is unfair for a lawyer to "obtain information by implicit or explicit deception," even if such deception produces information valuable to the legal system's search for truth).
158. See supra section III.B.1.a.iii.
159. Model Rules, supra note 51, Rule 1.13.
160. Id. Rule 1.13(b) & (c); see also 1 Hazard & Hodes, supra note 52, § 1.13:111, at 402 (noting that, although the drafters of the Rules proposed a provision authorizing limited "loyal disclosures" where the lawyer had exhausted internal review mechanisms and determined that disclosure outside the entity was necessary to protect the interests of the entity, the loyal disclosure provision was deleted from the Rules, as adopted).
161. In both dependency and custody matters, the court is commonly charged with making best interest assessments on behalf of children. See, e.g., Ex parte Beasley, 564 So. 2d 950, 954-55 (Ala. 1990) (noting that the state standard applied in custody determinations, whether or not the state is involved, is the best interest of the child standard).
162. The commentary to Rule 1.14 seems to favor this reading, advising that "[e]ven if the person does have a [separate] legal representative, the lawyer should as far as possible accord the represented person the status of client." Model Rules, supra note 51, Rule 1.14 cmt.
163. For a discussion of a GAL's confidentiality obligations under this analysis, see infra section III.B.1.b.ii.(d).
164. Model Rules, supra note 51, Rule 1.2(c). Hazard and Hodes suggest that this provision obligates a lawyer to ensure that the "client will understand the risks inherent in contracting for limited legal services." 1 Hazard & Hodes, supra note 52, § 1.2:303, at 39.
165. Model Rules, supra note 51, Rule 1.4(a) & (b). Wolfram distinguishes between "reporting" communications (governed by Rule 1.4(a)), and "consultative" communications (governed by Rule 1.4(b)). Wolfram, supra note 62, at 164-65. Hazard and Hodes suggest that Rule 1.4(a) focuses on communication as a means of improving the client-lawyer relationship, whereas Rule 1.4(b) focuses on communication as a means of ensuring meaningful client participation. 1 Hazard & Hodes, supra note 52, § 1.4:102, at 83. For a full text of Rule 1.4, see supra note 67.
166. Model Rules, supra note 51, Rule 1.4(a).
167. Id. Rule 1.14 cmt. ("Even if the person does have a legal representative, the lawyer should as far as possible accord the represented person the status of client, particularly in maintaining communication." (emphasis added)).
168. Id. Rule 1.14(a). My discussion here focuses on the nature of the GAL's ethical obligations. Later, I will discuss the extent to which meeting these obligations is practically possible. Clearly, this division is somewhat artificial - few would contend that lawyers are ethically obligated to do the impossible. Considering the scope of the ethical obligations first, however, will focus the feasibility inquiry more precisely, and will prevent the feasibility inquiry from swallowing up the ethical analysis.
169. See 1 Hazard & Hodes, supra note 52, § 1.6:105, at 155 (arguing that the chief aspect of client loyalty implicated by the conflict of interest issues is the duty of confidentiality).
170. Rule 1.7 of the Model Rules sets out the general rule governing potential conflicts; Rule 1.8 of the Model Rules focuses on potential conflicts between the interests of the lawyer and of the client; and Rule 1.9 addresses potential conflicts between former and current clients.
171. Rule 1.7(a) provides: A lawyer shall not represent a client if the representation of that client will be directly adverse to another client, unless: (1) the lawyer reasonably believes the representation will not adversely affect the relationship with the other client; and (2) each client consents after consultation. Model Rules, supra note 51, Rule 1.7(a).
172. Moreover, regardless of client consent, Rule 1.7 prevents an attorney from undertaking the additional representation unless he "reasonably believes the representation will not adversely affect the relationship with the other [original] client." Where the child is considered a separate client from the best interest client, it could be argued that the best interest representation always has some adverse affect on the child, who is deprived of a zealous advocate. This result is particularly true if "adversely effecting" is read, as Hazard and Hodes suggest it should be, to include "a client's subjective feeling of betrayal." 1 Hazard & Hodes, supra note 52, § 1.7:207, at 236.3.
173. Unlike the options suggested in the text, which give the child the authority to protect his own interest in having a zealous advocate, the common practice of requiring the lawyer to request appointment of a separate GAL when she disagrees with her own client's position places the child's lawyer in the untenable position of signaling to the court her disagreement with the very position she is charged with advocating zealously.
174. See 1 Hazard & Hodes, supra note 52, § 1.6:406, at 218.1
175. See, e.g., Ross v. Gadwah, 554 A.2d 1284, 1285 (N.H. 1988) (holding that the attorney-client privilege does not apply where the attorney is appointed as GAL).
176. Model Rules, supra note 51, Rule 1.6(a).
177. Of course, where state reporting laws mandate that the lawyer report abuse and neglect to state authorities, this mandate would trump any confidentiality duty set out in the Rules, regardless of the model of representation. See supra note 90 and accompanying text.
178. Sandra, one of the children interviewed by Janet Chaplan, captures this experience with the following description: I only see you one time a year and it's like an hour before we go to court. And then the first thing [the lawyer says] is "Oh, I want to speak to Sandra alone." So then that makes my aunt feel like, "What's she telling them?" and in time it makes it bad for me. . . . It kind of puts you on the spot if you're in a bad situation. It's hard to open up because you're not sure. And then you can't go in the court room, so you're wondering. Chaplan, supra note 13, at 1771-72.
179. See supra discussion in section III.B.1.b.i.(f).
180. See Duquette & Ramsey, supra note 3, at 353-54; Joseph Goldstein et al., Beyond the Best Interests of the Child 49-64 (1973); see also Martha L. Fineman, The Politics of Custody and the Transformation of American Custody Decision Making, 22 U.C. Davis L. Rev. 829, 835 & n.19 (1989) (discussing the indeterminancy of the best interests test due to various factors that must be balanced); Robert H. Mnookin, Child-Custody Adjudication: Judicial Functions in the Face of Indeterminacy, 39 Law & Contemp. Probs., Summer 1975, at 226, 255-62 (discussing "the inherent indeterminancy of the best-interests standard").
181. See Duquette & Ramsey, supra note 3, at 353-54; Joseph Goldstein et al., Beyond the Best Interests of the Child 49-64 (1973); see also Martha L. Fineman, The Politics of Custody and the Transformation of American Custody Decision Making, 22 U.C. Davis L. Rev. 829, 835 & n.19 (1989) (discussing the indeterminancy of the best interests test due to various factors that must be balanced); Robert H. Mnookin, Child-Custody Adjudication: Judicial Functions in the Face of Indeterminacy, 39 Law & Contemp. Probs., Summer 1975, at 226, 255-62 (discussing "the inherent indeterminancy of the best-interests standard").
182. See Duquette & Ramsey, supra note 3, at 353-54; Joseph Goldstein et al., Beyond the Best Interests of the Child 49-64 (1973); see also Martha L. Fineman, The Politics of Custody and the Transformation of American Custody Decision Making, 22 U.C. Davis L. Rev. 829, 835 & n.19 (1989) (discussing the indeterminancy of the best interests test due to various factors that must be balanced); Robert H. Mnookin, Child-Custody Adjudication: Judicial Functions in the Face of Indeterminacy, 39 Law & Contemp. Probs., Summer 1975, at 226, 255-62 (discussing "the inherent indeterminancy of the best-interests standard").
183. In her interview, Sandra made this point, which Chaplan summarizes as follows: [E]ven if the lawyer makes a decision to take a position different from the child's preference, Sandra believes that if the child is involved in the decision-making process, the child is more likely to tell her lawyer what the problem really is. Client-centered interviewing makes the difference between whether a client will talk to her lawyer or not, and whether the lawyer can represent her effectively. Chaplan, supra note 13, at 1772.
184. As noted above, children are often never seen by the judge. See HHS study, supra note 5, at 5-26 (reporting that children rarely speak in court). Proceedings themselves, which decide crucial matters such as where children will live, whether they will get to see their parents, what services they will receive, or whether they will be freed for adoption, often last for only minutes. See NCJFCJ Resource Guidelines, supra note 21, at 10 (noting that deficient resources, and increased caseloads, hearings and parties have "gravely" affected the quality of the hearings, which are "often rushed"); Philadelphia Citizens for Children and Youth, Report of the Dependency Court Watch Project 5 (1990) (reporting that of 529 cases observed, 36% lasted less than five minutes, and only .4% lasted over 45 minutes).
185. See Mlyniec, supra note 4, at 13-14 (noting that asking a child to choose between parents in a custody proceeding can impose a heavy burden on the child); Landsman & Minow, supra note 6, at 1165 ("Studies of children of divorce indicate that there may be very good reasons for a child's decision not to become directly involved in the dispute over his custody . . . ."). A lawyer assuming the traditional attorney role also may lessen the burden on the child by explaining that even though she will press the child's positions zealously in court, the judge will ultimately make the decisions. But many children can appreciate that if their position is relevant at all, it might change the judge's decision. And in some jurisdictions, lawyers report that courts tend to go along with whatever the child's attorney advocates. See id. at 1184. Moreover, simply taking a position in court and having that position known to their parents, can be burdensome enough for some children, regardless of whether the child's position carries any weight with the judge.
186. For discussions of children's resentment at being excluded from involvement in decision making in the context of divorce proceedings, see sources cited in Landsman & Minow, supra note 6, at 1164 n.184. But see Chaplan, supra note 13, at 1783 (concluding that while children wanted to be included in decision making, they preferred to think of their lawyers as protectors rather than as simple advocates).
187. Howard Lesnick's comments, in a very different context, offer a fruitful comparison. In considering "whether an attorney had any legitimate independent interests in the way a case was to be handled on behalf of a client," Professor Lesnick writes: I've come to a curious conclusion: I honestly do not think it matters which position the attorney takes - to leave the final decision with the client or insist on keeping it - so much as I think it matters whether the attorney makes either decision in a way that respects the concerns of both attorney and client, and treats the client as an understanding independent person, with interests and sensibilities separate from the attorney, and the ability and obligation to assume responsibility for his or her decisions. Elizabeth Dvorkin et al., Becoming a Lawyer: A Humanistic Perspective on Legal Education and Professionalism 200, 202 (1981).
188. As discussed above, children's misperceptions of the GAL's role can probably be attributed, in part, to the emotional and professional difficulties GALs have in totally "coming clean" about their role and about the details of the positions they are taking. But even if the GAL takes pains to clarify her role, the child is likely to remain confused, because, just like the child represented by the traditional attorney, the child has little sense of the context in which the GAL performs her representation.
189. Model Rules, supra note 51, Rule 1.14 cmt. (emphasis added).
190. Although I know of no studies that have looked expressly at children's comprehension of the lawyer-client role, studies about role comprehension, generally, and about children's developing understanding of the doctor-patient roles, particularly, suggest a relatively consistent pattern of development during these years. See generally Malcolm W. Watson, Development of Social Role Understanding, 4 Developmental Rev. 192 (1984) (discussing "a systematic sequence of role understanding in children from one to thirteen years of age"); Fischer & Hand et al., supra note 37; see also Malcolm W. Watson & Kurt W. Fischer, Structural Changes in Children's Understanding of Family Roles and Divorce, in The Development and Meaning of Psychological Distance (R.R. Cocking & A. Renninger eds., forthcoming 1996) (reviewing children's developing ability to comprehend family roles) (draft on file with the Fordham Law Review).
191. Although I know of no studies that have looked expressly at children's comprehension of the lawyer-client role, studies about role comprehension, generally, and about children's developing understanding of the doctor-patient roles, particularly, suggest a relatively consistent pattern of development during these years. See generally Malcolm W. Watson, Development of Social Role Understanding, 4 Developmental Rev. 192 (1984) (discussing "a systematic sequence of role understanding in children from one to thirteen years of age"); Fischer & Hand et al., supra note 37; see also Malcolm W. Watson & Kurt W. Fischer, Structural Changes in Children's Understanding of Family Roles and Divorce, in The Development and Meaning of Psychological Distance (R.R. Cocking & A. Renninger eds., forthcoming 1996) (reviewing children's developing ability to comprehend family roles) (draft on file with the Fordham Law Review).
192. Watson, supra note 160, at 200-201.
193. Id. at 205; Watson & Fischer, supra note 160, at 9-10; Fischer & Hand et al., supra note 37, at 40.
194. Watson, supra note 160, at 195.
195. Id. at 200-207; Watson & Fischer, supra note 160, at 10-11; Fischer & Hand, supra note 37, at 41-43, 59-63.
196. See Piaget & Inhelder, supra note 18, at 95; Robert L. Selman, The Growth of Interpersonal Understanding: Developmental and Clinical Analyses 38 (1980) (concluding that children gain the ability to see others as unique psychological beings with different thoughts and feelings between the ages of five and nine); Watson & Fischer, supra note 160, at 6-7 (describing the interrelationship between the ability to create psychological "distance" between self and others and the ability to comprehend roles); cf. Dorothy Flapan, Children's Understanding of Social Interaction 65 (1968) (reporting the results of her study of children's understanding of social interaction at ages six, nine, and twelve, which suggested that the greatest changes in children's ability to perceive the thinking and motivation of others occurred between the ages of six and nine).
197. See Piaget & Inhelder, supra note 18, at 95; Robert L. Selman, The Growth of Interpersonal Understanding: Developmental and Clinical Analyses 38 (1980) (concluding that children gain the ability to see others as unique psychological beings with different thoughts and feelings between the ages of five and nine); Watson & Fischer, supra note 160, at 6-7 (describing the interrelationship between the ability to create psychological "distance" between self and others and the ability to comprehend roles); cf. Dorothy Flapan, Children's Understanding of Social Interaction 65 (1968) (reporting the results of her study of children's understanding of social interaction at ages six, nine, and twelve, which suggested that the greatest changes in children's ability to perceive the thinking and motivation of others occurred between the ages of six and nine).
198. See Watson, supra note 160, at 201.
199. For purposes of my discussion, the particular age at which children can comprehend professional roles is much less important (and much less within my expertise) than the recognition that, at some relatively young age, children acquire this capacity. My analysis is tied, not to a particular age, but to the presence or absence of the capacity for role understanding, whenever it occurs.
200. While there is considerable disagreement among developmental psychologists about the extent to which instruction may affect the rate at which children achieve cognitive capacity, see David Wood, How Children Think and Learn 24, 54 (1988) (comparing Piaget, who minimizes the role of instruction, to Vygotsky, who recognizes a central role for instruction in the stimulation of children's cognitive development), this disagreement does not unseat capacity as a necessary precursor of comprehension, but rather suggests that there is some (though certainly not unlimited) fluidity in how and when that capacity is achieved.
201. See Watson & Fischer, supra note 160, at 12-13 (noting that children's performance in the area of role understanding varies widely, depending upon whether they are provided with a "supportive context"); Fischer & Hand, supra note 37, at 53, 66 (same).
202. This obligation may also fall to others interested in the lawyer-child relationship in the court process. The obligations of other parties and institutions to familiarize a child with his lawyer's role exceeds the scope of this Article.
203. See supra text accompanying notes 75-77.
204. As the preceding discussion about children's development suggests, children's ability to understand roles will become increasingly sophisticated over time. It is my contention that the lawyer has an obligation to communicate her role to all children who can comprehend the role at some level, even a rudimentary level. As the child's ability to understand the role increases in sophistication, so, too must the lawyer's communication of the role.
205. Jean Piaget, Piaget's Theory, in 1 Handbook of Child Psychology: History, Theory and Methods 117-23 (P.H. Mussen & W. Kessen eds., 1983) [hereinafter Piaget's Theory]; see also Wood, supra note 168, at 5, 19 (summarizing Piaget's emphasis on propelling cognitive development through activity); Kathy Sylva & Ingrid Lunt, Child Development, A First Course 185 (1982) (same).
206. Jean Piaget, Piaget's Theory, in 1 Handbook of Child Psychology: History, Theory and Methods 117-23 (P.H. Mussen & W. Kessen eds., 1983) [hereinafter Piaget's Theory]; see also Wood, supra note 168, at 5, 19 (summarizing Piaget's emphasis on propelling cognitive development through activity); Kathy Sylva & Ingrid Lunt, Child Development, A First Course 185 (1982) (same).
207. Piaget's Theory, supra note 173, at 107; see also Wood, supra note 168, at 38-41 (describing Piaget's concepts of assimilation, accommodation, and equilibration); Sylva & Lunt, supra note 173, at 110-11 (same).
208. Piaget's Theory, supra note 173, at 106-09; see also Wood, supra note 168, at 39 (noting that, under Piaget's theory, "some accommodations require dramatic changes in the structure of the child's understanding of the world"); Sylva & Lunt, supra note 173, at 110-11 (noting that accommodation, unlike assimilation, requires a mental change in the child to solve problems that are otherwise too difficult for the child to solve).
209. Wood, supra note 168, at 24; see also Sylva & Lunt, supra note 173, at 184-85. In their summary of discovery learning, Sylva and Lunt explain: Discovery learning is really opposed to the idea of teaching if by teaching is meant the traditional process of imparting information, or modifying behavior, or even filling up an empty vessel with knowledge. The idea is rather to provide the materials and the environment for the child to explore and let him do the rest almost by himself, motivated to learn by his own curiosity. . . . . [The child] is involved in an active construction and reconstruction of his world view and his understanding of what goes on around him. Id.
210. Jerome S. Bruner, Toward a Theory of Instruction 11, 44-45 (1966).
211. Id. at 12-14.
212. Id. at 21, 29-30, 49.
213. See Educational Psychology 128 (N.L. Gage & David C. Berliner eds., 4th ed. 1988).
214. See generally Lev S. Vygotsky, Mind in Society: The Development of Higher Psychological Processes (1978); Lev S. Vygotsky, Thought and Language (1986); see also Wood, supra note 168, at 25 (noting that, according to Vygotsky, "only through interaction with the living representatives of culture . . . can a child come to acquire, embody, and further develop [a society's] knowledge"). While Vygotsky's works were originally published in Russian in the early 20th Century, they received little attention from Western psychologists until recent years. See Wood, supra note 168, at 9. Today, Vygotsky's focus on the social and cultural context of learning is widely embraced. For a leading example of a contemporary developmental psychologist who has built upon Vygotsky's themes, see the writings of Barbara Rogoff, including Apprenticeship in Thinking: Cognitive Development in Social Context (1990) (stressing the importance of both guidance and participation in the process of cognitive development).
215. See generally Lev S. Vygotsky, Mind in Society: The Development of Higher Psychological Processes (1978); Lev S. Vygotsky, Thought and Language (1986); see also Wood, supra note 168, at 25 (noting that, according to Vygotsky, "only through interaction with the living representatives of culture . . . can a child come to acquire, embody, and further develop [a society's] knowledge"). While Vygotsky's works were originally published in Russian in the early 20th Century, they received little attention from Western psychologists until recent years. See Wood, supra note 168, at 9. Today, Vygotsky's focus on the social and cultural context of learning is widely embraced. For a leading example of a contemporary developmental psychologist who has built upon Vygotsky's themes, see the writings of Barbara Rogoff, including Apprenticeship in Thinking: Cognitive Development in Social Context (1990) (stressing the importance of both guidance and participation in the process of cognitive development).
216. See generally Lev S. Vygotsky, Mind in Society: The Development of Higher Psychological Processes (1978); Lev S. Vygotsky, Thought and Language (1986); see also Wood, supra note 168, at 25 (noting that, according to Vygotsky, "only through interaction with the living representatives of culture . . . can a child come to acquire, embody, and further develop [a society's] knowledge"). While Vygotsky's works were originally published in Russian in the early 20th Century, they received little attention from Western psychologists until recent years. See Wood, supra note 168, at 9. Today, Vygotsky's focus on the social and cultural context of learning is widely embraced. For a leading example of a contemporary developmental psychologist who has built upon Vygotsky's themes, see the writings of Barbara Rogoff, including Apprenticeship in Thinking: Cognitive Development in Social Context (1990) (stressing the importance of both guidance and participation in the process of cognitive development).
217. Vygotsky, Mind in Society, supra note 181, at 56-57; see also Wood, supra note 168, at 19 (noting that Vygotsky theorized that "activity in . . . the external social plane is gradually 'internalized' by the child").
218. To recognize that learning occurs within a context is to recognize that learning is shaped by that context - that learning is context - specific. See Kurt W. Fischer et al., The Development of Abstractions in Adolescence and Adulthood, in Beyond Formal Operations: Late Adolescent and Adult Cognitive Development 45-46 (1984) (noting that "people always acquire specific skills tied to particular environmental circumstances" and that "context always plays an enormous role in developing behavior"). Without the contextual supports of experience and assistance, among other things, children's behavior is likely to be developmentally compromised. See Fischer & Hand et al., supra note 37, at 52-53 ("Changes in the amount of [contextual] support typically produce profound differences in the developmental level of behavior.").
219. Vygotsky, Mind in Society, supra note 181, at 84-91.
220. See Educational Psychology, supra note 180, at 126, 128. Rogoff, supra note 181, emphasizes the child's active, participatory role in this collaborative process of instruction which she characterizes as "apprenticeship."
221. See Wood, supra note 168, at 8, 19. Even the promoters of "programmed learning," whose emphasis on an externally controlled, highly structured learning process distinguishes them sharply from the psychologists discussed above, stress the need for active child involvement, and immediate experiential reinforcement of the concepts learned. While the programmed learning approach, inspired by the behaviorist B.F. Skinner, features learning propelled by preprogrammed external stimuli, its proponents reject learning through passive listening and suggest a student must be actively engaged in incremental problem-solving in order to learn. See Sylva & Lunt, supra note 173, at 191.
222. See Perry & Teply, supra note 9, at 1382-83 (noting the difficulty children have in understanding lawyers' verbal explanations and calling for the use of visual aids whenever practical).
223. See William Wesley Patton & Sara Latz, Severing Hansel from Gretel: An Analysis of Siblings' Association Rights, 48 U. Miami L. Rev. 745, 795 (1994) (noting that most dependency cases are resolved informally).
224. In their study of lawyers for children in Connecticut, Kim Landsman and Martha Minow found that lawyers frequently took on responsibilities inconsistent with their own characterizations of their roles. Landsman & Minow, supra note 6, at 1145-46.
225. See HHS Study, supra note 5, §§ 5.2.4, 6.2.2.3.
226. There are, of course, some well-run juvenile and family courts. My observation, and the information I have gathered from children's lawyers working in other jurisdictions, suggest that these well-run proceedings represent the exception rather than the rule. The particular problems I describe in this paragraph are all problems I have observed directly. The problems most jurisdictions have in conducting appropriate hearings in these cases are caused, in part, but not in whole, by the lack of resources provided to family and juvenile courts.
227. Cf. Kathleen G. Williams, The Philadelphia Court School Project Training Manuel (1990) (describing a program of discussion, role playing, and touring the court used by the Philadelphia District Attorney's office to familiarize children with the court process in preparation for children's testimony at criminal child abuse proceedings) (on file with the Fordham Law Review).