Kids will be kids: Creating a framework for interviewing and counseling adolescent clients

Temple Law Review

Volumn 79, Issue 2, 2006, Pages 357-414

  Cohen, Laura ^a   Mandelbaum, Randi ^a  

^a Lewis and Clark Law School   (United States)

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EID: 33947634584     PISSN: 08998086     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Conference Paper

References (282)

1. This hypothetical dialogue, as well as all of those that follow, are fictionalized scenarios based on interactions that both authors have had with numerous adolescent clients over the last eighteen years.
2. 543 U.S. 551 (2005).
3. Roper, 543 U.S. at 570-71.
4. Id.
5. We have chosen to focus on this age group for several reasons. First, much of the adolescent development research largely focuses on this cohort. Second, although cognition continues to develop throughout the teenage years, young people achieve a significantly mature level of cognitive functioning by age twelve or shortly thereafter. See infra Part II for a discussion of adolescent development. Finally, lawyers for children younger than twelve often are compelled, by statute or their understanding of the ethical rules, to engage in "best interests" advocacy, in which they or another legal representative make decisions on behalf of the child. See infra Part III for a discussion about legal interviewing and counseling.
6. See Roper, 543 U.S. at 569, 578 (finding that scientific and sociological studies prove adolescents' underdeveloped sense of responsibility and immaturity; therefore, imposing death penalty on offenders under eighteen years old is a violation of Eighth and Fourteenth Amendments).
7. See, e.g., Richard J. Bonnie & Thomas Grisso, Adjudicative Competence and Youthful Offenders, in YOUTH ON TRIAL: A DEVELOPMENTAL PERSPECTIVE ON JUVENILE JUSTICE 73, 87-88 (Thomas Grisso & Robert G. Schwartz eds., 2000) [hereinafter YOUTH ON TRIAL] (discussing how developmental immaturity renders adolescents incompetent to stand trial);
8. THOMAS GRISSO, EVALUATING JUVENILES' ADJUDICATIVE COMPETENCE: A GUIDE FOR CLINICAL PRACTICE 13 (2005) (providing methods, guidance, and standards for evaluating adolescents' developmental maturity to competently stand trial);
9. Thomas Grisso, What We Know About Youths' Capacities as Trial Defendants, in YOUTH ON TRIAL, supra, 139, 139 (using behavioral and social science to understand youths' ability to participate in their trials).
10. See, e.g., Barry C. Feld, Juveniles' Waiver of Legal Rights: Confessions, Miranda, and the Right to Counsel, in YOUTH ON TRIAL, supra note 7, at 105, 106 (considering whether juveniles can appreciate consequences of knowingly and intelligently waiving their rights);
11. Nina Chernoff & Marsha Levick, Beyond the Death Penalty: Implications of Adolescent Development Research for the Prosecution, Defense, and Sanctioning of Youthful Offenders, CLEARINGHOUSE REV. J. POVERTY L. & POL'Y, July-Aug. 2005, at 209, 215 (stating that developmental deficiencies in adolescents should limit confidence in their decision to waive Miranda rights);
12. Thomas Grisso, Juveniles' Capacities to Waive Miranda Rights: An Empirical Analysis, 68 CAL. L. REV. 1134, 1136 (1980) (discussing whether juveniles have the capacity to waive their rights and approaches courts take to determine whether this has adequately been done).
13. See, e.g., Barbara Kaban & Judith C Quinlan, Rethinking a "Knowing, Intelligent, and Voluntary Waiver" in Massachusetts' Juvenile Courts, J. CTR. FAMILIES, CHILD., & CTS., Fall 2004, at 35, 35-50 (examining juveniles' understanding of legal proceedings and terminology used therein).
14. See Chernoff & Levick, supra note 8, at 209, 213-15 (stating that immature adolescent judgment and decision-making capabilities render the "reasonable person" standard inappropriate for evaluating adolescent mens rea and suggesting that renewed focus should be placed on defenses based on lack of intent); Kim Taylor-Thompson, States of Mind/States of Development, 14 STAN. L. & POL'Y REV. 143, 145, 162 (2003) (stating that adolescents do not fit into traditional conceptions of adult mens rea).
15. See Franklin E. Zimring, Penal Proportionality for the Young Offender: Notes on Immaturity, Capacity, and Diminished Responsibility, in YOUTH ON TRIAL, supra note 7, at 271, 285-88 (applying penal proportionality theory to adolescent offending and recommending two doctrinal developments: (1) a "sliding scale of responsibility based on both judgment and the practical experience of impulse management and peer control," and (2) "establishing as a requirement - for any theory governing punishment for young offenders - an attempt to harmonize assumptions about the nature of adolescent development and responsibility with other legal regulations of the transition to adulthood").
16. See infra Part III for further discussion about prior research on legal interviewing and counseling. Two notable contributions, both dealing with the relationship between juvenile defenders and their clients, are Emily Buss, The Role of Lawyers in Promoting Juveniles' Competence as Defendants, in YOUTH ON TRIAL, supra note 7, at 243
17. [hereinafter Buss, Role of Lawyers]
18. and Kristin Henning, Loyalty, Paternalism, and Rights: Client Counseling Theory and the Role of Child's Counsel in Delinquency Cases, 81 NOTRE DAME L. REV. 245 (2005).
19. See infra note 137 for more information on sources that discuss how to address these factors.
20. See infra Part II.F for a discussion of adolescent cognitive development.
21. MODEL RULES OF PROF'L CONDUCT R. 1.2, 1.14 (1983); MODEL CODE OF PROF'L RESPONSIBILITY EC 7-7 (1969).
22. There are, moreover, political and philosophical concerns at stake here. Decision-making capacity has long been a charged question in other spheres involving adolescents, such as medical consent and education law. Adolescents facing any of these major life decisions (including those involved in child welfare and juvenile justice matters) must be presumed to be competent. The lawyer or other advice-giver's role is to ensure that the counseling process is adapted to and honed for the particular challenges raised by an adolescent client or patient. For a clear-headed integration of the developmental literature in the abortion and criminal contexts, see generally J. Shoshanna Ehrlich, Shifting Boundaries: Abortion, Criminal Culpability, and the Indeterminate Legal Status of Adolescents, 18 WIS. WOMEN'S L.J. 77 (2003), which discusses issues surrounding minors' choices to get abortions, including mental capacity for such decisions.
23. IT'S A WONDERFUL LIFE (Liberty Films, Inc. 1946).
24. These traits are gross generalizations and constitute tendencies identified by researchers rather than characteristics present in all adolescents. Furthermore, these factors do not affect every young person in identical ways; instead, these are simply behaviors or trends identified in a statistically significant sample of the studies' cohorts. In addition, it is important to recognize that many young people involved in the juvenile justice and child welfare systems suffer from difficulties that place them outside the norms of adolescent development, including exposure to childhood trauma, developmental disabilities and delays, learning disabilities, and mental illness. These difficulties exacerbate the challenges posed by any attorney-client relationship involving an adolescent and require a nuanced adaptation. See infra Part IV for a discussion of the strategies tailored to meet the needs of the individual client. Much of the psychological and psychosocial research discussed in the following sections was undertaken over the past fifteen years, thanks in part to the John D. and Catherine T. McArthur Foundation's Research Network on Adolescent Development and Juvenile Justice. We cannot possibly do this work justice here, but urge the reader to review the following pieces, among others: YOUTH ON TRIAL, supra note 7; Elizabeth Cauffman & Laurence Steinberg, The Cognitive and Affective Influences on Adolescent Decision-Making, 68 TEMP. L. REV. 1763 (1995)
25. [hereinafter Cauffman & Steinberg, Cognitive and Affective] (using a developmental approach to define maturity of judgment and its legal implications);
26. Jeffrey Fagan, Atkins, Adolescence, and the Maturity Heuristic: Rationales for a Categorical Exemption for Juveniles from Capital Punishment, 33 N.M. L. REV. 207 (2003) (discussing how courts equate adolescents with the mentally retarded in making judicial determinations);
27. Thomas Grisso, The Competence of Adolescents as Trial Defendants, 3 PSYCHOL. PUB. POL'Y & L. 3 (1997) (finding that adolescents' immaturity and lack of capacity to make decisions coupled with a recent rise in violent juvenile behavior has criminal justice system detrimentally treating children like adults);
28. Elizabeth S. Scott, N. Dickon Reppucci & Jennifer L. Woolard. Evaluating Adolescent Decision Making in Legal Contexts, 19 LAW & HUM. BEHAV. 221 (1995) (discussing how adolescents pose singular dilemma as gray area between small children and adults);
29. Elizabeth S. Scott & Laurence Steinberg, Blaming Youth. 81 TEX. L. REV. 799 (2003) (exploring maturity and adolescents in relation to criminal justice system);
30. Laurence Steinberg & Elizabeth Cauffman, Maturity of Judgment in Adolescence: Psychosocial Factors in Adolescent Decision Making. 20 LAW & HUM. BEHAV. 249 (1996)
31. [hereinafter Steinberg & Cauffman, Maturity of Judgment] (analyzing relationship between adolescents and criminal justice system in terms of three factors: responsibility, temperance, and perspective).
32. More recently, however, scientists have explored whether physiological bases exist for the factors that uniquely influence adolescent judgment and decision making. Using magnetic resonance imaging, scientists are now able to track and study brain development in children and adolescents over a period of many years. These three-dimensional scans demonstrate that the adolescent brain overproduces "gray matter," which regulates thought processes. Elizabeth R. Sowell et al., Mapping Continued Brain Growth and Gray Matter Density Reduction in Dorsal Frontal Cortex: Inverse Relationships During Postadolescent Brain Maturation. 21 J. NEUROSCI. 8819, 8827 (2001). In particular, the frontal lobe, which governs impulse control and risk assessment, undergoes more change during adolescence than at any other period in life. Id. at 8828. During late adolescence and early adulthood, the gray matter begins to recede and is replaced by a protective, fatty, white layer. called "white matter." Id. at 8819. Through this process, during which approximately one percent of the gray matter is pruned from the brain, the brain matures and adult judgment and decision-making capacities emerge. Id. In fact, the frontal lobe is the last sector of the brain to develop; some researchers suggest that the maturation process continues into one's early twenties. See, e.g., id. at 8819-29 (discussing studies involving magnetic resonance imaging and findings about the brain in the postadolescent years).
33. Cauffman & Steinberg, Cognitive and Affective, supra note 18, at 1775; Scott, Reppucci & Woolard, supra note 18, at 230.
34. Cauffman & Steinberg, Cognitive and Affective, supra note 18, at 1775
35. (citing B. Bradford Brown, Peer Groups and Peer Culture, in AT THE THRESHOLD: THE DEVELOPING ADOLESCENT 171, 191 (S. Shirley Feldman & Glen R. Elliott eds., 1990));
36. see also Margo Gardner & Laurence Steinberg, Peer Influence on Risk Taking, Risk Preference, and Risky Decision Making in Adolescence and Adulthood: An Experimental Study, 41 DEVELOPMENTAL PSYCHOL. 625, 629-30, 634 (2005) (finding that effects of peer pressure on individual's decision to engage in risky activities is highest during adolescence and decreases into adulthood and that adolescents' ability to withstand peer influence continues to develop into adulthood).
37. See Gardner & Steinberg, supra note 21, at 625 (investigating correlation between peer influence and risk taking in adolescents and finding peer pressure contributes more strongly to adolescents' risky behavior than to adults').
38. Cauffman & Steinberg, Cognitive and Affective, supra note 18, at 1774-75.
39. Scott, Reppucci & Woolard, supra note 18, at 230 (citing B.A. Cromer & K.J. Tarnowski, Noncompliance in Adolescents: A Review, 10 DEV. & BEHAV. PEDIATRICS 207, 212-13 (1989)):
40. Linda Taylor & Howard S. Adelman, Facilitating Children's Participation in Decisions That Affect Them: From Concept to Practice, 15 J. CLINICAL CHILD PSYCHOL. 346, 346 (1986)). It should be noted, however, that some studies have concluded that adolescents routinely reject parental input and advice. Id.
41. Cauffman & Steinberg, Cognitive and Affective, supra note 18, at 1775.
42. Scott, Reppucci & Woolard, supra note 18, at 230.
43. Id.; see also Laurence Steinberg, Risk Taking in Adolescence: What Changes and Why?, 1021 ANNALS N.Y. ACAD. SCI. 51, 54-55 (2004) (analyzing age in relation to risk taking along with other factors, such as biology, susceptibility to influence, and perception).
44. Cauffman & Steinberg, Cognitive and Affective, supra note 18, at 1772
45. (citing Lita Furbey & Ruth Beyth-Marom, Risk Taking in Adolescence: A Decision-Making Perspective, 12 DEVELOPMENTAL REV. 1, 6-23 (1992)).
46. Scott, Reppucci & Woolard, supra note 18, at 231 (emphasis in original).
47. Id.
48. Id.
49. In a study of adolescents' decision-making processes, Laurence Steinberg concluded that: What distinguishes adolescents from adults in this regard . . . is not the fact that adolescents are less knowledgeable about what is, and what is not, risky. What distinguishes them . . . is that adolescents have a higher need for the sort of stimulation that risk taking provides. This is why our attempts to educate adolescents about the risks of drugs, alcohol, tobacco, for example, have been such unmitigated failures. Steinberg, supra note 27, at 54.
50. See Gardner & Steinberg, supra note 21, at 625-26 (noting that adolescents typically commit crimes with others, while adults typically commit crimes alone). This peer group factor is of particular relevance in the delinquency context, because, as Franklin R. Zimring puts it, "No fact of adolescent criminality is more important than what sociologists call its 'group context,' and this fact is important to a reality-based theory of adolescent moral and legal responsibility for criminal acts." Zimring, supra note 11, at 281. One study demonstrated that almost ninety percent of robberies committed by juvenile defendants in the 1970s involved more than one young person. Id.
51. Scott, Reppucci & Woolard, supra note 18, at 231 (citing William Gardner & Jana Herman, Adolescents' AIDS Risk Taking: A Rational Choice Perspective, NEW DIRECTIONS FOR CHILD DEV.: ADOLESCENTS IN THE AIDS EPIDEMIC, Winter 1990, at 17, 25-26).
52. Id. (citing Jari-Erik Nurmi, How Do Adolescents See Their Future? A Review of the Development of Future Orientation and Planning, 11 DEVELOPMENTAL REV. 1, 11 (1991)).
53. Id.
54. Cauffman & Steinberg, Cognitive and Affective, supra note 18, at 1781.
55. Id.
56. Id.
57. Id. (citing Alice M. Isen & Barbara Means, The Influence of Positive Affect on Decision-Making Strategy, 2 SOC. COGNITION 18, 29-30 (1983)).
58. Id.
59. One study showed no variation in moodiness between fifth and ninth graders, but another demonstrated significant differences between nineteen- and twenty-five-year-olds. Cauffman & Steinberg, Cognitive and Affective, supra note 18, at 1782-83
60. (citing Reed Larson et al., Mood Variability and the Psychosocial Adjustment of Adolescents, 9 J. YOUTH & ADOLESCENCE 469, 471-72, 487-88 (1980));
61. Reed Larson & Claudia Lampman-Petraitis, Daily Emotional States as Reported by Children and Adolescents, 60 CHILD DEV. 1250, 1258 (1989)).
62. Id. at 1783.
63. See, e.g., Scott, Reppucci & Woolard, supra note 18, at 224-25 (commenting on, and disagreeing with, studies that show adolescents' and adults' decision-making capabilities are not distinguished).
64. Cauffman & Steinberg, Cognitive and Affective, supra note 18, at 1770.
65. Elizabeth S. Scott, Criminal Responsibility in Adolescence: Lessons from Developmental Psychology, in YOUTH ON TRIAL, supra note 7, at 291, 302; Scott, Reppucci & Woolard, supra note 18, at 224-25.
66. See Scott, supra note 46, at 301-03 (concluding that adolescent's decision-making skills develop at different rates across different "task domains"); Scott, Reppucci & Woolard, supra note 18, at 225 (stating that an adolescent's competence to make one kind of decision may not be present in making a decision in another context).
67. Elizabeth Cauffman & Laurence Steinberg, Researching Adolescents' Judgments and Culpability, in YOUTH ON TRIAL, supra note 7, at 325, 335 (noting that researchers need to replicate real world conditions to accurately study development of culpability);
68. Cauffman & Steinberg, Cognitive and Affective, supra note 18, at 1770; Scott, supra note 46, at 303; see also Steinberg, supra note 27, at 53-54 (noting that differences in adolescent risk taking are attributable to higher need for stimulation and underdeveloped self-regulations, both connected to biological sources). Some researchers have begun to attempt to do this. See, e.g., Gardner and Steinberg, supra note 21, at 627-28 (examining peer influence on risk taking measured by having peer groups play video game).
69. Thomas Grisso, Adolescents' Decision Making: A Developmental Perspective on Constitutional Provisions in Delinquency Cases, 32 NEW ENG. J. ON CRIM. & CIV. CONFINEMENT 3, 8 (2006) (discussing constitutional protections and juvenile justice system).
70. See Scott, Reppucci & Woolard, supra note 18, at 231 (examining difference between adolescent and adult decision making).
71. Id.
72. Id. at 233; see also Scott, supra note 46, at 305-06 (stating that psychosocial factors cause adolescents to differ from adults in value assigned to perceived consequences).
73. See Cauffman & Steinberg, Cognitive and Affective, supra note 18, at 1772-73 (discussing how adolescents participate in behavior they know to be risky); Scott, Reppucci & Woolard, supra note 18, at 233 (noting that adolescents tend to value personal appearance and peer approval more than adults).
74. See Scott, supra note 46, at 306 ("[T]he excitement of the holdup and the possibility of getting some money . . . weigh more heavily in [a young person's] decision than the cost of possible apprehension by the police, or the long-term costs to his future life of conviction of a serious crime.").
75. See Cauffman & Steinberg, Cognitive and Affective, supra note 18. at 1772-73 (finding that risky behavior of adolescents is not from lack of information but rather stems from adolescents' inability to see long-term consequences and ease with which social status pressure and sensation seeking affect them).
76. Scott, Reppucci & Woolard, supra note 18, at 231, 233.
77. Chernoff & Levick, supra note 8, at 211.
78. "It may be easier, for instance, for a lawyer to seek to manipulate her client into accepting the lawyer's position instead of disciplining herself to advocate for the client's position zealously." JEAN KOH PETERS, REPRESENTING CHILDREN IN CHILD PROTECTIVE PROCEEDINGS: ETHICAL AND PRACTICAL DIMENSIONS § 7-2(d)(5), at 349 (2d ed. 2001).
79. Id. § 2-3(b), at 38 n.9.
80. Even within the confines of best interests advocacy, competing philosophies and approaches exist. One doctrine, generally deemed the best interests model, calls on the attorney to determine what is in the client's best interests based on the lawyer's own experiences and viewpoint. Kristin Henning neatly captures the concept: Presumably . . . the attorney will identify a wider range of options than the child, recognize more of the possible outcomes and consequences, and better weigh the advantages and disadvantages of each option. Even if the lawyer's decisions do not satisfy the immediate and temporary values of the child, the decisions should be acceptable to the child upon reflection as a mature adult. Henning, supra note 12, at 281-82. A second approach, the substituted judgment model, calls on the attorney to make decisions on behalf of the client in accordance with how the client would decide if competent to do so. Id. at 303. This approach is generally favored by scholars and practitioners in the fields of elder and disability law because lawyers for older and newly disabled people can base their advocacy on the decisions and choices that their clients made previously, when still competent. The model also permits the attorney to consider how other, similarly situated clients might answer similar questions. Id. at 303-04 (citing Angela D. Lurie, Representing the Child-Client: Kids Are People Too, 11 N.Y.L. SCH. J. HUM. RTS. 205, 235 (1993));
81. Randi Mandelbaum, Revisiting the Question of Whether Young Children in Child Protection Proceedings Should Be Represented by Lawyers, 32 LOY. U. CHI. L.J. 1, 66 (2000). Even in states that compel lawyers for children to engage in best interests advocacy, the substituted judgment approach provides a principled context in which attorneys can and must consider how and why their adolescent clients have decided similar questions in the past, as well as how other adolescents might decide them. Henning, supra note 12, at 303-04. To the extent that this approach is more reflective and respectful of the client, it may well be preferable to the paternalistic best interests model. See Mandelbaum, supra, at 65-67 (reviewing substituted judgment model and finding it preferable to best interests approach but not reflective of an individual child's needs and priorities because it relies on a "reasonable child" test and not a determination of unique needs and interests of the particular child). Finally, Jean Koh Peters sets forth the "child-in-context" model, which is discussed in detail infra notes 103-17 and accompanying text. See also KOH PETERS, supra note 58, §§ 1-1 to 1-5, at 1-19 (explaining that a lawyer needs to understand uniqueness of his child client in order to best represent him);
82. cf. Martin Guggenheim, Matter of Ethics: Counseling Counsel for Children, 97 MICH. L. REV. 1488, 1489-90 (1999) (questioning role of counsel for young children and reviewing work of Jean Koh Peters).
83. See, e.g., ELIZABETH CALVIN ET AL., JUVENILE DEFENDER DELINQUENCY NOTEBOOK 28 (2d ed. 2006) [hereinafter JUVENILE DEFENDER NOTEBOOK] (finding that attorneys "advocate zealously for the expressed interests of that client at each stage of her case");
84. JUVENILE JUSTICE STANDARDS PROJECT, INST. OF JUD. ADMIN. & AM. BAR ASS'N, STANDARDS RELATING TO COUNSEL FOR PRIVATE PARTIES, standard 3.1, 3.2 (1979) (instructing that determination of juvenile client's interests remains with the juvenile if capable of considered judgment);
85. AM. BAR ASS'N, STANDARDS OF PRACTICE FOR LAWYERS WHO REPRESENT CHILDREN IN ABUSE AND NEGLECT CASES, standard I-B-4 (1996) [hereinafter AM. BAR ASS'N, STANDARDS OF PRACTICE] (instructing that attorneys should "represent the child's expressed preferences");
86. Recommendations of the Conference on Ethical Issues in the Legal Representation of Children, 64 FORDHAM L. REV. 1301, 1302 (1996) (presenting recommendations for juveniles' attorneys to follow to better represent their clients).
87. 387 U.S. 1 (1967).
88. Gault, 387 U.S. at 30.
89. In addition, the theoretical and, indeed, philosophical similarities between juvenile and criminal defense may well create a comfort zone for strict advocacy, even among attorneys who would not hesitate to engage in best interests advocacy on behalf of the same clients if they happened to be involved in child protective proceedings. The punitive tenor of modern delinquency proceedings, which often carry the threat of maximum security incarceration and other long-term consequences like sex offender registration and predicate sentencing laws, throws into sharp relief the liberty interest that is at stake and renders substitution of judgment an unacceptable choice for many defenders. See Henning, supra note 12, at 260-62 (citing assessments conducted by National Juvenile Defender Center found at http://www.njdc.info/ assessments.php).
90. See id. at 269 (citing In re R.D., 499 N.E.2d 478, 481-82 (Ill. App. Ct. 1986) (holding that, in Illinois, juvenile defenders must engage in best interests advocacy at disposition)).
91. Id. at 260-62 (citing to assessments conducted by the National Juvenile Defender Center found at http://www.njdc.info/assessments.php).
92. JUVENILE DEFENDER NOTEBOOK, supra note 61, at 14.
93. See MODEL RULES OF PROF'L CONDUCT R. 1.2 (1983) (discussing scope of relationship between attorney and client and requiring attorney to abide by client's decisions).
94. Id. R. 1.3.
95. Id. R. 1.2 (emphasis added).
96. Cf. MODEL CODE OF PROF'L RESPONSIBILITY EC 7-7 (1969) (giving decision-making authority exclusively to client). The Model Code of Professional Responsibility governed legal practice in the majority of states from 1969-1983 (when the Model Rules were adopted) and is still followed in a few jurisdictions, including New York. In contrast to the "objectives/means" dichotomy embodied in the Model Rules of Professional Conduct, Ethical Consideration 7-7 states: In certain areas of legal representation not affecting the merits of the cause or substantially prejudicing the rights of a client, a lawyer is entitled to make decisions on his own. But otherwise the authority to make decisions is exclusively that of the client and, if made within the framework of the law, such decisions are binding on his lawyer. MODEL CODE OF PROF'L RESPONSIBILITY EC 7-7 (1969) (emphasis added).
97. With regard to these types of decisions, the Model Code might offer a more helpful analytical framework. If the client's relationship with her mother can be framed in terms of "rights" - as it surely can - then the decision to testify clearly has the potential to "substantially prejudice" those rights and must remain in the province of the client.
98. DAVID BINDER ET AL., LAWYERS AS COUNSELORS: A CLIENT-CENTERED APPROACH 275-80 (2004).
99. Of course, Model Rule 1.2 requires lawyers to "consult" with clients regarding means, but such consultation is a far less complicated interaction than a fully engaged decision-making process. See MODEL RULES OF PROF'L CONDUCT R. 1.2 (1983) (stating that "a lawyer shall abide by a client's decisions concerning the objectives of representation and . . . shall consult with the client as to the means by which they are to be pursued"); cf. JUVENILE JUSTICE STANDARDS PROJECT, supra note 61, standard 3.1(b)(i)(c) (allocating decision-making authority for specific decisions to client or lawyer and suggesting that, where a very young client is "incapable of considered judgment in his or her own behalf," the attorney should ask the court to appoint a guardian ad litem).
100. MODEL RULES OF PROF'L CONDUCT R. 1.14 (1983) (emphasis added). Compare id. (stating that lawyer must provide certain services for a client with diminished capacity), with MODEL CODE OF PROF'L RESPONSIBILITY EC 7-11 (1969) ("The responsibilities of a lawyer may vary according to the intelligence, experience, mental condition, or age of a client . . . ." (emphasis added)).
101. MODEL RULES OF PROF'L CONDUCT R. 1.14 (1983) (emphasis added). The question of decision making with and on behalf of clients who are disabled for reasons other than age is beyond the scope of this Article. For a thoughtful and thought-provoking discussion of this issue in the medical context, however, see NORMAN L. CANTOR, MAKING MEDICAL DECISIONS FOR THE PROFOUNDLY DISABLED 101-48 (2005). It also should be noted that some commentators believe that: [The Model Rules of Professional Conduct and the Model Code of Professional Responsibility] reject the concept that any disability must be globally determined. Rather, disability is contextual, incremental, and may be intermittent. The child's ability to contribute to a determination of his or her position is functional, depending upon the particular position and the circumstances prevailing at the time the position must be determined. Therefore, a child may be able to determine some positions in the case but not others. Similarly, a child may be able to direct the lawyer with respect to a particular issue at one time but not another. AM. BAR ASS'N, STANDARDS OF PRACTICE, supra note 61, standard I-B-3.
102. Even reaching this conclusion requires the lawyer to make a critical decision on behalf of the client. A client generally will not tell a lawyer that she is disabled. Instead, the lawyer must first determine that the client suffers from a disability, which will certainly have a "substantial impact" on many aspects of the client's life and how the client experiences the court process and the lawyer. See Stanley S. Herr, Representation of Clients with Disabilities: Issues of Ethics & Control, 17 N.Y.U. REV. L. & SOC. CHANGE 609, 621-22 (1991) (stating that in order to discern client's wishes, lawyer must first evaluate client's competency).
103. MODEL RULES OF PROF'L CONDUCT R. 1.14(a) (1983).
104. Id. R. 1.14(b) (emphasis added).
105. Compare id. (requiring lawyer to take action when client is at risk of "substantial physical, financial or other harm"), with MODEL CODE OF PROF'L RESPONSIBILITY EC 7-12 (1969) (requiring lawyer to obtain "all possible aid" from clients who are "capable of understanding the matter in question or of contributing to the advancement of [their] own interests" rather than admonishing the lawyer to strive for a normal attorney-client relationship).
106. In some extreme circumstances, however, a client's wishes cannot be reconciled with an honest evaluation of his or her best interests, even after skillful counseling. In such situations, a lawyer practicing under a best interests mandate must adhere to that evaluation, but, at the very least, must still express the client's wishes to the court. KOH PETERS, supra note 58, § 7-4(c), at 366 ("[T]he lawyer must voice the child's wishes, even if the lawyer is constrained, by assigned role, not to advocate them."). For a lucid integration of the best interests mandate and a client-centered approach to advocacy, see generally KOH PETERS, supra note 58.
107. Traditionally, an attorney acting as a guardian ad litem is constrained to represent the child's best interests rather than the child herself, thus "reassur[ing] the court that an adult is assessing the child's needs and interests." Id. § 2-3(b), at 37. For a historical perspective on the role of the guardian ad litem, see id. § 2-3(b), at 33 n.3.
108. By contrast, the Model Code of Professional Responsibility imposes no obligation on the attorney to seek out appointment of a guardian ad litem or any other legal representative for clients who are unable to make "considered judgments"on their own behalf. Although the Model Rules Ethical Consideration 7-12 requires the attorney to abide by the decisions of an already existing guardian for an "incompetent" client, it goes on to state that, where a disabled client has none, the "lawyer may be compelled in court proceedings to make decisions on behalf of the client" after obtaining "all possible aid" from him or her. MODEL CODE OF PROF'L RESPONSIBILITY EC 7-12 (1969). If the lawyer is compelled to make decisions on behalf of a client, the rule imposes at least a rhetorical constraint on her authority: she "should consider all circumstances then prevailing and act with care to safeguard and advance the interests of [the] client." Id. The provision also is careful to ensure that "a lawyer cannot perform any act or make any decision which the law requires [the] client to perform or make, either acting for himself if competent, or by a duly constituted representative if legally incompetent." Id. (emphasis added). Such decisions include, for example, the decision to enter a guilty plea in a juvenile delinquency case or, for older adolescents, to consent to adoption or emancipation; in other words, the attorney cannot usurp the client's authority with his own decisions in such critical matters on the tenuous ground of immature judgment. Clearly, the Ethical Consideration contemplates only legal or factual incompetence, rather than the developmental status of adolescence, as a basis for substitution of judgment.
109. This assumption may be somewhat limited where the attorney has been statutorily mandated to pursue best interests advocacy.
110. MODEL RULES OF PROF'L CONDUCT R. 2.1 (1983).
111. Id. Although the Model Code of Professional Responsibility no longer governs legal practice in most states, Ethical Consideration 7-8 provides an interesting foil to Model Rule 2.1: A lawyer should exert his best efforts to ensure that decisions of [the] client are made only after the client has been informed of relevant considerations . . . . Advice of a lawyer to [a] client need not be confined to purely legal considerations. A lawyer should advise [the] client of the possible effect of each legal alternative. A lawyer should bring to bear upon this decision-making process the fullness of his [or her] experience as well as [the lawyer's] objective viewpoint. In assisting [the] client to reach a proper decision, it is often desirable for a lawyer to point out those factors which may lead to a decision that is morally just as well as legally permissible. [The lawyer] may emphasize the possibility of harsh consequences that might result from assertion of legally permissible positions. MODEL CODE OF PROF'L RESPONSIBILITY EC 7-8 (1969) (footnotes omitted). Lawyers who practice under the Code thus must engage in an activist, holistic form of client counseling, including imposition of the lawyer's own "experience" and "viewpoint" into the process.
112. See generally BINDER ET AL., supra note 73 (explaining aspects of client-centered counseling).
113. For books discussing the client-centered model, see generally ROBERT M. BASTRESS & JOSEPH D. HARBAUGH, INTERVIEWING, COUNSELING & NEGOTIATING: SKILLS FOR EFFECTIVE REPRESENTATION (1990); BINDER ET AL., supra note 73;
114. DAVID CHAVKIN, CLINICAL LEGAL EDUCATION, A TEXTBOOK FOR LAW SCHOOL CLINICAL PROGRAMS (2002);
115. ROBERT F. COCHRAN, JR. ET AL., THE COUNSELOR-AT-LAW: A COLLABORATIVE APPROACH TO CLIENT INTERVIEWING AND COUNSELING (1999);
116. STEFAN H. KRIEGER ET AL., ESSENTIAL LAWYERING SKILLS (1st ed. 1999). It should be noted that, although it bears marked similarities to the client-centered model, Cochran refers to the approach as a "collaborative decision-making model" and situates it somewhere between authoritarianism and client-centeredness. COCHRAN ET AL., supra, § 1-4, at 6. As summarized by Kotkin, "They suggest that lawyers and clients should collaboratively negotiate their relationship, including determining mutual goals, methods, division of responsibility and degree of client participation." Kotkin, supra note 87, at 18.
117. See BINDER ET AL., supra note 73, at 128-35, 166-80 (describing questioning techniques, including time line, theory development, and T-funnel questioning methods). In employing one of the methods, known as "T-funneling," the lawyer pursues topical lines of questioning, moving from broad, open-ended questions to more directed and, ultimately, tightly closed questions until he has obtained all relevant facts and information from the client. Id. at 167-73. Once one topic has been explored fully, the lawyer moves on to the next. Id. As the lawyer guides the client through this process, he begins to formulate factual theories and, ultimately, legal theories of the case, from which later counseling sessions will flow. See id. at 166 (describing T-funnel questioning as technique for theory development).
118. Id. at 19-26, 32-36.
119. Id. at 41-63.
120. Id. at 4-8.
121. See, e.g., id. at 4 (discussing difference between traditional and client-centered approaches).
122. See generally Clark D. Cunningham, A Tale of Two Clients: Thinking About Law as Language, 87 MICH. L. REV. 2459 (1989) (presenting case histories of miscommunications and failed communications between lawyers and clients);
123. Michelle S. Jacobs, People from the Footnotes: The Missing Element in Client-Centered Counseling, 27 GOLDEN GATE U. L. REV. 345 (1997) (asserting that client-centered models fail to address effects of race, class, and gender on lawyer-client interaction);
124. Ascanio Piomelli, Cross-Cultural Lawyering by the Book: Approaches of the Latest Clinical Texts and an Agenda for Exploration, 3 HASTINGS RACE & POVERTY L.J. (forthcoming Fall 2006) (manuscript on file with authors) (critiquing leading texts and encouraging further exploration of cross-cultural issues).
125. See infra note 137 for a list of sources discussing differences among attorneys and clients and practices to bridge such differences.
126. For some notable exceptions, see generally ANN M. HARALAMBIE, THE CHILD'S ATTORNEY: A GUIDE TO REPRESENTING CHILDREN IN CUSTODY, ADOPTION, AND PROTECTION CASES (1993);
127. GARY SOLOMON, THE LEGAL AID SOCIETY, JUVENILE RIGHTS DIVISION, MANUAL FOR LAW GUARDIANS IN CHILD PROTECTION PROCEEDINGS (1991);
128. Katherine Hunt Federle. The Ethics of Empowerment: Rethinking the Role of Lawyers in Interviewing and Counseling the Child Client. 64 FORDHAM L. REV. 1655 (1996);
129. Nancy W. Perry & Larry L. Teply, Interviewing, Counseling, and In-Court Examination of Children: Practical Approaches for Attorneys, 18 CREIGHTON L. REV. 1369 (1985).
130. See generally KOH PETERS, supra note 58 (arguing that lawyers should understand minor clients in context of clients' lives).
131. Id. § 3-2(b)(3)(i), at 66-68. In addition to the default of expressed interests advocacy, Koh Peters sets forth two other "default" positions. The first, which she terms the "relationship default," states that a lawyer for children should meet her clients as soon as possible in order to forge a meaningful relationship, ascertain the clients' wishes and goals, and explain the lawyer's role and the legal context. Id. § 3-2(b)(1), at 61-63. The second, which she terms the "competency default," calls for the lawyer to assume that even young children are competent to make some decisions on their own behalf if the lawyer engages in developmentally appropriate interviewing and counseling. Id. § 3-2(b)(2), at 63-66. "The competency default helps lawyers to individualize every representation, in a way that allows the maximum possible participation of the client so that the representation reflects the uniqueness of each child client." Id. § 3-2(b)(2), at 65-66 (emphasis omitted).
132. KOH PETERS, supra note 58, § 2-3(b), at 38 nn.9-10.
133. Id. § 3-2(b)(4), at 69.
134. Id. § 3-2(b)(3)(ii), at 68-69.
135. See id. § 4, at 92-129 (setting forth multistep process for entering and understanding child's world).
136. The two stages not included in this discussion are pursuing the client's goals through advocacy and closure. Id. § 8, at 367-420.
137. KOH PETERS, supra note 58, §§ 4-1 to 4-2(c), at 92-98.
138. Id. § 4-2(c)(1)-(2), at 98-105.
139. Id. §§ 4-3 to -4, at 105-29.
140. See generally id. § 7, at 329-66 (applying and adapting client-centered interview techniques for young children and, to a much lesser extent, older children).
141. Id. § 7-2(c)-(d), at 334-37.
142. KOH PETERS, supra note 58, § 7-2(d)(1), at 345.
143. See infra Part V for a discussion of how overburdened lawyers for adolescents might make the necessary time to engage in this process. See generally Stephen Ellmann, Fast Talking (N.Y. Law Sch. Clinical Res. Inst., Paper No. 05/06-10, 2005), available at http://ssrn.com/abstract= 871747 (proposing means to achieve an "efficient client-centered" practice).
144. KOH PETERS, supra note 58, § 7-2(d)(5), at 347-51 (acknowledging importance of advice giving but urging lawyers to engage in self-reflection and evaluation to guard against client manipulation or coercion).
145. Id. § 7-2(d)(1)-(4), at 345-47.
146. Id. § 7-2(d)(5), at 347-51.
147. Id. § 7-4, at 354-66.
148. Id. § 7-2(c), at 334-36.
149. See infra Part IV for a discussion of the adaptations to Koh Peters's model that are necessary to make it useful in juvenile delinquency matters and with older adolescents.
150. See JUVENILE DEFENDER NOTEBOOK, supra note 61, at 21-28, 176-77, 181-82 (providing fictional attorney-client dialogues illustrating various interview techniques discussing plea negotiations).
151. Id. at 181-82.
152. See, e.g., RANDY HERTZ ET AL., 1 TRIAL MANUAL FOR DEFENSE ATTORNEYS IN JUVENILE COURT § 2.03, at 13-14 (1991) (discussing role of defense counsel in delinquency cases in light of existing ethical standards).
153. See Ellen Marrus, Best Interests Equals Zealous Advocacy: A Not So Radical View of Holistic Representation for Children Accused of Crime, 62 MD. L. REV. 288, 294, 334-60 (2003) (introducing concept of "holistic lawyering" for juvenile defenders).
154. Henning, supra note 12, at 315-22.
155. Clinical scholarship has tended to view the collaborative model as a variation on the theme of client centeredness. See, e.g., Kotkin supra note 87, at 14-15 (surveying texts that have discussed and provided minor variations to client-centered approach).
156. Henning, supra note 12, at 317 (footnote omitted); see also Buss, Role of Lawyers, supra note 12, at 243, 256-61 (positing that effective relationship building enhances the value of attorney teaching, and therefore, may lead to better decision making by clients).
157. Robert Dinerstein and Stephen Ellmann, among others, have debated the value and appropriateness of advice giving. Ellmann, for example, has argued that lawyers who refuse to give advice, even when it is knowingly sought by the client, deny the client full autonomy. Stephen Ellmann, Lawyers and Clients, 34 UCLA L. REV. 717, 745-46 (1987). Dinerstein, on the other hand, counters that encouraging advice giving may well promote paternalism.
158. Robert Dinerstein, Client-Centered Counseling: Reappraisal and Refinement, 32 ARIZ. L. REV. 501, 570 (1990). Dinerstein "would have the lawyer start with the premise that the client does not need the lawyer's advice, at least at the beginning of the lawyer-client relationship" and only finds it appropriate for the attorney to offer suggestions and advice in limited circumstances. Id. at 570. Although both of these writers assume the client to be an adult, the questions they pose apply with even greater force to adolescents, whose developmental status renders them both in greater need of guidance, and at the same time, more vulnerable to overreaching.
159. The ideas in this Part are intended for all attorneys representing adolescents in the child welfare and juvenile justice arenas, regardless of what approach to advocacy they may choose to adopt or be statutorily instructed to follow.
160. Obviously, the amount of time needed will depend on the complexities of the case at hand; external factors, such as the judge and other "players;" and, of course, the unique and individual needs of each client.
161. A full discussion of what law offices and attorneys can do to attack this enduring and serious problem follows in Part V.
162. See Buss, Role of Lawyers, supra note 12, at 262 (concluding that attorneys must dedicate more time to establish professional friendships in order to facilitate a client's competence);
163. Melinda G. Schmidt et al., Effectiveness of Participation as a Defendant: The Attorney-Juvenile Client Relationship, 21 BEHAV. SCI. & L. 175, 193 (2003) (recommending attorneys be informed of potential adolescent deficits, be provided with instruction on how to be an effective counselor, and be afforded time to develop beneficial professional relationships).
164. This sentence may not be entirely accurate because in some jurisdictions attorneys are mandatory reporters of child abuse. See Adrienne Jennings Lockie, Salt in the Wounds: Why Attorneys Should Not Be Mandated Reporters of Child Abuse, 36 N.M. L. REV. 125, 127-28 (2006) (noting that seven states require attorneys to report child abuse and fifteen states require reports from any person who learns of abuse). In addition, the professional responsibility rules in some states mandate disclosure under certain circumstances. For example, the New Jersey Rules of Professional Conduct require a lawyer to breach confidentiality in order to prevent the client "from committing a criminal, illegal or fraudulent act that the lawyer reasonably believes is likely to result in death or substantial bodily harm or substantial injury to the financial interest or property of another" or to prevent the client "from committing a criminal, illegal or fraudulent act that the lawyer reasonably believes is likely to perpetrate a fraud upon a tribunal." N.J. R. PROF'L CONDUCT 1.6(b)(1)-(2) (2004).
165. Marrus, supra note 120, at 301-02 (noting that many children do not understand the role or function of an attorney); see also Emily Buss, "You're My What?" The Problem of Children's Misperceptions of Their Lawyers' Roles, 64 FORDHAM L. REV. 1699, 1707 (1996)
166. [hereinafter Buss, You're My What?] (remarking that an attorney is not a figure with whom children are familiar).
167. Buss, You're My What?, supra note 130, at 1707.
168. Koh Peters finds it "helpful for the lawyer to remember his or her own interactions with a new professional during a time of crisis." KOH PETERS, supra note 58, § 4-2, at 93; see also Buss, You're My What?, supra note 130, at 1707-08 (noting that a child's first interaction with lawyer should not be unpleasant).
169. Buss, You're My What?, supra note 130, at 1707 n.24. Even youth who have had prior experiences with attorneys and the juvenile justice system have been found to misunderstand, as well as mistrust, their attorneys and the proceedings at hand. Schmidt et al., supra note 128, at 192. These authors studied youth and adults involved with the juvenile justice and criminal systems and found that prior experience with these systems did not "provide participants with a better working knowledge of how to most effectively utilize their attorneys." Id. Such conclusions are consistent with earlier studies by Thomas Grisso, wherein he reported that adolescents having experience with the juvenile justice system "continue to misunderstand and mistrust the attorney's role as a confidential advocate." Id. (citing THOMAS GRISSO, JUVENILES' WAIVER OF RIGHTS: LEGAL AND PSYCHOLOGICAL COMPETENCE 118 (1981); Grisso, supra note 8, at 1151-52).
170. See BINDER ET AL., supra note 73, at 21-23 (discussing expectations clients have regarding their relationship with their attorney).
171. Id. at 22.
172. In her text, Representing Children in Child Protective Proceedings, Koh Peters has an excellent chapter entitled, "Representing the Child-in-Context: Five Habits of Cross-Cultural Lawyering," where she instructs attorneys how to develop an approach to advocacy that is culturally competent. KOH PETERS, supra note 58, § 6, at 241-327. This chapter involved a collaborative effort with Susan Bryant. Id. § 6-1, at 247. Together, they developed five habits that attorneys must acquire in order to begin to overcome cultural barriers and biases. Id. § 6-1, at 247-49; see also Susan Bryant, The Five Habits: Building Cross-Cultural Competence in Lawyers, 8 CLINICAL L. REV. 33, 64-78 (2001) (outlining five lawyering skills focusing on cultural awareness). For a comprehensive listing of sources devoted to the topic of recognizing differences among attorneys and clients and urging attorneys and law students to develop practices that begin to bridge such differences, see Piomelli, supra note 94 (manuscript at 2). In addition, several of the recent texts or text revisions on client-centered lawyering have a focus on representing clients from differing cultures. BINDER ET AL., supra note 73, at 32-40; COCHRAN ET AL., supra note 88, §§ 11-2 to -6, at 204-21; KRIEGER ET AL., supra note 88, at 49-57. But see Piomelli, supra note 94 (manuscript at 3) (critiquing currently available textbooks and suggesting an agenda for further study of a cross-cultural approach to lawyering).
173. See supra Part III.C for a description of the seven inhibitors set forth in BINDER ET AL., supra note 73, at 19-26.
174. See BINDER ET AL., supra note 73, at 21-23 (referring to the issue of clients coming with preexisting notions of what constitutes proper behavior as the "phenomenon" of "role expectations"); KOH PETERS, supra note 58, §§ 4-2, 4-2(c)(2), at 92-94, 103 (recommending that the attorney try to see herself as the client does).
175. KOH PETERS, supra note 58, § 4-2(b), at 97.
176. Buss, Role of Lawyers, supra note 12, at 247 (stressing how such an understanding may be difficult to reach).
177. KOH PETERS, supra note 58, §4-2(b), at 97.
178. Bonnie & Grisso, supra note 7, at 91 ("[V]iewing the attorney as an authority figure could lead to distorted communication and could also prevent the adolescent from appreciating his or her own role as an autonomous decision maker."); see also Buss, Role of Lawyers, supra note 12, at 247 (noting how difficult it is for an adolescent or child to understand the attorney's role); Henning, supra note 12, at 273 (concluding that "children are generally socialized to expect adults to make decisions for them and may defer to the lawyer by default").
179. Buss, Role of Lawyers, supra note 12, at 248.
180. See supra Part III for a discussion of the lawyer's role and ethical obligations.
181. Buss, You're My What?, supra note 130, at 1719. In some jurisdictions, attorneys are statutorily mandated to adopt a best interests approach. In others, attorneys are specifically instructed to act as attorneys. In still others, there are no specific guiding principles other than the rules of legal ethics, recommendations from numerous scholarly gatherings, and published standards from organizations such as the American Bar Association.
182. For a comprehensive discussion on the confusion over what role attorneys representing children in child protection proceedings should assume, see KOH PETERS, supra note 58, §§ 2-3 to 2-4, at 31-55 and Buss, You're My What?, supra note 130, at 1716-49. For a listing of many of the leading articles on the representation of children in child protection proceedings during the last twenty-five years, see Mandelbaum, supra note 60, at 3 n.8. For a similar discussion in the juvenile delinquency context, see Henning, supra note 12, at 249-80.
183. Attorneys' natural propensities to protect children and adolescents can lead to manipulative and coercive practices in the name of safety and security. Buss, You're My What?, supra note 130, at 1719; see also KOH PETERS, supra note 58, § 7-2(d)(5), at 349 (stressing that lawyer should confront what he or she thinks is in child's best interests prior to counseling child, which will help the lawyer avoid guiding child to what he or she thinks is best rather than what the child wants); id. § 4-2(b), at 97 (stating that attorney's explanation of her role to child client should comport with her own understanding of her role).
184. Buss, You're My What?, supra note 130, at 1699 (finding that many clients in child-protection proceedings assume attorney will take whatever position attorney thinks appropriate and that attorney will defer to child welfare agency against child's own wishes).
185. Id. at 1726 (maintaining that "children generally have no reason to expect that adults will keep their secrets" and noting that many children are involved with the child welfare system "precisely because they shared secret information about their parents' misdeeds with doctors, teachers, or social workers" (emphasis added)); Theo S. Liebmann, Confidentiality, Consultation, and the Child Client, 75 TEMP. L. REV. 821, 847 (2002) (remarking that by promising confidentiality "a lawyer signals in a particularly powerful way that she is different" from other adults with whom the child may have had prior relationships and noting that when lawyer keeps promise of confidentiality, the lawyer takes the first step in establishing the trusting relationship necessary for effective advocacy).
186. See KOH PETERS, supra note 58, § 4-2(b), at 97 (stating that adolescent must be continuously reassured of attorney's duty of confidentiality); Henning, supra note 12, at 272 (citing to studies that show children mistrust attorneys and misunderstand confidentiality and client loyalty concepts).
187. See supra note 129 for an example of a state mandatory disclosure rule.
188. "[M]any lawyers rarely fully advise their clients of these rules and . . . many clients significantly misunderstand the confidentiality rules." COCHRAN ET AL., supra note 88, §4-6(a)(1), at 70 (citing to Fred C. Zacharias, Rethinking Confidentiality, 74 IOWA L. REV. 351, 352-56 (1989)); see also KOH PETERS, supra note 58, § 4-2(b), at 97 (emphasizing need to be clear and to reassure the client repeatedly).
189. KOH PETERS, supra note 58, § 4-2(b), at 97.
190. See Buss, You're My What?, supra note 130, at 1712 (emphasizing that without child client's comprehension of attorney's role, little incentive exists for a child to develop the attorney-client relationship necessary for open communication, especially regarding confidential matters and decision making).
191. Buss, Role of Lawyers, supra note 12, at 248. Conversely, an adolescent who learns and truly understands that her opinions are valued may make a greater effort to participate in the process. Id.; see also Henning, supra note 12, at 272-73 (noting that a client who fails to understand attorney's role will not work as effectively with her lawyer, particularly because the adolescent may withhold information from attorney).
192. Henning, supra note 12, at 273. A recent study of over two hundred adolescents involved in the juvenile delinquency system and over one hundred adults involved in the criminal system revealed that adolescents are more likely than adults to identify and select options such as refusing to talk to an attorney and denying involvement in the offense. Schmidt et al., supra note 128, at 185-86, 191.
193. Ann Tobey et al., Youths' Trial Participation as Seen by Youths and Their Attorneys: An Exploration of Competence-Based Issues, in YOUTH ON TRIAL, supra note 7, at 225, 233 (surveying youths and finding that it is important to them to develop relationships with and feel connections to their attorneys). Buss believes that it is so important for an attorney and adolescent client to develop a close relationship that she recommends that the lawyer try to instill a "friendlike trust" and build a "professional friendship."
194. Buss, Role of Lawyers, supra note 12, at 255-56. She suggests the lawyer do this by (1) involving the child client in trial preparation, (2) demonstrating firsthand her commitment to confidentiality and autonomy, and (3) engaging the child client in role-playing activities. Id. at 256-59. In fact, she finds that without the relationship, there is no "effective client control of representation."
195. Id. at 259; see also COCHRAN ET AL., supra note 88, § 9-4, at 179-82 (excerpting ANTHONY T. KRONMAN, THE LOST LAWYER 129-32 (1993), which discusses the role of a collaborative lawyer as friend).
196. "[L]awyers for juveniles should be required to have a solid grasp of child and adolescent psychological development and an understanding of how developmental factors may affect the attorney-client relationship. Moreover, they should be given concrete methods to improve the nature of interviewing, counseling, and decision making with juvenile clients." Schmidt et al., supra note 128, at 193 (citations omitted); see also Buss, Role of Lawyers, supra note 12, at 255 (commenting that the "client-lawyer relationship is so far from [an adolescent's] understanding of how children and adults relate"); Henning, supra note 12, at 272 (concluding that a child's "decision making capacity may be inhibited when the attorney fails to earn his client's trust").
197. KOH PETERS, supra note 58, § 7-2(d), at 336; see also Bonnie & Grisso, supra note 7, at 91 (noting that "[o]ppositional behavior toward authority could impair the adolescent's ability to trust the defense attorney and to assist in his or her own defense"); Buss, Role of Lawyers, supra note 12, at 248 (finding that a child will perceive attorney counseling as adult commands rather than as advice if a strong attorney-client relationship is not initially established); Henning, supra note 12, at 284 (concluding that children will make well-reasoned decisions when counseled by an attorney, even though they might be inclined to make poor decisions in other settings).
198. COCHRAN ET AL., supra note 88, § 4-6(a)(1), at 70 (concluding that a proper understanding of confidentiality can only be established when carefully planned explanations are given to clients, which will then result in trust and competence).
199. Henning, supra note 12, at 273 (stating that few children understand ability to direct attorney's work).
200. See KOH PETERS, supra note 58, § 4-2, at 93-94 (stating that lawyer should consider how difficult it is to discuss traumatic situations herself when first meeting the child client). The importance of expressing empathy is also discussed in Part IV.G infra.
201. See KOH PETERS, supra note 58, § 7-2(d)(1), at 345 ("Action planning should begin where the child is and should lead in the direction the client wants to go."). Action planning is Koh Peters's first principle of five for effective counseling. Id. The other four are as follows (2) the counseling process should concretely link requirements with the client's available options; (3) the counseling process should incorporate methods that are meaningful and also constructive for the client; (4) the attorney should be as clear as possible, but no clearer; and (5) the attorney should counsel the client about her own best interests. Id. § 7-2(d)(1)-(5), at 345-51. Koh Peters also recommends "meet[ing] the child where she is" as one of her ten principles of good communication. Id. § 4-2(c)(2), at 100-01. Finally, allowing the adolescent to control the agenda may also entail discussing subjects the attorney considers irrelevant and meeting the client in locations other than the attorney's office or the courthouse, where possible. Id. at 101; see also COCHRAN ET AL., supra note 88, § 2-3, at 16 (stating that when an attorney takes control of client interviewing, it robs clients of their autonomy because it prohibits them from setting their own objectives).
202. Dinerstein, supra note 124, at 589-94.
203. Focusing on the attorney-client relationship generally, John Leubsdorf opined that "[i]t is difficult to conduct a dialogue between equals . . . when one monopolizes the legal knowledge and the other's interests are at stake." Id. at 582 (quoting John Leubsdorf, Three Models of Professional Reform, 67 CORNELL L. REV. 1021, 1050 (1982)). Kristin Henning, in her piece on the appropriate model of representation of youth involved in a juvenile delinquency proceeding, discusses the omnipresent power imbalances between attorneys and child clients and the natural inclination on the part of the children to defer to adults. Henning, supra note 12, at 310.
204. KOH PETERS, supra note 58, §4-3(a)(3), at 111-12.
205. See Cauffman & Steinberg, Cognitive and Affective, supra note 18, at 1775 (stating that peer pressure peaks at fourteen or fifteen and then declines); Scott & Steinberg, supra note 18, at 813 (stating that peer pressure peaks at age fourteen and then declines);
206. Steinberg & Cauffman, Maturity of Judgment, supra note 18, at 254 (stating that by sixteen years of age, children rely less on peer pressure in making decisions). See supra Part II.A for further discussion of peer influence on adolescent decision making.
207. Scott, supra note 46, at 304.
208. Id.
209. See Cauffman & Steinberg, Cognitive and Affective, supra note 18, at 1772 (stating that studies have shown that differences between priorities of adolescents and adults are reason for adolescents' risky decision making). For further discussion of how adolescents' priorities affect adolescent decision making, see supra Part II.G.
210. Peer influences also may be significant issues at dispositional hearings.
211. See Henning, supra note 12, at 273 (explaining that adolescents might allow peers to influence decisions they make regarding their cases).
212. See id. at 309-11 (finding little difference between directive or coercive attorneys and those who take a best interests approach to their advocacy in that both act in paternalistic ways).
213. Cauffman & Steinberg, Cognitive and Affective, supra note 18, at 1775 (emphasis added);
214. see also Steinberg & Cauffman, Maturity of Judgment, supra note 18, at 254 (noting lack of studies on whether those "high in self-reliance or in their ability to resist peer pressure actually are more likely to make competent decisions").
215. See KOH PETERS, supra note 58, § 7-2(c), at 334-36 (stressing fact that options may be limited).
216. See id. § 1, at 1-19 (discussing importance of learning about the "child-in-context").
217. See Henning, supra note 12, at 284-85, 287-88 (emphasizing that judges ultimately make the decisions in juvenile delinquency proceedings).
218. BINDER ET AL., supra note 73, at 275-81.
219. See MODEL RULES OF PROF'L CONDUCT R. 1.2 (1983) (defining scope of representation and allocation of authority between client and lawyer and requiring attorney to abide by client's decision concerning objectives of representation).
220. See id. R. 1.14 (discussing protective actions attorney can take when attorney reasonably believes client has diminished capacity).
221. See William A. Kell, Ties that Bind?: Children's Attorneys, Children's Agency, and the Dilemma of Parental Affiliation, 29 LOY. U. CHI. L.J. 353, 366 (1998) (asking a similar question).
222. "While adolescents may seem more 'independent' than before, their decisions are still determined by parental wishes . . . ." Cauffman & Steinberg, Cognitive and Affective, supra note 18, at 1778. "Studies of adolescents' susceptibility to influence have found that the salience of different types of social influence varies as a function of topic: parents are more influential in matters of religion, educational plans, occupational choice, or other 'deep' issues . . . ." Id. at 1774-75.
223. Kell, supra note 180, at 355.
224. Id. at 356.
225. See id. at 369-70 (stating that child's decision to ask parents for guidance should not necessarily be grounds for attorney to consider child as impaired because parent-child bond is important and may send message to child that it is not).
226. Id. at 373-74.
227. See id. at 357 (noting that "exercises in power do not always run in one direction").
228. See BASTRESS & HARBAUGH, supra note 88, at 273-82 (discussing reasons that lawyers are reluctant to confront clients and ways in which lawyers can effectively confront clients in order to "(1) enhance client self-exploration and self-understanding; (2) spur the client to action; and (3) ensure accuracy or lawyer understanding"); BINDER ET AL., supra note 73, at 265-68 (discussing methods lawyers can use to gather information from clients who are reluctant to discuss their situation, have difficulty communicating, or are lying).
229. See BASTRESS & HARBAUGH, supra note 88, at 273 (stating that attorney-client confrontation is not a "frontal attack," but instead is a "normal, nondisruptive element in your discussion with a client").
230. Id. at 276-78.
231. Role playing and confrontation are consistent with Koh Peters's approach to lawyering. See KOH PETERS, supra note 58, § 7-2(d)(3)-(5), at 346-51 (stating that lawyers should use role play or other forms of artistic expression to encourage child clients to discuss their wishes and lawyers should be honest about child client's best interests). She encourages the lawyer to discuss candidly with the client the lawyer's assessment of the client's best interests, even when that assessment conflicts with the client's stated wishes. Id. § 7-2(d)(5), at 347-51.
232. BINDER ET AL., supra note 73, at 266-67.
233. BASTRESS & HARBAUGH, supra note 88, at 278-82; BINDER ET AL., supra note 73, at 266-67.
234. BINDER ET AL., supra note 73, at 266-67; see also Binny Miller, Give Them Back Their Lives: Recognizing Client Narrative in Case Theory, 93 MICH L. REV. 485, 563-70 (1994) (discussing ways in which lawyers can encourage client participation in developing case theory and importance of clients' contributions to case theory).
235. COCHRAN ET AL., supra note 88, § 1-4, at 6.
236. See Jean Koh Peters, The Roles and Content of Best Interests in Client Directed Lawyering for Children in Child Protective Proceedings, 64 FORDHAM L. REV. 1505, 1514 (1996) (stating that courts generally use best interests standard for abuse, neglect, and dependency proceedings as well as for termination of parental rights proceedings).
237. The following guidance has been suggested to defense attorneys in juvenile delinquency matters: "Before you enter the courtroom and speak on [the client's] behalf about anything, find out what her goals are for the hearing. Explain the possibilities for what you will say as well as how you will present the arguments and let her determine the best course of action." JUVENILE DEFENDER NOTEBOOK, supra note 61, at 28.
238. See Cauffman & Steinberg, Cognitive and Affective, supra note 18, at 1783-85 (discussing how adolescents are most egocentric during early adolescence and gradually become less egocentric by age seventeen or eighteen).
239. Cf. Buss, Role of Lawyers, supra note 12, at 243, 254-62 (proposing that attorneys should spend more time developing a professional friendship with their child client in an effort to increase the child's adjudicative competence, which will help the client to participate in the litigation process).
240. See id. at 256 (noting that a lawyer can "reinforce these real-life lessons about the mechanics and obligations of the lawyer's role through role-playing activities").
241. Cf. Henning, supra note 12, at 285 (concluding that excluding a client from the process may make them less likely to "follow through on necessary steps" and comply with court orders).
242. See Bonnie & Grisso, supra note 7, at 91 (reminding attorneys that they may need to explain criminal proceedings to their adolescent clients, "including the nature of a right").
243. See KOH PETERS, supra note 58, § 4-2(c)(2), at 101 (stressing importance of using words that client will understand and presenting them in a comprehensible way); Tobey et al., supra note 156, at 232 (noting that "English as a second language" and the "vernacular of the courtroom" make it difficult for youth to understand the proceedings in which they are involved).
244. See, e.g., KOH PETERS, supra note 58, § 4-2(a), at 94-96 (stressing importance of educating child clients about juvenile justice proceedings and the lawyer's role); Buss, Role of Lawyers, supra note 12, at 247-49 (stating that lawyers should educate child clients about the juvenile justice system because these clients will then be able to communicate more effectively with the lawyer);
245. Emily Buss, Confronting Developmental Barriers to the Empowerment of Child Clients, 84 CORNELL L. REV. 895, 955-61 (1999)
246. [hereinafter Buss, Confronting Developmental Barriers] (stating that lawyer's role of advocate should resemble that of teacher where lawyer
247. See THOMAS GRISSO, EVALUATING JUVENILES' ADJUDICATIVE COMPETENCE: A GUIDE TO CLINICAL PRACTICE 103-05 (2005) (discussing importance of providing incompetent youths with information regarding the juvenile justice system); Henning, supra note 12, at 273 (cautioning that an adolescent client may not be forthcoming with important information because "he or she . . . does not fully understand the legal rights at stake").
248. KOH PETERS, supra note 58, § 4-2(a), at 94-96; Buss, Role of Lawyers, supra note 12, at 247-49;
249. Buss, Confronting Developmental Barriers, supra note 203, at 955-61. See supra note 203 for examples of analyses of the lawyer's relationship with younger clients.
250. See AM. BAR ASS'N, STANDARDS OF PRACTICE, supra note 61, standard I-B-1(5) (1996) (stating that "basic obligation" of attorneys who represent children is to "[c]ounsel the child concerning the subject matter of the litigation, the child's rights, the court system, the proceedings, the lawyer's role, and what to expect in the legal process").
251. See Dinerstein, supra note 124, at 509, 567-70 (discussing client-centered counseling model literature and finding that commentators do not agree with the "lawyer's unwillingness to give his client advice" under the client-centered counseling model because commentators believe that it "compromises [the client's] autonomy by denying her access to what might be an extremely important source of information, the lawyer's views"). See supra note 124 for a summary of the debate between Robert Dinerstein and Stephen Ellmann concerning the appropriateness of advice giving within the client-centered model. See also Henning, supra note 12, at 313-17 (discussing many limitations of client-centered model).
252. See BINDER ET AL., supra note 73, at 368-71 (permitting lawyers to give advice under client-centered model, as long as the lawyer knows the client well enough to understand the "client's subjective values").
253. KOH PETERS, supra note 58, § 7-2(d)(5), at 347 (citing Ellmann, supra note 124, at 745-46, 761, 767-68) (emphasis added).
254. See Dinerstein, supra note 124, at 580-81 (finding complete neutrality to be impossible and noting that lawyers using client-centered counseling model may not realize that they are not neutral while others will, and, as a result, those lawyers who believe themselves neutral will be more likely to influence their clients).
255. See Henning, supra note 12, at 310 (noting that differences in age, expertise, and child's natural inclination to defer to adults present a particularly great opportunity for coercion because of the inherent power dynamics between child and attorney).
256. KOH PETERS, supra note 58, § 7-2(a)-(c), at 333-36; id. § 7-2(d)(1)-(5), at 345-51. Koh Peters also provides several concrete suggestions aimed at avoiding such tendencies. Among these are the need to listen; to be empathic (the lawyer should try to put herself in the shoes of the child client and see the client's perspective of the attorney, the situation at hand, and life in general); to "speak at the child's level," both physically and linguistically; to be oneself; and to be respectful. Id. § 4-2(c), at 98-105.
257. See Henning, supra note 12, at 309-10 (noting that attorneys can influence decisions by their use of language, how they choose to frame issues, and their presentation of options and consequences, including what they choose to emphasize).
258. Id.; see also BINDER ET AL., supra note 73, at 340-46 (discussing techniques to use when identifying alternative solutions); Dinerstein, supra note 124, at 584-603 (emphasizing that attorney's perspective should not dominate discussion of alternatives).
259. See BASTRESS & HARBAUGH, supra note 88, at 235-49 (discussing how a lawyer should prepare for client counseling session to ensure that client receives the necessary information to make a decision); BINDER ET AL., supra note 73, at 300-01 (discussing why neutrality is important).
260. For a discussion of children's language skills, see ANNE GRAFFAM WALKER, HANDBOOK ON QUESTIONING CHILDREN (1995), reprinted in KOH PETERS, supra note 58, app. C.3, at 731, 745-47.
261. See, e.g., Elizabeth Scott, Criminal Responsibility in Adolescence: Lessons from Development Psychology, in YOUTH ON TRIAL, supra note 7, at 291, 302-03 (elaborating on scope of adolescents' cognitive capacity to understand the legal process and stating that adolescents have greater ability to make decisions than younger children and begin to have same cognitive abilities as adults);
262. Cauffman & Steinberg, Cognitive and Affective, supra note 18, at 1768, 1770 (noting that some studies show "there are few, if any, differences between the cognitive processes of adults and adolescents").
263. See Buss, Confronting Developmental Barriers, supra note 203, at 957 (stating that lawyers can help "developmentally imposed obstacles" by educating the child regarding trial process).
264. Buss, Role of Lawyers, supra note 12, at 254.
265. Id. at 254, 260-61; see also Henning, supra note 12, at 273 (stressing importance of trust in attorney-client relationship for child to openly communicate with attorney).
266. See supra Part IV for a discussion of appropriate strategies for developing the attorney-client relationship when the client is an adolescent.
267. See Buss, Role of Lawyers, supra note 12, at 260-61 (noting that lawyer's success in establishing a relationship will encourage the minor to listen to information and advice and will help the minor realize that the lawyer is trying to aid the minor's decision making).
268. See KOH PETERS, supra note 58, § 3-2(c)(2), at 72 (noting that it is more common for a lawyer to appear in court, at a critical meeting, or at a negotiation without the client when the client is a child than when the client is an adult).
269. See Buss, You're My What?, supra note 130, at 1760-61 (advocating for lawyers to include child clients in trial process because it helps child clients to understand trial process and their lawyer's role in that process and assists in building a relationship with their lawyer).
270. Buss, You're My What?, supra note 130, at 1757 (emphasis omitted).
271. See id. at 1753-55 (discussing scholars who acknowledge importance of instruction in learning but also recognize importance of interaction, activity, pictorial representation, and language).
272. See id. at 1755-58 (noting that children have no context to understand the lawyer's role and thus must experience it as participants and observers because they lack prior knowledge necessary for their comprehension of descriptive explanations).
273. But see id. at 1759 (pointing out that while court can provoke anxiety in children, avoiding court does not necessarily protect children from those anxieties).
274. See BASTRESS & HARBAUGH, supra note 88, at 258-65 (discussing importance of attorney's expression of empathy and understanding of client); BINDER ET AL., supra note 73, at 41-63 (discussing active listening and its importance in attorney-client relationships because it "demonstrat[es] understanding and reduc[es] misunderstanding").
275. See Ellmann, supra note 110, at 13-17 (discussing importance of attorneys listening to clients, asking open-ended questions of clients, and expressing empathy to clients).
276. BINDER ET AL., supra note 73, at 57-62. This "mirroring back" technique, which is not generally utilized in daily conversation, poses the danger of misidentifying the client's feelings. Id. at 52-54, 57-59. It also can come across as stilted or awkward in conversation. Id. at 55.
277. Id. at 48.
278. See id. at 48-49 (discussing that clients feel more comfortable with active listening because it conveys "non-judgmental acceptance" by mirroring the content and feelings of the client).
279. BINDER ET AL., supra note 73, at 48-49. For an excellent article on issues of transference and countertransference, see generally Rhoda Feinberg & James Tom Greene, Transference and Countertransference Issues in Professional Relationships, in KOH PETERS, supra note 58, app. E.1, at 913, 913-23 (defining transference as "a client's distortions in professional relationships where the client has expectations not grounded in current reality but on past personal history, self-image, adopted role in life, naive hopes, and expectations of a fairy tale outcome of self-validation, or perhaps a self-fulfilling prophecy of defeat").
280. See KOH PETERS, supra note 58, § 2-2(b), at 30-31 (discussing how important it is for lawyers not to transfer their own perceptions on to their clients).
281. See supra Part II.B for a discussion of adolescents' risk perception.
282. See Buss, Role of Lawyers, supra note 12, at 261 (explaining that adolescents may weigh the options differently than the lawyer, and if that is the case, suggesting that the "lawyer should take care in how forcefully she pushes to persuade her client to reweigh").