April 9, 2009

Raising the Bar: Professionalism in Lawyers and Judges Dealing with Children

Photo by Naixin

Are professional responsibility standards leaving the needs of children out in the cold?

The plight of the children in Luzerne County brings into sharp focus the need for specific rules of professional responsibility for attorneys and judges involved with children, along with more appropriate sanctions for those who violate those rules. There is a need for an even higher standard of professional responsibility in dealing with children because they are largely voiceless in the system, and only heard through the voice of their attorneys.

In Children and the Ethical Practice of Law, 64 Fordham L. Rev. 1281, 1286 (1995), Bruce A. Green and Bernardine Dorhn write:

It is understandable that prevailing professional norms, as reflected, for example, in the Model Rules of Professional Conduct ("Model Rules"), may not provide any answers, or, if they do, may provide incomplete or inappropriate answers to important questions about how lawyers properly should serve children. By design, the Model Rules state principles broadly applicable to wide-ranging areas of practice, but rarely provide detailed or context-specific guidelines. They assume that lawyers will be able to apply the general principles in particular practice settings.
These are, of course, often erroneous assumptions. The legal profession needs specific rules of professional conduct that address the very unique needs of children in representation.

Theo S. Liebmann writes in his article Confidentiality, Consultation and the Child Client, 75 Temp. L. Rev. 821 (2002):
Today, practitioners and scholars in the field of child maltreatment recognize both that children's lawyers hold unique responsibilities which require abilities and skills more commonly ascribed to mental health professionals, and that competent representation by children's lawyers consequently requires interdisciplinary consultation. The unique responsibilities which children's lawyers must fulfill come in the form of ethical mandates, statutory requirements, and practice guidelines, and range from the implicit duty to communicate with a client in a developmentally appropriate manner,to the practice standard of advocating for appropriate social services on behalf of a client, to the explicit obligation to determine a client's best interests.
Confidentiality in child welfare law is certainly a prickly pear, because in most cases the client is unable to waive confidentiality and their caregivers may be compromised or have reason to withhold information. When child protective services has custody of the child, they then control the output of information, and law guardians may be at their mercy for receiving information, which is also not always optimal when there are adversarial issues between the law guardian and child protective services. Special confidentiality rules in the cases of child clients should be considered by state legislatures so that law guardians have free access to client information without the permission of the family or child welfare agency.

Confidentiality isn't the only matter of concern. Professional responsibility in dealing with child clients has been addressed by the ABA in their Standards of Practice for Lawyers Representing Children in Abuse and Neglect Cases. However, these standards or the principles embodied in them are not universally or even generally adopted into the professional responsibility codes of states or their bar associations. It is arguable that higher standards of professional responsibility should be in place for lawyers representing clients that are incapable of recognizing or voicing that they are being improperly treated due to their minority. The Model Rules call for competent representation of clients, but in cases of child clients sometimes the definition of competency can be unclear. Serious consideration and defining of competency in child representation should be a part of every state's rules of professional conduct.

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