By: Peter Margulies
Lawyers, when representing children, are often confronted with
significant issues concerning confidentiality. Because children are
sometimes of insufficient capacity to make decisions in their best
interest, the lawyer may need to intervene on their client’s behalf
substituting her judgment for their client’s judgment. Although
recognizing in some instances it may be necessary for the lawyer to
substitute their views for the child client, the traditional view
of the lawyer as omniscient and the child client of questionable
competence trivializes the child’s views, as well as blurs the
roles that race, class and culture play in child welfare
decision-making.
The attorney, representing a child in abuse and neglect
proceedings, may often face the dilemma whether to disclose their
client’s confidences. While some jurisdictions mandate the
reporting of child abuse by lawyers, in contrast, some commentators
have asserted that the duty of confidentiality owed to children
should mirror the duty owed to adults. Bright-line ethical rules,
however, fail to account for the nuanced situations that these
attorneys are often in. This article, focusing on the
representation of children in abuse and neglect proceedings,
outlines a contextual model emphasizing the local competency view.
Under this view, the lawyer should examine the likelihood and
gravity of future harm, the child’s understanding of the
consequences, and the availability of better alternatives to the
current placement. Helping ensure that any disclosure is aligned
with the interests of the child, the attorney should actively
reflect on the strengths and limits of each player’s competence in
the child protective system, as well as the role of any biases
based on race, culture and class.
The first part of the article discusses the received wisdom on
the lawyer’s role in representing children, concentrating in part
on the impact of the ethical standards of the bar and the rulings
of courts, as well as the analysis of commentators on the child’s
decisional capacity and the scope of the lawyer’s duty of
confidentiality. The second part assesses the local competencies of
the various players in the child welfare arena including the child,
the child welfare agency, and the lawyer. Because of flaws in
cognitive and institutional dynamics, the separation of parents and
children is encouraged as opposed to reunification. The third part
describes the factors used in a local competency approach to
determine the appropriateness of disclosure.