Recommendations of the 1995 Fordham Conference on Ethical Issues in the Legal Representation of Children
64 FORDHAM L. REV. 1301-24 (1996) (minor formatting
changes have been made for consistency within the Nevada Law Journal). All rights
reserved.
OF THE FORDHAM
A lawyer appointed or retained to serve a child in a legal proceeding should serve as the child's lawyer. The lawyer should assume the obligations of a lawyer, regardless of how the lawyer's role is labeled, be it as guardian ad litem, attorney ad litem, law guardian, or other. The lawyer should not serve as the child's guardian ad litem or in another role insofar as the role includes responsibilities inconsistent with those of a lawyer for the child. The role of the child's lawyer will vary, however, depending on whether the child has capacity to direct the representation. The lawyer for a child who is not impaired (i.e., who has capacity to direct the representation) must allow the child to set the goals of the representation as would an adult client. When representing a preverbal child or a child who otherwise lacks capacity to direct the representation, a lawyer should make decisions in the representation in accordance with the Recommendations set forth in Part IV. When a lawyer believes that a verbal child may lack capacity to direct the representation, the lawyer's determination concerning the child's capacity should be guided by the Recommendations set forth in Part V. Whether representing an unimpaired child or an impaired or preverbal child, the child's lawyer should be guided by the Recommendations in Parts II, III, and VII, concerning interviewing and counseling, confidentiality, and conflicts of interest. On occasions when, contrary to the Recommendations of this Conference, a lawyer is required to serve as a child's guardian ad litem and in that role to undertake responsibilities that are inconsistent with those of a lawyer for a child, the lawyer should be guided by the Recommendations set forth in Part VI.
CONFERENCE ON
ETHICAL ISSUES
THE
LEGAL
REPRESENTATION OF
CHILDREN*
Reprinted with permission from 64 FORDHAM L. REV. 1301 (1996).
I. THE ROLE OF LAWYERS FOR CHILDREN
A.
1. Laws currently authorizing the appointment of a lawyer to serve in a legal
proceeding as a child's guardian ad litem should be amended to authorize instead the
appointment of a lawyer to represent the child in the proceeding.
2. Laws that require lawyers serving on behalf of children to assume
responsibilities inconsistent with those of a lawyer for the child as the client should be
eliminated.
1. When it is uncertain whether a lawyer has been appointed to represent a child as
the child's lawyer, to serve as the child's guardian ad litem, to serve in a dual lawyer/
guardian ad litem role, or to serve the child in some other role, the lawyer should
elect to represent the child as a lawyer. Similarly, when the lawyer is appointed to
serve in a role other than as lawyer, but it is unclear or unspecified what obligations
and responsibilities that role entails, the lawyer should assume the obligations and
responsibilities of a child's lawyer.
2. A lawyer should not serve as both a child's lawyer and guardian ad litem. When
a lawyer has been appointed to serve in both roles, the lawyer should elect to
represent the child as a lawyer and not to serve as guardian ad litem. If that is not
permissible, the lawyer should elect to decline the appointment where feasible.
The following is a nonexclusive list of Recommendations concerning how
lawyers should interview and counsel child clients.
I. Contact with child clients:
a. Every child should be seen except in those rare instances where it is
physically impossible for the lawyer to see the child.
b. A lawyer should not represent a communicative child on any substantive
matter before speaking with the child.
c. For all children, the lawyer should see the client as soon as possible and, in
most instances, before the first hearing. In certain instances-for example,
before an emergency hearing-the child's lawyer may proceed without seeing
the client, although in that event, the lawyer should at least see the child before
the next hearing.
2. Context of contact:
a. Contact with the child should occur where and when such contact is
comfortable for the child, not merely where and when it is convenient for the lawyer.
b. The lawyer should take into account the role of the environment and timing
in helping the child understand the lawyer's role and the court process.
3. Frequency of contact:
a. The lawyer should meet with the child at least prior to any substantive court
hearings and other proceedings or events at which important decisions are being
made regarding the child or which are relevant to the lawyer's representation of
the child.
b. The lawyer should meet with the child often enough to maintain and develop
the lawyer-client relationship.
4. Substance of contact with verbal child:
b.
Presence of others at the meeting:
i. In most instances, the lawyer should meet one-on-one with the client.
ii. The lawyer should e (...truncated)