What is client-directed legal representation?
In client-directed representation, the client tells the lawyer what they want to happen in their case. After discussion and legal advice, the lawyer uses legal strategy to achieve the client’s goals. This is how lawyers are trained to represent clients during their legal education. Client-directed legal representation is the standard for adult clients in all areas of law (with narrow exceptions for disability or incompetency) and is the traditional ethical obligation in the attorney-client relationship.
Legal representation is client-directed when a licensed attorney follows the Model Rules of Professional Conduct and the client sets the goals of the representation. The American Bar Association sets the Model Rules of Professional Conduct and many states enact them to describe the ethical and professional responsibilities for the legal profession.
The National Association of Counsel for Children’s Recommendations for Legal Representation of Children and Youth in Neglect and Abuse Cases and the American Bar Association’s Model Act Governing the Representation of Children in Abuse, Neglect, and Dependency Proceedings endorse client-directed legal representation.
How does an attorney provide client-directed representation to a young person?
Client-directed attorneys develop a confidential attorney-client relationship, independently investigate the facts of the case and help their client understand the issues involved, such as applicable law or policies, legal options, and possible outcomes. After providing legal advice and counseling appropriate to the client’s developmental level, the attorney learns client’s hopes for the case and their client’s perspective on other possible outcomes (if their first choice is not possible or unlikely to be granted by the judge). At each stage of the case, attorneys explain to their client the type of hearing, and the types of decisions the judge may make. Attorneys must provide counsel and advice to authentically engage youth throughout the court process.
What occurs if a child or youth client asks for something unsafe or unreasonable?
Just as when representing an adult, an attorney receiving an unreasonable request from a young client would respond with extensive advising and counseling and not automatically advance the client’s initial desires. In very rare circumstances, the Model Rules of Professional Conduct authorize lawyers to reveal confidential information to the judge or seek the appointment of a guardian ad litem. Unsurprisingly, many children want to return to their home and families.
Why is there such fear that children and youth will want to return to their homes?
It is quite common for children to express a desire to return to their homes and families. This makes sense since, even in families where abuse or neglect is alleged, there is often still tremendous love, attachment and potential for lasting reunification. Preserving and reunifying families is the shared goal of all parties, the child protection system, and the court. Client-directed legal representation centers the child or youth throughout the court process so they can participate in their own court proceedings, inform the judge about conditions that will help make permanency possible and have their opinions considered by the judge making critical decisions.
Does client-directed representation require specialized training?
Yes. Specialized training is necessary to prepare attorneys to provide high-quality legal representation in child protection cases. Before appointment and routinely throughout their practice of child welfare law, an attorney should receive specialized training on applicable federal and state laws and regulations, court rules, ethical duties, trial skills, relevant social science, and more. Training on interviewing skills, trauma, and child and adolescent development is important for all attorneys in these cases, and especially helpful for client-directed attorneys.
Do youth receive client-directed advocacy in other areas of law?
Youth in juvenile justice proceedings (where they are accused of crimes) are constitutionally guaranteed client-directed legal representation regardless of age. Youth in immigration proceedings and youth who are parents and involved in custody or child support matters related to their children are also appointed client-directed legal counsel.
What professional duties does a client-directed attorney owe their client?
The Model Rules of Professional Conduct list the duties of an attorney such as competence, diligence, loyalty, and confidentiality. Attorneys licensed to practice law must follow these rules as enacted by their state.
If an attorney provides client-directed legal representation, who will ensure that decisions are made in the child’s best interest?
Judges ultimately determine which course of action is in a child’s best interest. They weigh the evidence and arguments submitted by parties before making a best-interest determination. Attorneys for the child, parents, and agency, CASA volunteers, and guardians ad litem make recommendations to the judge on what is best for a child. The judge makes the final decision based on their own assessment.
Which states have adopted client-directed legal representation for children and youth?
For all children: Arizona, Connecticut, Louisiana, Massachusetts, Montana, Nevada, New Jersey, New York, Oregon, Vermont
For children of a certain age, competency, or special need: Alaska, Colorado, Florida, Idaho, Maryland, Minnesota, New Mexico, North Dakota, Oklahoma, Washington, Wisconsin
Why are states implementing the client-directed model of legal representation for youth experiencing foster care?
Children and youth are individuals with legal rights who require a trained attorney to protect those rights, give voice to their preferences, and champion their desired outcomes. They are well-situated to provide comprehensive and accurate information to the judge. Without client-directed representation, youth may be assigned advocates who introduce evidence and advance arguments that are in direct conflict with what they want and need. Client-directed legal representation also helps the attorney avoid making best-interest determinations that could be affected by personal bias.
How does client-directed legal counsel improve youth experience with the child protection court system?
The child’s perception of fairness is significantly shaped by the quality of their experiences– being treated with dignity and having their viewpoint heard—rather than the outcome alone. Like adult litigants, children and youth are more able to accept the outcome of court cases – even decisions they disagree with – if they perceive they have been heard in the process. Individuals with lived experience in the foster care system identify legal counsel as a key priority to protect young people’s rights and ensure access to necessary resources.
How do lawyers provide client-directed legal representation to very young clients?
Attorneys providing legal representation to very young clients respond to developmental competency as they would to adult clients with disabilities or varying degrees of competency. Attorneys assess whether the child can direct representation by considering their developmental stage, cognitive and emotional development, trauma history, expert opinions, and any observed or articulated formulation of the client’s position. Multidisciplinary partners, such as social workers, may assist attorneys in this analysis. If the attorney can reasonably ascertain the client’s position or case objectives, they represent the client in a normal client-lawyer relationship.
This aligns with the requirements of Model Rule of Professional Conduct 1.14 which says that “children as young as five or six years of age, and certainly those of ten or twelve, are regarded as having opinions that are entitled to weight in legal proceedings concerning their custody.” Children as young as 6, 10, or 12 receive a client-directed attorney when they are accused of a crime.
How do lawyers provide client-directed legal representation to babies or nonverbal children and youth?
When a client is not able to communicate, or the attorney is unable to ascertain their desires, the attorney should utilize the substituted judgment approach to guide legal representation as indicated by The American Bar Association’s Model Act Governing the Representation of Children in Abuse, Neglect, and Dependency Proceedings and National Association of Counsel for Children’s Recommendations for Legal Representation of Children and Youth in Neglect and Abuse Cases. Substituted Judgment for nonverbal or infant clients is guided by the lawyer’s understanding of what the client would request if they were able to verbalize their goals. This is distinct from the attorney’s own ideas of what is in a child’s best interest. It requires the attorney to “step into the client’s shoes.” Attorneys should make firsthand, trauma-informed, and culturally responsive observations of the client and seek guidance from collateral sources (family, supports, experts, and other professionals) to develop a substituted judgment position.
Does a client-directed model of legal representation satisfy the requirements of Child Abuse Prevention and Treatment Act of 1974 (CAPTA)?
Yes, client-directed legal representation is consistent with the requirements of CAPTA. The U.S. Department of Health and Human Services Children’s Bureau released relevant guidance on this topic in Adoption 2002: The President’s Initiative on Adoption and Foster Care, Guidelines for Public Policy and State Legislation Governing Permanency for Children. The Commentary to Guideline 15A indicates that appointing counsel for a child promotes the child’s “best interest” consistent with CAPTA. “…[B]ecause advocating the child’s wishes and preference could be seen as in the child’s best interests, serving the child’s best interests, and helping the court to better arrive at overall decisions that are best for the child.” No state with a client-directed attorney model has been deemed out of compliance with CAPTA.
Has client-directed legal representation been studied for efficacy?
Yes. Compared to youth who do not have attorney representation, children appointed client-directed attorneys experience better results; less time in foster care or group settings, shorter time to adoption or guardianship, and more successful reunifications. They are also 45% more likely to reunify with their parents, 30% less likely to change placements, and 65% less likely to change schools. A client-directed attorney can shorten the time a child is in the foster care system, meaning cost-savings for state and federal taxpayers.