CAFL Practice Tip of the Month – February/March 2016
Determining the Child’s Client’s Position
The obligations of child’s counsel are governed by the Massachusetts Rules of Professional Conduct. Rule 1.14 provides that “[w]hen a client’s capacity to make adequately considered decisions in connection with a representation is diminished, whether because of minority, mental impairment or for some other reason, the lawyer shall, as far as reasonably possible, maintain a normal client lawyer relationship with the client.” Mass. R. Prof. C. 1.14(a) (emphasis added). Only if the client is unable to make an adequately considered decision and the lawyer believes the client is at risk of substantial harm may counsel diverge from the normal client-lawyer relationship. Mass. R. Prof. C. 1.14(b) (emphasis added). CPCS has also developed standards for determining the child client’s position. See CAFL Trial Performance Standard 1.6.
If the child is incapable of verbalizing a position, child’s counsel may make a substituted judgment determination based on a thorough investigation of what the child would decide if the child were mature enough to express an adequately considered decision. Alternatively, counsel for a nonverbal client may seek appointment of a guardian ad litem/next friend to direct the course of the litigation.
If counsel decides to request a guardian ad litem to direct the course of litigation, counsel must take care to ensure that the court’s order clearly spells out the guardian ad litem’s role. This guardian ad litem is not an investigator, but a “next friend” who stands in the shoes of the child client and determines the course of the litigation.
In practice, few attorneys request a guardian ad litem/next friend for their child clients. Many attorneys find the guardian ad litem/next friend to be redundant and cumbersome. Appointment of a guardian ad litem/next friend does not relieve child’s counsel of the obligation to fully investigate and prepare the child’s case.
If the child is capable of expressing a preference, child’s counsel must advocate for the child’s expressed preference. The Standards provide only one exception to this rule: if counsel determines that the child is unable to make an “adequately considered decision” and that advocating for the child’s preference would place the child at risk of substantial harm. In such a circumstance, child’s counsel may choose any one of three options: advocate for the child’s expressed preference, develop a position based on the “substituted judgment” analysis, or seek appointment of a guardian ad litem/next friend to direct the course of the litigation.
There is no set age at which children magically become competent to direct their attorney’s representation. Instead, child’s counsel must look to the developmental stage the child has attained. Child’s counsel should consider the child’s cognitive ability, socialization, and emotional growth. Counsel should consider whether the child has mental or physical problems, such as Attention Deficit Disorder, substance abuse problems, or organic brain disease, that may impact the child’s perceptions or his or her ability to make decisions. The child’s ability to weigh choices and understand consequences will grow as the child matures. Thus, counsel must continually assess the child’s competence to make “adequately considered decisions” on the issues confronting the child. Practice Note: We recommend completing the “Determining Child Client’s Position – Flow Chart” on a regular basis and maintaining a copy in each child client’s file to ensure that counsel is properly determining and advocating for the child client’s position at each stage of the proceeding.
Counsel must examine the quality of the child’s decision-making process rather than the quality of the decision itself. The question for the attorney is not whether he or she agrees with the child or believes that the child has made a good choice. Rather, the lawyer must focus on howthe child arrived at his or her decision. Can the child articulate reasons for the decision? What factors has the child considered? Is there a logical relationship between the child’s position and the child’s stated reasons? Is the child’s position consistent over time? Does the decision conform with previous decisions and choices the child has made? Counsel should also consider whether other parties have sought to influence or coerce the child into taking a certain position, as well as being cognizant of loyalty binds that might make it difficult for the child to express his or her true desires. Is the child expressing a true preference or merely parroting what he or she has been told?
It should be noted that children may be quite capable of making certain decisions and unable to make others. A client who has the capacity to make a decision with short-term consequences and minor risks might not have the capacity to make a more significant, long term decision. For example, a child may be capable of weighing the pros and cons of having more sibling visitation but incapable of weighing the pros and cons of returning home or being adopted.
We understand that it is not always easy to determine a child client’s position. Attorneys in the CAFL Administrative Office are happy to discuss your case with you and help you brainstorm questions that should be asked or issues that need to be considered. For a list of staff attorneys who are currently assigned to assist attorneys representing children, please visit the “Professional Resources” page.