Counseling Counsel for Children.

• Date: 01 May 1999
• Author: Guggenheim, Martin

REPRESENTING CHILDREN IN CHILD PROTECTIVE PROCEEDINGS: ETHICAL AND PRACTICAL DIMENSIONS. By Jean Koh Peters. Miamisburg, Ohio: LEXIS. 1997. Pp. 917. $85.

INTRODUCTION

You are a lawyer working in juvenile court, representing children in proceedings in which their parents are accused of being unfit. Your clients range in age from newborns to seventeen-year-olds. At any one time you have 125 active cases on your docket. You work hard at your job, and you believe deeply in the rights of the children you represent. Occasionally, it occurs to you that you don't really have as good a sense as perhaps you should of your precise role and how you ought to discharge your responsibilities to your clients. But you don't ever seem to have the time to work through such theoretical issues. You are too practical to consider more than the need to get through your daily docket.

Even though lawyers (and other representatives such as guardians ad litem) have been representing children in child protective proceedings for more than twenty-five years and are currently serving that function in every jurisdiction in the United States,(1) there is no uniform definition of a lawyer's role and responsibilities in this context. As a result, lawyers have been remarkably free -- or remarkably burdened -- to figure this out for themselves. Even worse, "in almost any state ... one will encounter within the state a deep disagreement about [one's] role" (p. 33).

Few topics are in greater need of a book clarifying the law than the role of counsel in child protective proceedings. Lawyers representing children in child protective proceedings are entitled to clear answers about their role and the tasks they should undertake in the discharge of their duties. One of the virtues of Jean Koh Peters's book is to free lawyers from doubts about their role and to liberate them to discharge their responsibilities appropriately.

Peters is an extraordinarily knowledgeable and thoughtful child advocate with substantial experience in representing children in a broad range of legal proceedings. She is also a gifted and reflective teacher of advocacy. As a scholar of children's rights who has trained students at Columbia and Yale in representing children under her supervision, Peters is perhaps better equipped to answer the profoundly difficult questions of role and responsibility than any other writer in the field. No one before her has come close to writing a book for the child advocacy audience that is as sophisticated or wise as this one.

Representing Children does many things. It establishes and defines the role of counsel for children in child protective proceedings. It tells lawyers what steps they should take in the course of their representation and why they should take them. It explains when lawyers ought to empower their clients and treat them as principals (as is the norm for lawyers and clients in other contexts). It also tells lawyers how they should determine what outcome to seek when a client is unable to express a preference for a particular outcome, or when a client's disability or immaturity makes it impossible or inappropriate to follow the client's instruction.

This book is, in my opinion, the definitive text of what lawyers should do in the role of a court-appointed lawyer for a child in a child protection proceeding. For this reason, it is required reading for all lawyers who represent children. But many others related to the field of child advocacy -- including social workers, lawyers for child care agencies, prosecutors, and judges -- would also profit enormously by reading it. Moreover, lawyers in other fields would be well-advised to read it for the nuggets of advice about what constitutes effective advocacy and what steps a lawyer ought to take to secure a result for a client whenever the outcome is likely to be obtained, as is the case in child advocacy-related proceedings, through means other than a contested courtroom trial.

Representing Children is fundamentally a book about strategic lawyering. Peters offers truly outstanding practical suggestions about how to represent a child effectively in a world in which the crucial decisions about the lives of children are made at meetings, not in the courtroom. Identifying interdisciplinary meetings as representing our current best ideas about coordinating client needs, Peters hopes "that lawyers will eventually consider meeting practice more important than trial practice in the work of representing their clients" (p. 190). The chapter on the interdisciplinary meeting should be read by all advocates in all kinds of cases. It will, I predict, become a valued treasure for clinicians teaching informal advocacy.(2)

As far as addressing the challenges of representation, a small criticism is that Peters pays little attention to practical problems such as caseload management. In many offices, such as the Office of the Public Defender in Chicago, lawyers routinely have active caseloads exceeding 300, sometimes reaching 600 cases.(3) Surely lawyers with these choking caseloads will be unable to do most of what Peters advises they do. But this criticism is perhaps unfair. In Representing Children, Peters establishes a standard of practice by offering a complete vision of the tasks lawyers perform for children. There will be plenty of time, in the wake of her groundbreaking work, to address strategies for making it possible to undertake the appropriate tasks given the overwhelming reality. All advocates for children should be indebted to Peters for establishing the gold standard, even if few of us are ever actually able to achieve it.

In this review, I plan to address only some of the many outstanding ideas Peters sets forth in the book. Part I explores the core concepts involved in representing children and discusses Peters's views of when and why to empower children to control the advocacy of their representatives. Because lawyers for children are invariably compelled to decide what kind of lawyer they are to be -- for instance, whether they will take their instructions about what outcomes to seek from their clients, whether they will decide for themselves what outcomes to try to achieve, or whether they will do neither -- Peters devotes an appropriately substantial amount of time to the role of counsel for children. Part II analyzes the implications of Peters's advocacy proposals from a practical perspective and examines the likely impact of these proposals on her target audience. Finally, Part III addresses problems with Peters's views on the role of counsel from a theoretical perspective.

As will soon be apparent, I agree with Peters's views of what lawyers for children should do when representing their clients in child protective proceedings. Indeed, in my opinion, this book offers better advice on this subject than any other book ever written. But the theories that underlie Peters's practical advice are another matter. In the course of this review, and particularly in Part III, I will identify several problematic aspects of Peters's theories, all the while agreeing with the endpoint to which these ideas lead her. In particular, Peters's methodology leads her to recommend what lawyers representing children ought to do by first undertaking the task of deciding what is best for children who are enmeshed in the foster care system. Then she directs that lawyers representing children pursue actions consistent with Peters's views about child development. Though this methodology apparently has much to offer, I hope to demonstrate the hidden dangers lurking behind it.

1. JUST WHAT ARE CHILDREN'S LAWYERS ANYWAY? MOUTHPIECES FOR THEIR CLIENTS OR INDEPENDENT GUARDIANS ASSIGNED TO PROTECT THEIR CLIENTS' BEST INTERESTS?

   Lawyers who represent children are in desperate need of guidance to help them articulate and understand their role. The most basic questions need answering. When are lawyers supposed to treat their child clients as the principals in the attorney-client relationship? When are lawyers free to disregard their clients' expressed instructions as to the objectives sought in the case? And when lawyers are free to decide for themselves what objectives to seek, how should they go about deciding what to do? Peters has answers to all of these questions, and more.

   Peters is sensitive to the problem of an undefined role for a child's representative, which would permit the lawyer to do what the lawyer wants.(4) Peters believes, as I do, that it is crucial to establish parameters for lawyers assigned to represent children that maximize the probability that different lawyers will do approximately identical things in the course of representing like children in like cases and that, at the least, lawyers will be advocating for like results in like cases.

   Peters is particularly insistent to avoid proposing a set of rules that frees lawyers to do whatever they want. As Peters has explained:

   This extreme form of best interests representation omits several of the most fundamental characteristics of lawyering. The lawyer-client partnership and dialogue is reduced to a one-person monologue wholly unchecked by the client. The client becomes an object, rather than the subject, of the representation. The lawyer, usually agent, acts as the principal in the relationship.5 For this reason, her avowed goal is to constrain the degree of discretion lawyers for young children have to decide for themselves which positions to advocate on behalf of their clients.

   1. Empowering Children to Set the Objectives in Their Cases

   Perhaps the easiest way to ensure uniformity is to require that lawyers presume their clients have a sufficient degree of knowledge and maturity to set the objectives in the case. After all, what makes representing children so different from representing adults is "that the child's lawyer ... is `adrift without the anchor of a principal.'"(6) By defining the child as the principal, most of the...