When your attorney is your enemy: preliminary thoughts on ensuring effective representation for queer youth.

• Author: Valentine, Sarah
• Position: Gender on the Frontiers: Confronting Intersectionalities

Attorneys representing children too often become their enemies (1) rather than their advocates. This is especially true when the children are queer. (2) Queer youth caught in the judicial (3) system are often severely harmed, (4) specifically because of where a court decides they will reside. Judges determine where children will reside through custody decisions, or by deciding whether they will be placed in foster care, group homes, or detention facilities in child welfare and delinquency proceedings. (5) Once in the justice system, most children are provided an attorney in part because courts have recognized that children have a liberty interest at stake in the proceedings, (6) including a right to "reasonably safe living conditions" and services necessary to ensure protection from harm. (7) Where a child will be placed is always an important issue in cases involving juveniles and thus a pivotal issue for the child's attorney. However, for queer children, questions of placement are critical, because they can have terrible, even life-threatening, consequences. (8)

Unfortunately, attorneys entrusted to represent queer youth are not immune from the heteronormativity (9) and homophobia (10) that pervade our culture. Even unintentional anti-queer bias can distort the relationship between a lawyer and a queer child client--further endangering an already at-risk population. (11) An attorney is generally viewed as someone fighting for her client's rights by giving voice to the client's wishes. However, the image of a zealous advocate does not hold true when the client is a child. Because they can disregard their clients' wishes, lawyers representing children too often become another liability the judicial system imposes on a child. When the client is a queer youth, the risk of harm created when an attorney fails to provide traditional advocacy is magnified.

Queer youth are endangered by both the judicial system and the child welfare system into which they may be placed. To protect these children, it is necessary to ensure that their attorneys represent their wishes by providing traditional advocacy as opposed to best interest representation.

Part I of this Article begins with a brief discussion of the bias and prejudice in the judicial and child welfare systems that affect queer youth. Then it provides an overview of the role continuum that allows attorneys representing children to provide less than traditional advocacy. The narratives in Part I.B illustrate the effect an attorney can have on a queer child. Part II of this Article addresses four mechanisms by which a queer child harmed by an attorney who provides less than traditional advocacy can seek redress. Part II.A explains how children can use claims of ineffective assistance of counsel, Part II.B discusses the possibility of bringing a legal malpractice suit, and Parts II.C & D. review ethical claims, both judicial and professional, that might prove useful to queer children injured by their attorneys.

1. BIAS AND PREJUDICE IN THE JUSTICE SYSTEM & INADEQUACIES IN THE LEGAL REPRESENTATION OF CHILDREN

   It is generally accepted that bias or prejudice against queers is both individualized and part of society at large. (12) Multiple studies indicate that individuals who work in the legal system--whether they are judges, attorneys, clerks, or other administrative personnel--are susceptible to these biases. (13) Sexual orientation bias may be explicitly evident as when a victim's sexual orientation is the reason behind a murderer's lenient sentencing, (14) a mother losing her child (15) or an eighteen-year-old disabled boy receiving a sentence thirteen times longer for having sex with an underage boy than he would have received if he had sex with an underage girl. (16)

   Perhaps more insidious than overt prejudice is the assumption that everyone is, or should be, heterosexual. Such presumptions are the basis for decisions that harm queers, not because of hostility but because they are rendered invisible to the court or to the state. (17) The belief that children cannot or should not be gay permeates our society and does violence to queer youth. (18) The violence is accentuated when the child is at the mercy of the state or a state-appointed attorney. These assumptions--e.g, believing a queer child is merely "confused," assuming a child is too young to be sexual, or attempting to protect a child from societal discrimination--are dangerous even when an attorney is acting in good faith. (19)

   Attorney bias and prejudice against "queerness" can be explicitly negative, founded on the belief that straying from the heterosexual norm in either action or appearance is wrong. However, bias may also be implicit in the decisions and determinations an attorney makes based on heterosexist notions that all children are (or should be) heterosexual or brought up in a "traditional" heterosexual home. Regardless of the reason behind the prejudice, the impact on a queer child will be the same. (20) If an attorney is allowed to provide anything but traditional advocacy for a queer child, it is likely the child will be harmed by either the attorney's explicit hostility toward, or internalized erasures of, the child's queer identity.

   1. Representing Children

      Most children in the justice system are provided attorneys, (21) and courts have held that where a child possesses a right to counsel, she has a right to "effective assistance of counsel." (22) While children may have a "right" to effective assistance of counsel, it is clear that the representation they receive generally falls well below such a standard. (23) Worsening the problems children face from poorly trained, overwhelmed, or indifferent attorneys is the systemic support of "best interest" lawyering. (24) Unlike most attorney-client relationships, lawyers representing children have a role continuum that often allows them to select the kind of representation they will provide to a child. (25)

      Attorneys for children may be allowed to, and are sometimes required to, provide traditional advocacy in which they are ethically required to advocate for the wishes of their clients. (26) However, most states encourage and may require that attorneys representing children be loyal to the court and not to their child clients. (27) In such states attorneys are appointed either as guardians ad litems (GALs) or as "best interest" attorneys. These roles require attorneys to advocate for what this Author suggests is their "best guess" (28) at what is in a child's "best interest" by substituting their judgment for that of their client. (29) This type of representation allows lawyers to ignore ethical rules concerning attorney-client privilege (30) and client autonomy (31) and also allows attorneys to directly undermine their clients before the court. (32)

      The premise behind best interest lawyering is rooted in concepts of the state as parens patriae, responsible for the care of the child when the parents cannot or will not fulfill that role. (33) It is based in part on the belief that the court, which is ultimately responsible for determining the best interest of the child, requires someone else to act as either a neutral party or as a best interest advocate, to ensure that all pertinent information about a child is provided to the state. (34) Best interest lawyering persists although it has long been called into question by bar associations, academics, and many family law practitioners (35)--regrettably for reasons that have little or no connection to "the best interest" of the child. (36)

      Best interest lawyering allows and encourages attorneys to substitute their own beliefs for those of their clients. This substitution of judgment occurs within an attorney-client relationship fraught with power differentials that allow attorneys relatively free reign to do as they please. (37) Within this environment of unchecked attorney autonomy, individual attorney biases and prejudice cannot help but infect the representation provided to children. (38) Any ideas attorneys may have as to what is in their queer child clients' best interests will be permeated with the attorneys' own homophobic and heterosexist biases. (39) Therefore, any best interest representation by biased attorneys endangers queer youth.

   2. The Good, the Bad, and the Ugly

      The representation of queer children occurs across a spectrum of attorney behavior. However, three general archetypes of representation might be described as the "good," the "bad," and the "ugly." The "good" is what every child deserves. The "bad" is the casually disapproving yet still dangerous bias many attorneys exhibit toward queerness. The "ugly" is a menacing antagonism by an overtly prejudiced attorney who actively harms a queer child. The following case narratives illustrate these three archetypes.

      The first case is an example of the "good" that is traditional advocacy and is from a reported New York case. It involves Lori M,, a fifteen-year-old girl whose mother initiated a PINS (40) proceeding solely because her daughter was in a lesbian relationship. (41) According to the court, the mother filed the PINS petition "when Lori absconded from home in defiance of her mother's directive that she have no contact or communication whatsoever with her older friend." (42) Other than the lesbian relationship, there were no other disciplinary problems between the mother and daughter. (43) Under New York law, once a child is adjudicated a PINS, she can be removed from her home and placed in state custody. (44) Lori's Law Guardian argued that the child's sexual orientation and the choices she made in pursuit thereof were constitutionally protected. (45) After a discussion of children's constitutional rights to privacy, the court concluded that the mother could not invoke the power of the state to intervene in the child's relationship decisions and dismissed the petition. (46)

      The second narrative illustrates the all...