Lawyering in juvenile court: lessons from a civil Gideon experiment.

• Author: Federle, Katherine Hunt
• Position: 2008 ABA Section of Litigation Access to Justice Symposium

Introduction I. Lawyering and Autonomy II. Lawyering in Juvenile Court III. Lessons Learned INTRODUCTION

After September 11, 2001, news reports and organizations estimated there were tens of thousands of children left orphaned by the attacks. (1) The New York Times reported that "secretaries at the New York State Office of Children and Family Services and press officers at [New York City's] Administration for Children's Services could hardly answer the telephone without hearing from people who had read news of the many hundreds, even thousands of orphans left in need of a home by the September 11 disaster." (2) "All were eagerly offering to adopt a World Trade Center orphan." (3) The Twin Towers Orphan Fund, established on September 13, 2001, raised millions of dollars (4) to provide long-term higher educational assistance and mental and physical health care assistance for the children orphaned by the attacks. (5) It soon became apparent, however, that there were no "Twin Towers orphans." "Not a single child [needed] foster care or adoption by strangers." (6) In contrast, the state of New York at that time had 2,558 orphaned children eligible for adoption. (7) While the imaginary orphans of September 11 elicited tremendous sympathy and charity, there was little outpouring of anger over the fate of children missing from foster care across the country. (8) The reasons for the difference may lie in the way society views both poverty and the responsibility for children. Simply put, society tends to view poverty as the fault of the poor. The general view is that, in this land of plenty, no one is poor unless he wants to be poor. In contrast, the "orphans" of the World Trade Center were not to blame for the September 11 attacks; as a result society felt responsible for them as a community.

This view of poverty dominates many of our public policy choices--not only about children and their families, but about those individuals in need--and structures public commitment to, and responsibility for, the poor. We often adopt approaches that place full responsibility on those least able to meet these demands because, as a society, we feel less communal responsibility for the poor, who often are contradictorily portrayed as shiftless, lazy, criminal, and easily duped. (9) For those proponents of a civil right to counsel, this view about poverty structures the debate concerning the existence, nature, and extent of that fight (that is, who gets a lawyer, what cases warrant the appointment of counsel, and who pays for the representative). But it also alludes to a deeper question about what it means to be a good lawyer for the poor and the degree to which the lawyer must facilitate client autonomy.

The extent to which the lawyer must accord the client autonomy remains a source of considerable debate. (10) From one perspective, ethical lawyering must be client-centered and client-empowering; within this paradigm, the attorney is partisan, loyal, zealous, subordinate, and nonaccountable. Dignity, freedom, and individual autonomy are central features. Under another view, however, the attorney is professionally independent of and perhaps even paternalistic toward the client, as well as morally accountable for the attorney's own actions. In this instance, notions of integrity are tied to larger concerns about the rights of others and an overarching duty to the principles of truth and justice. For poverty lawyers, the dominant vision of the poor as somehow "disabled" and thus less capable of exercising the kind of autonomy required within the attorney-client relationship, may allow others to challenge the legitimacy of an attorney-client relationship in which client autonomy is primary.

The kind of lawyering that occurs in juvenile court illustrates the challenges of client autonomy within the additional context of poverty. Because children are entitled to counsel (and court-appointed counsel if indigent) in delinquency cases as a matter of due process, (11) children are entitled to be represented by lawyers. For many lawyers, however, the idea that the attorney must advocate for the client's express preferences when that client is a child runs counter to common sense. Largely because the question of who gets to decide is inextricably linked to notions of competency and autonomy, the child client is peculiarly disadvantaged. This emphasis on capacity suggests that the child may be incapable of making reasoned decisions and may thus be unduly susceptible to coercion and manipulation. Although these difficulties often underlie justifications that deny the child access to counsel in the first instance, they also suggest that the attorney's ethical obligations to the child client differ. Thus, what the child wants may be subordinated to some vision of the child's best interests and what is a "good" or "right" decision.

It is this insistence on capacity that has structured much of our discussion about rights and ethical issues in lawyering. The dominant lawyering paradigms center on issues of client autonomy and lawyer independence--on who gets to make decisions in a given case. These models implicitly reflect fights constructs that ultimately inform the lawyer about what she may or may not do for the client. Moreover, rights theories themselves rest on some underlying notion about capacity as a prerequisite for having and exercising those rights. "But because [certain groups] are not seen as capable, autonomous beings, much of our rights talk, and our lawyering, cannot accommodate them." (12)

Lawyering in juvenile court offers some lessons to those who seek to extend the fight to counsel for the poor in civil cases. Not only do juveniles in delinquency cases have the right to counsel as a constitutional matter, but that fight is, explicitly, a civil right. (13) Nevertheless, many juveniles are unrepresented in delinquency proceedings; advocates have had only mixed success in extending the fight to counsel to other types of juvenile court cases. Lawyers who are appointed to represent children often express considerable confusion about their role, and the quality of their representation often is poor. Furthermore, lawyers for children, even those with the best of intentions, may disempower and disable their clients.

To understand how a good lawyering paradigm may nevertheless undermine client empowerment and perpetuate disability, it is necessary to appreciate the larger ethical debate about client autonomy. In the following section, this Article will examine two dominant models of good lawyering and explore their implications for client choice and lawyer autonomy, with an emphasis on poverty lawyering. The Article then turns to a discussion of the lawyering experience in juvenile court to illustrate the ways in which dominant visions of the client as dependent, incompetent, and disabled affect not only the role and responsibilities of the attorney for the child but the extension of the right to counsel itself. Lastly, the lessons learned from lawyers for children are proffered to those who propound a civil fight to counsel.

1. LAWYERING AND AUTONOMY

   Generally, there are two distinct and competing lawyering models; (14) both grapple with the question of client autonomy within the attorney-client relationship and the extent to which the lawyer must promote and serve client independence. One model of good lawyering places greater value on lawyer autonomy, professional integrity, and the rights of others, while embracing a duty to promote the principles of truth and justice. (15) Advocates of this model reject the claim that client autonomy is of such value that the attorney acts morally when he engages in acts that promote the client's ends without regard to the impact of the client's express preferences on others; rather, the lawyer has broader obligations that render the attorney as morally accountable as a nonlawyer for the harms that may be caused to nonclients. (16) From this perspective, the adversary system wrongly exonerates the lawyer from moral accountability (17) by authorizing the lawyer to engage in certain acts, on behalf of the client, that would be immoral if done for others outside that attorney-client relationship. (18) Proponents of lawyer autonomy thus claim that because the attorney is morally accountable for her actions, she must maintain her professional independence. (19)

   A central concern for advocates of lawyer autonomy is how to be both a good lawyer and a good person. (20) From this perspective, lawyering that emphasizes client autonomy may not only insulate the attorney from personal responsibility, but discourage the attorney's direct and personal examination of the moral implications of her actions. (21) Under a different view, however, moral independence promotes the goodness of lawyers who must think about the moral consequences of facilitating client choice, (22) in mm, this produces happier and more productive attorneys. (23) Because the good lawyer may confront the client about the moral implications of the client's actions, the attorney may seek justice by pursuing only those objectives deemed right and fair, thereby fostering a more just legal system. (24) Furthermore, freeing the attorney to engage the client in a moral conversation promotes mutual interdependence and caring. (25)

   Within this construct, the attorney has considerable autonomy over both the means chosen and the ends pursued. (26) While the moral lawyer may refuse to engage in any proposed course of conduct that violates her conscience, she nevertheless must accept responsibility for those actions she chooses to undertake for the client. (27) The attorney must make a judgment about the moral implications of the client's goals (irrespective of the client's legal right to pursue those objectives), (28) grounded either in the lawyer's own moral understanding, (29) or in some sense of common morality. (30) A moral conversation...