The Law: Taking on Children as Clients
By Georgia Dullea
Originally published by The New York Times, June 17, 1988
Andrew H. Vachss, counselor at law, and a 6-year-old client in a Met cap went to Family Court in Westchester County last week. It was the happy resolution to a series of ugly proceedings that began four years ago when Mr. Vachss represented the boy in an abuse case against his parents. Now he was about to be adopted.
''Is it going to be a real judge?'' the boy asked.
''A real judge,'' the lawyer said, ''in a black robe.''
For Mr. Vachss, childish questions from a client are nothing unusual; this is a lawyer whose stationery describes his practice as ''limited to matters concerning children and youth.''
Evolving Role Since 1967
Others in the legal profession have also adopted children's law as a specialty as more children become involved in the legal system. But its practice presents special problems and special obligations that make it unlike any other kind of lawyering.
The role of the children's lawyer has been evolving since 1967 when the United States Supreme Court ruled that minors are entitled to counsel in delinquency cases. Over the years, growing numbers of children have become entangled in the legal system -as subjects of custody disputes between divorcing parents, as victims of abuse and neglect, as witnesses in criminal cases. To protect the children's interests, many states now require or authorize courts to appoint lawyers for them, particularly when allegations of sexual molestation arise in custody litigation.
No studies exist on the number of private lawyers specializing in children's law, said Robert M. Horowitz, associate director of the American Bar Association's National Legal Resource Center for Child Advocacy and Protection. But he said court demands made children's law a ''growth industry,'' although he said the work was still underpaid and undervalued.
'Old Rules' Don't Always Work
When the client is a child, some lawyers find that obedience to the ethical standards they are so comfortable with becomes burdensome, even impossible.
''The old rules we learned in law school don't work sometimes with children,'' John E. B. Myers, an associate professor at McGeorge School of Law in Sacramento, Calif.
Ann M. Haralambie, president of the National Association of Counsel for Children, in Denver, said lawyers were finding that even young children could grasp legal concepts when presented on their terms. For example, Ms. Haralambie describes the attorney-client privilege to a young client by seating him or her in a tiny rocking chair in her office in Tucson, Ariz., and saying: ''I'm not like your therapist. I'm a lawyer and one rule about being a lawyer is I can't tell anything you say to me. The only time I can tell is if you say it's O.K.''
When divorcing parents ask children what goes on at the lawyer's office, Ms. Haralambie has taught them to say, ''My attorney says I can't talk about the case.''
Wishes vs. Best Interests
The Family Advocate, an American Bar Association journal, recently devoted an entire issue to the difficult questions that confront a lawyer for a child in a custody case. For example: Must a lawyer follow the directions of an 8-year-old client? Can the same lawyer represent brothers and sisters? When a child makes false allegations of sexual molestation against a parent, how does the lawyer proceed?
Some answers hinge on whether the applicable statute or court order defines the lawyer's role as that of the child's advocate or as his guardian.
As advocate, a lawyer's duty to a child client does not significantly differ from those to an adult: to represent the client's ''expressed wishes'' as long as the client is capable of ''considered judgment.''
As a guardian, the lawyer represents the child's ''best interests'' and is not bound by the child's expressed wishes in making recommendations.
An advocate, on the other hand, faces a dilemma if the child's choice could be dangerous, such as when the child prefers abusive parents to a foster home. One solution is for the advocate request that a second lawyer be appointed guardian to represent the child's interests. But this weakens the child's case by waving a red flag at the court.
Persuasion as a Tactic
While the ethics committees of state bars associations ponder such fine points, lawyers like Mr. Vachss take a looser interpretation. ''If my client wants to live with Daddy and I want him to live with Mommy, I'll try to persuade my client otherwise,'' he said. ''But I don't substitute my judgment for the child's unless the child's preference is in fact a dangerous one.''
In general, fees for child advocates or guardians appointed by the courts are paid by the parents or the state. In New York, for example, the hourly rate is $40 for court appearances and $25 for out-of-court work. Corporate lawyers routinely charge 5 to 10 times as much.
''It costs more to run my office than the state pays me,'' said Marie Walton, who practices in Longmont, Colo.
''Nobody's in this for the money,'' Mr. Horowitz added. ''It's a good way to go broke.''
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