Until the Client Speaks: Reviving the Legal-Interest Model for Preverbal Children

Abstract

When the state intervenes in a child's life through a child abuse and neglect case, a court proceeding is initiated and a plethora of legal rights attach. Children in these situations need trained legal representatives to protect these rights. However, there is widespread confusion and debate about the role of attorneys appointed to represent children.

This article seeks to revive and develop further the concept of legal-interest advocacy, which was first introduced by the American Bar Association in 1996. This model offers a workable alternative to both the best-interest and substitute-judgment representation models for preverbal clients.

We provide an overview of the historical debate regarding the role of counsel for children, then we discuss the concept of legal-interest representation for preverbal children as a limitation on an attorney's discretion. We walk through several scenarios to contrast a best-interests approach with the legal-interest approach. Finally we address concerns about the legal-interest model. We conclude that it is the most ethical way for attorneys to protect the rights of their preverbal child clients without substituting their own values for their clients'.

Keywords: Attorney-Client Relationship, Appointed Counsel, Child Dependency, Foster Care, Family Law, Child Welfare, Best Interests of the Child, Guardian Ad Litem, Legal Ethics, Rules of Professional Conduct