Thursday, June 5, 2014
Alberto Bernabe (The John Marshall Law School) has posted A Good Step in the Right Direction: Illinois Eliminates the Conflict Between Attorneys and Guardians (38 J. of the Legal Profession 161 (2013)) on SSRN. Here is the abstract:
Even though most organizations that set advocacy standards for attorneys participating in juvenile delinquency proceedings have emphasized that the duty of the lawyer for a juvenile is to advocate for the juvenile’s legal rights rather than to support some other person’s determination of the juvenile’s best interests, there is significant evidence that there is confusion among attorneys and judges as to the proper role of attorneys who represent minors in delinquency proceedings. However, in delinquency proceedings, the duties of an attorney for a minor client are so fundamentally different than those of a guardian ad litem, that attempting to serve as an attorney and a guardian at the same time affects the effectiveness of the attorney’s role as an advocate for the minor, thus making it impossible for the attorney to provide the type of effective assistance of counsel that is guaranteed by the Constitution. Because juveniles facing delinquency proceedings have a Constitutional right to counsel and to effective assistance of counsel, remedying the problem is critical to improving the quality of juvenile justice. This short essay explains the problem and reviews the state of the law on the issue.