EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Tuesday, May 27, 2008

Article of Interest: Professor Peter Margulies' Lawyering for Children: Confidentiality Meets Context

Last year, Roger Williams University School of Law Professor Peter S. Margulies published the terrific article, Lawyering for Children: Confidentiality Meets Context, as part of the St. John's University Symposium on "Race, Culture, Class, and Crisis in Child Welfare: Theory Into Practice."  In the article, Margulies argues that attorneys representing children should utilize a "local competence view" under which they should explore three issues before deciding to disclose a "child client" confidence: 

     -(1) the likelihood and gravity of future harm;

     -(2) the child's understanding of the consequence of the decision; and

     -(3) the availability of alternatives to the current placement.

In Part, I, Margulies analyzes the current confidentiality framework for attorney-"child client" relationships.  He begins by noting that many states take a "best interests" approach, under which "the lawyer may advocate for a position different from the one taken by the child, if the lawyer believes that the child's position would lead to an outcome prejudicial to her best interests."  This approach, however, has increasingly given way to the belief "that children, if competent, should have the same authority as adults to make decisions."  Margulies notes that this paradigm shift has dovetailed with the movement from a status-based conceptualization of capacity, which viewed children as wholly lacking in capacity, to the "consensus that capacity is not a global determination, with an all-or-nothing answer, but is instead a more textured, fluid inquiry."  Finally, Margulies identifies the tendency of many courts to allow attorneys to disclose "child client" confidences to prevent harm to a child under a disjunctive standard, which allows for disclosure based upon "either the probability or gravity of harm."

In Part II, Margulies contends that attorneys representing children too often make the "fallacy of omniscience," under which they see themselves as child-savers, removing a child from an irreversibly harmful situation and into a separate peace.  This fallacy is based in part upon failure to recognize flaws in cognitive and institutional dynamics, which result in the encouragement of the separation of child and parent and the discouragement of reunification.  Margulies' solution is for attorneys to consider the strengths and weaknesses of all of the players in the child welfare arena before making disclosure decisions.  These include:


     -cognitive limitations: hindsight bias, presentism (undue weighing of present harms above harms in the future), representativeness (seeing superficial similarities between events or things as reflecting greater commonalities), and the attribution fallacy (attributing events to intentional action)

     -organizational factors:  children's lawyers are penalized and rewarded asymmetrically, being broadly condemned for advocating too aggressively for returning a child to a parent, but rarely receiving praise when reunification is successful; and

     -race, culture, and class biases: attorneys sometimes miscomprehend the means of expression and living conditions of children from different socio-economic or ethnic backgrounds.


     -subject to the same hindsight bias, asymmetrical incentive structure, and race/culture class biases as attorneys; and

     -courts/judges faced with the crushing volume of child welfare cases tend to opt for risk-averse decisions.

Child Welfare Agencies:

     -suffer from the same decisional deficits exhibits by both attorneys and courts;

     -sometimes allow institutional momentum to influence questionable policy moves and permit funding sources to drive policy, with more funding available for foster care placements and less funding readily available for family reunification efforts that provide intensive services for families in need;

     -sometimes engage in "group think;" and

     -have the ability to learn.


     -suffer from a collective action dynamic (the race to the bottom) which encourages policymaking that benefits their short-term political fortunes.


     -have large deficits in their understandings of how consequences play out over time;

     -(especially children under ten) have difficulty in conceptualizing a sense of self;

     -(especially older children) face significant limitations in cognition and perception; and

     -have insights that can advance a lawyer's understanding, and sometime confound expectations.


     -many are simply people struggling to make due in a system where juggling is a never-ending necessity; and

     -know more about their children than lawyers, judges, or social workers ever could.

In Part III, Margulies argues that after analyzing these local competencies of each of the players, attorneys should apply the aforementioned three issues in the following manner before deciding to disclose a "child client" confidence: 

     -(1) the likelihood and gravity of future harm:  use a conjunctive test, with disclosure only to prevent both a probable and a grave harm to the child.

     -(2) the child's understanding of the consequence of the decision:  draw a boundary between second guessing a child client's decision and assessing the child's reasoning response.

     -(3) the availability of alternatives to the current placement:  examine proposed alternative placements from the child's point of view.

Margulies then proceeds to apply his test to several specific child welfare scenarios:  (1) parental discipline; (2) recurrence of neglect; (3)recurrence of parental substance abuse; (4) disclosure to a mental health professional; (5) disclosure to a parent; and (6) disclosure and "children having children."  Margulies concludes by lamenting that in some states, his test is precluded based upon the requirement of mandatory reporting of child abuse, which he contends "frustrates lawyer-client dialogue, exacerbates racial and socio-economic disparities in the child welfare system, and may actually make children less safe."

I asked Professor Margulies about what led him to write the article and his forthcoming scholarship, and he responded:

"I've written about lawyering for children, senior citizens, and people with mental disabilities in pieces published in symposia in the Fordham L. Rev. over the last 12-14 years, and I've been interested in how the lawyer balances her role as a gatekeeper for systemic integrity and the public interest with her role as zealous advocate.  My current focus is on legal ethics and national security; I've written an article entitled, "True Believers at Law: National Security Agendas, the Regulation of Lawyers, and the Separation of Powers," forthcoming in the Maryland L. Rev., and also available on SSRN."

(The Fordham articles can be found at 62 Fordham L. Rev. 1073, 64 Fordham L. Rev. 1473, and 67 Fordham L. Rev. 2339.  The forthcoming Maryland Law Review article can be downloaded from SSRN [SSRN link]).

I highly recommend Margulies' article to the subjects of his article:  all of the players in the child welfare arena.  More specifically, it is a must read for lawyers and professors dealing with both family law and professional responsibility issues.



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