Tuesday, February 27, 2007
Posted by Alan Childress
Peter Margulies (Roger Williams Univ.--Law [right]) has posted to SSRN an article, "Lawyering for Children: Confidentiality Meets Context." It's forthcoming in St. John's Law Review. His abstract:
The lawyer's role in representing children has inspired discussion and debate for over a quarter of a century. The scope of the lawyer's duty of confidentiality to a child client is a crucial component of that debate. Advocates of a “best interests” approach generally favor either a relaxed duty of confidentiality or recognition of the lawyer's ability to advocate for a position against the child client's wishes. Champions of a zealous lawyering conception favor a more stringent duty of confidentiality. Each camp must also grapple with ethical rules that permit a lawyer to act to protect the interests of a client of questionable capacity. This article argues that lawyers for children should consider the local competencies of all of the players in the child welfare system, including courts, child welfare agencies, and lawyers themselves. Based on this assessment, lawyers should apply pragmatic criteria for disclosure, centering on the likelihood and gravity of future harm, the child's understanding of the consequences of the decision, and the availability of alternatives.