March 6, 1997
Vol. 16, No. 12

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    'You're my what?':

    Buss advocates change in child-attorney relationship

    A child in foster care is almost always scared, confused and unsure of what the future will bring. Then they meet a person who introduces herself as the child's attorney.

    "You're my what?"

    Emily Buss, Assistant Professor in the Law School and an attorney for abused and neglected children, said children usually have no idea what an attorney is, what an attorney is supposed to do for them, or what an attorney does "in court," a place they haven't visited but where they know their futures are determined.

    Buss, an expert in legal ethics and the legal rights of children, is advocating that children go to court hearings to learn what their attorney does and how the process works. She also advocates acting as a traditional attorney -- representing what the child wants -- rather than trying to determine what is in the child's "best interests" for all children old enough to engage in reasoned decision making.

    "Children in foster care hear about 'court' -- they know that court is where all the decisions are made about where they will live and for how long," Buss said. "They get that message, but they have no idea how the decisions are made.

    "What I have found is that for many of my clients, even for the teenagers among them, the message that they are in charge, that I will fight for what they want, does not sink in. They assume that I will take whatever action I think is right and that I stand united with the public child welfare agency in controlling their fate, regardless of their desires."

    Buss was the deputy director of the Juvenile Law Center in Philadelphia before joining the University faculty in autumn quarter. She presented the paper "You're My What?" at a Fordham University conference last year, and she will participate in a Loyola University conference in April that will address ethical issues in representation of children in the state of Illinois.

    "Conscientious lawyers for children in the dependency and custody context will try to allay children's confusion by explaining their role," she said. "But because of the ways that children learn, even detailed explanations can be mystifying.

    "The lawyer's explanation requires reference to the most painful, private details of the child's life -- abuse by a parent, placement in foster care, a parent's mental health or drug problems, or parental discord. If the child learns anything from his lawyer's explanations, it is that the lawyer knows a lot of embarrassing things about his family and that she has the power to get this information without talking to him first. This realization reinforces the child's perception that the lawyer operates in an entirely different power class from the child, in pursuit of no one's interests but her own." Ensuring that children clearly understand what their lawyer is there to do for them is critical, Buss said, because the child's future is at stake. Thus the two fundamental questions are whether the child should be allowed to court hearings on his case, and what role the attorney should take in representing the child.

    Frequently, children do not attend hearings in family court -- and for some good reasons, Buss said.

    "The court system is often run terribly," she said. "It's busy, there are long waits, it can be demoralizing and confusing and sometimes traumatic. But when kids do attend, they finally have the chance to see what their lawyer is doing for them. I'd rather begin with the presumption that the child will be in court, and make the decision to exclude the child as deemed necessary."

    The role of an attorney for abused and neglected children involves taking one of two approaches: working for the child in a traditional attorney-client role, where the child's wishes are advocated, or working in the "guardian ad litem" role, where the "best interests" of the child are advocated, regardless of the child's desires.

    There are strong arguments for both methods, Buss said. The traditional lawyer model, in which the lawyer is a strong advocate for what the client wants, has the advantage of giving the child a genuine voice in a decision-making process that will determine his fate, and also allows the lawyer to act in a manner consistent with her training and competence.

    The traditional attorney model also allows the attorney honestly to encourage the child to trust her with sensitive information. Those "secrets" are usually considered private under attorney-client privilege in adult cases. Buss thinks the same should be true for children.

    For example, a child who wants to go home to his parents might share the confidence that his mother is still using drugs. An attorney taking a traditional approach would keep that secret for the child because it would prejudice her case.

    In the "guardian ad litem," or "best-interests" model, the attorney might decide that, knowing that information, the child should not go home. She might then tell the court the child's "secret" in order to make her case.

    And there's the ethical problem, Buss said. "It is this role confusion, as much as anything, that distinguishes representing children from representing adults, and that makes the ethical and coherent representation of children so difficult," Buss said.

    "The 'best-interest' model is close to fraudulent if the attorney works to build trust and elicit 'secret' information from the child and then uses that information as an argument against the child's wishes."

    She said that children, like adults, are willing to develop a relationship and share information with their attorney depending on their understanding of how the information is going to be used.

    "The information a child provides depends on the child's perceptions of his lawyer's role," Buss said. "And the more fully and freely the information flows, the better the lawyer can advocate under either model.

    "For the attorney serving as a guardian ad litem [GAL], the interests in accuracy and ethics threaten to diverge. If a child understands the true GAL role -- including a willingness to advocate a position different from the child's -- he may withhold information or even misrepresent information to his lawyer.

    "Although misleading a child or exploiting a child's misconceptions of a lawyer's role may facilitate advocacy of the child's best interests by the lawyer, it raises serious ethical problems. Lawyers who assume the GAL model may be forced to choose between honesty and effectiveness."

    Buss said she feels strongly that the traditional lawyer model -- being a strong advocate for what the child wants -- is the better and more workable method. This method empowers children, who often make good decisions about their futures even when they are quite young, and does not ask lawyers (as the GAL model does) to make judgments they have no special competence to make.

    Many attorneys who work primarily with children in abuse and neglect cases and legal academics believe that the better model is the traditional advocate model, Buss said. But in many states, including Illinois, the law directs attorneys to act in the best interests of the child. And judges usually assume the attorney is advocating what she thinks is best for the child, not the child's wishes.

    Whatever model is chosen, the most critical piece is to explain clearly exactly what role the lawyer is playing, Buss said. Bringing the child to court will help him understand what his lawyer does.

    "For children truly to understand what it means to have a lawyer, and what a lawyer does, they need to experience the process as participants and as observers," she said. "Lawyers cannot expect to convey their role effectively to most children by simply explaining things more clearly. Children have no context, no relevant experience to make sense of these explanations.

    "A child's presence in court not only allows the child to observe his lawyer's role, but it also puts pressure on the lawyer to be true to her role."

    Ultimately, Buss said, her theories need to be tested by lawyers, psychologists and educators to find the best ways to convey an attorney's role to children.

    -- Catherine Behan