Plight of the Child's Attorney -- Conflicts of Interest and Deciding Who the Attorney Represents

In my Legal Profession course -- an ethics course required to graduate from law school -- we have discussed hypotheticals that pose the interesting conflict of one individual hiring a lawyer on behalf of another. This could pose particular difficulties for the attorney if the conflicts between the paying individual and the technical client diverge. For example, we discussed the case where a woman (let's call her Sue) hires the attorney to represent her boyfriend (Bob) who has been arrested. If in the course of representation Bob tells the attorney that he has AIDS, but he doesn't want his girlfriend Sue to know, the attorney is certainly in a conflicted position. The debate is complicated by strict confidentiality rules and rules that allow the attorney to break that confidentiality in certain instances -- such as if someone else's life is in danger.

This discussion -- while interesting and rather abstract for the usual attorney -- is particularly pertinent for a child's attorney. This sort of conflict potentially arises in EVERY single instance where a child has legal counsel. The parents are necessarily in a position where their interests are involved (even if the child is in criminal jeopardy, the parents' rights to custody are at stake -- if the child is put in a detention center, the parents' lose their rights to determine how the child is raised, for example).

The usual conflict raised when discussing the difficulties inherent in representing children is the conflict between the child-client's interests and their best interests. The attorney is most likely a responsible adult, and it is possible that in zealously representing their client, the attorney may feel that this may not be what is actually best for their client. While this probably arises more often in the course of representing children, this problem is not completely absent from the representation of adults. Adult clients will decide to not follow their attorney's advice (such as accepting a plea agreement). Attorneys for children can get help in balancing this difficult issue in the cases of children. In many instances a guardian ad litem (GAL) will be appointed. This GAL is supposed to look out for the child's best interest and thus allow the attorney to zealously advocate for the child's wishes with a clear conscience.

The complexity inherent in the parent-child-attorney interaction has no easy solution. The parent will usually be the one footing the bill (unless the attorney is working for free or is paid by the state). The parent will most likely have an interest that aligns with the attorney (if we assume they're both rational adults thinking in objective terms about the child's best interest). On the other hand, it is very possible that the parent will have their own motivations and interests stemming from the involvement with the courts.

There is no easy solution for children with legal representation. It will be very tempting for the child's attorney to take the parent's interests into account. On the other hand, seasoned attorneys might have a lot of experience parsing through the various interests -- thus leaving the child with exemplary legal representation.