For as long as lawyers have been representing children in New York state and elsewhere, the unfortunate backdrop for this otherwise noble and rewarding work has been an often heated debate regarding the proper role of a child’s lawyer in neglect and abuse, permanency and termination of parental rights proceedings. While a state has considerable discretion in defining that role, New York, like many other states, has provided only general guidance to children’s lawyers, who are referred to as counsel or, confusingly, as “law guardians” in New York statutes. As a result, while everyone agrees that the child’s lawyer, like any other lawyer, must conduct an adequate factual investigation, communicate regularly with any verbal client and help such a client understand the proceedings and make sound decisions, and prepare for and advocate at court hearings, lawyers have been left relatively free to follow, or override in their discretion, positions taken by their young and immature clients. In other words, lawyers have been able to navigate freely between the traditional lawyer’s role – advocating for the client’s expressed interests, and a guardian ad litem role – advocating for what the guardian determines to be in the child’s interest.
On Oct. 17, 2007, Chief Judge Judith S. Kaye, a long-time children’s rights champion, signed new §7.2 of the Rules of the Chief Judge, which states that in juvenile delinquency and person in need of supervision proceedings, “the attorney for the child must zealously defend the child,” and that in other proceedings, the child’s attorney “should be directed by the wishes of the child” if “the child is capable of knowing, voluntary and considered judgment,” even if the attorney “believes that what the child wants is not in the child’s best interests.”
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