A generation ago, the Law Journal published two “Outside Counsel” articles I had authored which analyzed the role and responsibilities of attorneys who represented children in the Family Court. Representing Child Clients: Role of Counsel or Law Guardian (Oct. 6, 1992) and The Child’s Right to Meaningful Representation (Nov. 30, 1993). The articles portrayed a representation system in which counsel had scant guidance and were bound by few specific legal rules. The prevalent model was “best interests” oriented, with the child’s attorney arguing and advancing what he subjectively determined to be his client’s best interests. The misapprehension was bolstered by the statutory designation of the child’s attorney as “law guardian.” Although the Family Court Act defined a law guardian as “… an attorney … designated under this part to represent minors…, [F.C.A. §242; the term “law guardian” was repealed in 2010] the very words “law guardian” suggested a similarity to a different and inapplicable concept, “guardian ad litem.” Further, the Act had never authorized the law guardian to advocate her client’s “best interests,” as opposed to the traditional role of counsel to protect the client’s legal interests. See F.C.A. §241. The word “best” was simply engrafted onto the statute by practice and case law.
Although many law guardians assumed the historical posture of a client-driven relationship, particularly in juvenile delinquency proceedings, the predominant theme was the amorphous “best interest” model. Representation was frequently grounded upon the subjective views of appointed counsel; child “A” hence received vastly different representation than child “B.”
