Ethics Opinion

Opinion No. 76-1

January 1976

Summary: A lawyer who has been appointed by a court to represent a "child in need of services" should handle the case in the manner which he or she considers to be in the best interests of the child, even if contrary to the wishes of the child or the child's parents.

Facts: A lawyer calls our attention to the fact that it now is common practice for the juvenile courts and district courts of the commonwealth to appoint counsel for any indigent child who is the subject of a "child in need of services'' proceeding; that in such cases the court has the power to order removal of the child from the existing custodial situation; that the child involved often will be of limited education and sophistication; and that the child and the parents (or other guardians or custodians) often "are of the opinion that counsel is working at cross purposes to the interests he is to protect." The lawyer asks us for "a detailed opinion setting forth the professional ethical obligations of the child's attorney in such situations."

Discussion: Massachusetts General Laws, Chapter 119, Section 21 defines a "child in need of services" to include a child below the age of 17 who persistently runs away from home, or persistently refuses to obey the lawful and reasonable commands of parents or guardians, or persistently and willfully fails to attend school, or persistently violates lawful and reasonable school regulations.
We believe that when a lawyer is appointed by the court under the provisions of Section 39F, it is the child who is the "client" of the lawyer for purposes of the Canons of Ethics and the Disciplinary Rules. The lawyer does not represent the parents of the child, although they may be required by order of the court to pay all or part of his compensation; and in many instances the parents will be in the position of adverse or potentially adverse parties.
In cases commenced under the "child in need of services" statute, the primary focus of the judicial inquiry may be upon the suitability of the existing home environment of the child, and the court may be faced with the problem of deciding whether or not to take action to have the child removed from the custody of parents or other persons with whom the child is living. See Section 39G of Chapter 119.
The Committee on Ethics usually declines to render opinions on hypothetical situations, and in the present instance we shall not attempt to give an opinion which discusses the full range of ethical problems which may arise in "child in need of services" cases. However, we will consider that problem which appears to be the primary concern of the lawyer who asked for our opinion: What should the lawyer do when the action which he or she thinks would be in the best interests of the child, is contrary to the expressed wishes of the child or the parents or both? (For example, what are the ethical obligations of a lawyer who believes that the interests of the child would be best served by removal of the child away from the family home, but the child and the parents protest?)
Section 39F of Chapter 119 provides that:
When a child alleged to be in need of services is brought before a juvenile court or a juvenile session of a district court pursuant to section 39E, said child shall be informed that he has a right to counsel in all hearings, and if said child is not able to retain counsel, the court shall appoint counsel for said child. The court may in its discretion assess against the parent or guardian the cost, or any part thereof, of counsel appointed to represent a child alleged to be in need of services.

We note here that even if the fee of counsel appointed to represent such a child is assessed against, or is paid voluntarily by the parent or guardian of the child, DR 5-107(B) expressly provides that the lawyer shall not permit the parent or guardian "to direct or regulate his professional judgment in rendering such legal services." The reasons for this rule are set forth in EC 5-23.
Ethical Consideration EC 7-9 provides in relevant part that "In the exercise of his professional judgment on those decisions which are for his determination in the handling of a legal matter, a lawyer should always act in a manner consistent with the best interests of his client."
Ethical Consideration EC 7-12 states that:
Any mental or physical condition of a client that renders him incapable of making a considered judgment on his own behalf casts additional responsibillties upon his lawyer. ... If a client under disability has no legal representative, his lawyer may be compelled in court proceedings to make decisions on behalf of the client. If the client is capable of understanding the matter in question or of contributing to the advancement of his interests, regardless of whether he is legally disqualified from performing certain acts, the lawyer should obtain from him all possible aid. If the disability of a client and the lack of a legal representative compel the lawyer to make decisions for his client, the lawyer should consider all circumstances then prevailing and act with care to safeguard and advance the interests of his client.

Disciplinary Rule DR 7-101(A)(3) provides that "A lawyer shall not intentionally ... prejudice or damage his client during the course of the professional relationship... ."
In light of EC 7-9, EC 7-12 and DR 7-101(A)(3), we believe that when a lawyer is appointed to represent a "child in need of services" who (by reason of lack of education, lack of experience, or other factors) is unable to make an informed judgment as to what is in his or her own best interest, the lawyer (after obtaining "all possible aid" from the child) has an obligation to the child to advocate to the court that disposition of the case which the lawyer believes to be in the best interests of the child, even if such disposition of the case is not consistent with the expressed wishes of the child. In any such case, however, we believe the lawyer should inform the court of the contrary views of the child on the matter, and should state his or her own reasons for believing that the disposition of the case desired by the child is not in the best interests of the child.
Because of the likelihood of conflict of interests between child and parents in such cases, we do not believe that a parent should be considered the "legal representative" of the child for purposes of EC 7-12 in such cases. Accordingly, the lawyer is not bound to adhere to the desires or decisions of the parents, though he may consider them in deciding what course to pursue.
Indeed, the lawyer should not give legal advice to the parents in such cases. Disciplinary Rule DR 7-104(A)(2) provides that: "During the course of his representation of a client a lawyer shall not ... give advice to a person who is not represented by a lawyer, other than the advice to secure counsel, if the interests of such person are or have a reasonable possibility of being with the interests of his client."
This does not mean that the lawyer should be callous or indifferent to the feelings or desires of the parents. On the contrary, "The duty of a lawyer to represent his client with zeal does not militate against his concurrent obligation to treat with consideration all persons involved in the legal process and to avoid the infliction of needless harm." Ethical Consideration EC 7-10. The lawyer should explain to the parents the nature of his or her role in the proceeding and his or her paramount obligation to consider the interests of the child as the client.

Permission to publish granted by the Board of Delegates, 1976. As stated in the Rules of the Committee on Professional Ethics, this advice is that of a committee without official governmental status.