Ethics Opinion

Opinion No. 93-6

June 1993

Summary: Where a minor client instructs her lawyer to pursue a course of action in a care and protection proceeding which is not in accordance with the opinion of the lawyer and other professionals as to what is in the minor's best interests, the lawyer must follow the minor client's direction unless he determines that she is incapable of making a considered judgment on her own behalf, and therefore "incompetent." If the lawyer believes his client to be competent but he is unable to zealously represent his client's stated position, the lawyer may also attempt to withdraw from the representation. If the lawyer determines that the client's lack of maturity reaches a level of "incompetence," he may make some decisions on behalf of the client. The lawyer should make these decisions, however, on the basis of what the child would desire if she were competent to understand her options and express her wishes. Alternatively, a lawyer may seek the appointment of a guardian ad litem for the child but should first discuss the appointment with the child. Facts: A lawyer represents a 13-year-old female who is the subject of an ongoing care and protection petition. The lawyer is the minor's attorney in the proceedings, not her guardian ad litem. The client was removed from her natural home and placed in a residential setting as a result of a determination that her mother was unfit to care for her. The client has recently expressed a desire to return home and be reunited with her mother. However, in the opinion of professionals involved in this matter and in the attorney's own personal opinion, such a reunion would be inappropriate. The client has asked the lawyer to argue that she be allowed to return home. Given the opinion of professionals and the lawyer's personal judgment that the return home would not be in the child's best interests, what should the lawyer do? Discussion: The issue presented is a difficult one that has divided practitioners and commentators in the field. Some urge that it is a lawyer's obligation to follow the instructions of a minor client, regardless of the minor's age, when the client is sufficiently mature to formulate an informed position. Others take the position that a minor who is only 13 is presumed unable to have a mature sense of the appropriate decisions in situations like the one portrayed. Under this position, it is the lawyer's duty to present to the court his best judgment as to what is in the minor's best interests, after obtaining all possible help from the client and others responsible for her care. As an alternative to the latter course of action, the lawyer could seek the appointment of a guardian ad litem who would have the responsibility for making such a judgment. The issue is further complicated by the difficulty of defining what constitutes "competency" or the capacity to make a considered judgment. As stated in the facts, we are not considering here the lawyer's obligations as a guardian or guardian ad litem, which are greatly different from those as counsel to a child. The statutory procedures of G.L.M. c.119 place the attorney in the role of counsel to the child. This role, which the Massachusetts legislature and courts have deemed appropriate for care and protection proceedings, establishes the basic context within which the issue must be addressed. See Opinion 80-4. The starting point is DR 7-101(A)(1), which obligates the lawyer to "seek the lawful objectives" of his client. The issue arises because the client is a minor. The Disciplinary Rules themselves do not address the problem. They are based, however, on the Model Code of Professional Responsibility. When the Supreme Judicial Court adopted the Disciplinary Rules embodied in the Model Code, it did not adopt the Ethical Considerations that accompanied them. It did, however, state that the Ethical Considerations "... form a body of principles upon which the Canons of Ethics and Disciplinary Rules, as herein adopted, are to be interpreted." Ethical Consideration 7-12 is relevant to this discussion. It provides: Any mental or physical condition of a client that renders him incapable of making a considered judgment on his own behalf casts additional responsibilities upon his lawyer. Where an incompetent is acting through a guardian or other legal representative, a lawyer must look to such representative for those decisions which are normally the prerogative of the client to make. 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. But obviously a lawyer cannot perform any act or make any decision which the law requires his client to perform or make, either acting for himself if competent, or by a duly constituted representative if legally incompetent. Since the Disciplinary Rules themselves do not speak to this issue, the committee believes that it is appropriate to take into account the language and the principles outlined in EC 7-12 in addressing this issue. By the same token, the committee is aware that EC 7-12 was drafted prior to the majority of court decisions dealing with the rights of children and that it must be viewed in that context. It is worthy of note that the language of EC 7-12 refers solely to "... mental or physical condition[s] of a client that renders him incapable of making a considered judgment on his own behalf ... ." As a matter of strict construction, EC 7-12 does not state that a legal condition, such as minority, should itself render someone incapable of making a considered judgment on his own behalf. In point of fact, Massachusetts law contains several examples of situations where minors, while "legally incompetent," are acknowledged as possessing the capacity to make considered judgments. See e.g., G.L.M. c.112, S12F (minor's ability to consent to most types of non-emergency medical care without parental consent), G.L.M. c.112, S12S (minor's ability to obtain abortion without parental consent), and G.L.M. c.210, S2 (minor's consent needed for an open adoption). Reading the Disciplinary Rules in light of EC 7-12 and the foregoing discussion, and given the uncertainty about the factual "competence" of the client in this case, it is the committee's opinion, depending on the lawyer's evaluation of the facts that go to make up "competence," that it would be appropriate for a lawyer to take any one of the following courses of action. (1) If the lawyer concludes that the 13-year-old client is competent to make decisions about her placement, the lawyer should present the minor client's position and seek her lawful objectives in accordance with the mandate of DR 7-101(A)(1), even if the lawyer believes the client's position to be mistaken. See this committee's Opinion No. 80-4 advising that an attorney appointed by the court in an involuntary commitment proceeding had an obligation to represent his client's "clearly" expressed desires against commitment if the client appears competent, even if the lawyer believes that a better approach was to have client's sister appointed guardian for a limited purpose. (2) If the lawyer concludes that his client is competent to make decisions on her own behalf, and, therefore, that she is entitled to have her position advocated in court, but also believes that her position is so inappropriate that he is incapable of urging the court to adopt it, then it would be appropriate for the lawyer to seek to withdraw, pursuant to the provisions of DR 2-110(A) and (C). In making such a motion, it is permissible for the lawyer to identify the particular provision that justifies withdrawal--e.g., DR 2-110(C), (A)(4)(d) or (C)(6), but he should be careful not to disclose his client's confidences and secrets so as not to prejudice the efforts of successor counsel. The lawyer may deem it appropriate to seek an in camera hearing (before a judge who will not be sitting as the "trial judge") in order to be able to explain the reasons for the withdrawal sought. If necessary, the lawyer may even move for such an in camera hearing to be on an ex parte basis for the purposes of withdrawal only. (3) If the lawyer concludes, in accordance with EC 7-12, that his client's physical or mental condition renders her "incompetent" such that the lawyer will have to make decisions on her behalf, the lawyer should obtain all possible aid from his client, "... consider all circumstances then prevailing and act with care to safeguard and advance the interests of his client." In determining the actual interests of an incompetent client, the lawyer should attempt to gather evidence, from whatever sources are available, as to what the child actually desires. The lawyer should then represent the child's interests to the best of his ability. When faced with this third hypothetical, a lawyer must keep two important points in mind. First, although a decision by the client to engage in behavior that is clearly and demonstrably against the child's best interests may, in certain cases, suggest that the child is "incompetent," the lawyer must guard against assuming that the child is automatically incompetent in such circumstances. The issue of competence is, in large measure, separate and apart from the issue of what is in the child's interest. This distinction is clearer when the client is an adult, since lawyers do not automatically assume that an adult client is incompetent merely because the client chooses a course of action that is against the client's interest as the lawyer sees it. Although the distinction is less clear when minor clients are involved, it is not eliminated. Second, once having determined that the child is "incompetent," the lawyer must further guard against advancing his own beliefs as to what is in the child's best interests. It is worthy of note that EC 7-12 does not state that the attorney should advance the best interests of his client, but rather the client's actual interests. For example, the fact that the lawyer cannot imagine raising his or her child in the manner sought by the child is not necessarily relevant. Rather, the lawyer must seek to determine and advance the client's interests, as the client would define them if the client were able to make a competent judgment on the issue. Where the lawyer, in consultation with others, determines that the child's interest, as so defined, lies in a direction different from that actually expressed by the child, the lawyer may inform the court of the substituted judgment determination, but should also advise the court of the client's own interests and desires, taking care to minimize the disclosure of client confidences and secrets. Again, as above, the lawyer may decide that an in camera hearing (perhaps ex parte as well) should be sought to seek the court's instructions. In this instance, the lawyer will have decided not to seek to withdraw, thus not running the risk of leaving the "incompetent" child abandoned. Alternatively, the lawyer might seek the appointment of a guardian ad litem to assist the court in determining the child's best interests, even though the mere suggestion involves, implicitly, some violation of the client's confidences. Prior to seeking such an appointment, however, the lawyer should discuss this course of action with his client and attempt to obtain the client's permission. If the client refuses, the lawyer may advocate the appointment, taking care to minimize the disclosure of client confidences and secrets. Again, however, the lawyer must not advocate such an appointment, especially over the client's objections, merely because the lawyer's personal view is that the client's preferred course of action is an undesirable one. As a final note, the committee points out that if the child wishes to engage in illegal activity, DR 7-102(A)(7) prohibits an attorney from counseling or assisting "... his client in conduct that the lawyer knows to be illegal or fraudulent." In the past we have given somewhat conflicting advice on issues relating to this inquiry. See Opinion 76-1. The advice given in that opinion is modified by the advice contained in this opinion.

Permission to publish granted by the Board of Delegates on June 18, 1993. As stated in the Rules of the Committee on Professional Ethics, this advice is that of a committee without official government status.