Attorneys for Children; No More Law Guardians

Governor Paterson has signed into law A.7805-B/S.5461-B, which amends the CPLR, the Executive Law, the Judiciary Law, the Family Court Act, the Public Health law and the Social Services Law to substitute the term "attorney" or "counsel" for "law guardian."

The Juvenile Rights Practice was a leader in the development of the role of the child’s attorney towards a traditional advocacy model and along with § 7.2 of the Rules of the Chief Judge, this legislation is a logical extension of recent developments in the area of child advocacy in New York State. It is also a change that will remove confusion about the vital role of JRP attorneys as advocates for our clients. Tamara Steckler, Attorney-in-Charge of JRP, said she wants to specifically thank both Karen Gutheil and Gary Solomon for their significant roles in effectuating this important change.

New York Law Journal
Signals New Approach to Revised Wording Representation of Children
By Joel Stashenko
April 20, 2010

ALBANY - Governor David A. Paterson has approved an extensive overhaul of statutory language designed to send a clear signal that attorneys who represent children in Family Court, like the lawyers who counsel adults, must be guided by the wishes of their juvenile clients.

Mr. Paterson last week signed a bill that signal that attorneys who represent children in Family Court, like the lawyers who counsel adults, must be guided by the wishes of their juvenile clients.

Mr. Paterson last week signed a bill that strikes the phrase "law guardian" from nearly two dozen sections of the CPLR, Domestic Relations Law, Executive Law, Judiciary Law, Family Court Act and other statutes and replaces it with "attorney for the child" or "counsel for the child." "I think that it is quite a bit more than semantics," said Family Court Judge Edwina Richardson-Mendelson, the New York City court's administrative judge. "We think the words 'attorneys for the child' make it crystal clear that we are dealing with a lawyer who is an advocate for the child. Use of the word 'guardian' can suggest more than a role as an attorney. It might suggest a role as a parental substitute to both the public and perhaps to court workers, and that is not what the attorney for the child's role is."

The new language mirrors the terminology of a 2007 court rule outlining the proper role of attorneys appointed to represent children in delinquency, foster care, custody and other proceedings. It began to crop up in new legislation passed in 2007 and 2008; the bill signed by Mr. Paterson, A7805B/S5461-B, conforms older laws with the new approach.

But some courts still cling to the old terminology. A Westlaw search yesterday indicated that there have been 126 references so far this year to "law guardian" in state court opinions, double the 63 to "attorney for the child."

The statutory changes, which took effect immediately, adopted the recommendation of a 2006 report from a matrimonial commission appointed by former Chief Judge Judith S. Kaye and chaired by former Appellate Division Justice Sondra M. Miller.

The commission found a widespread misconception about the role of law guardians. Testimony at hearings in 2004 and 2005 reflected a prevalent conception that law guardians should advance their own views of the children's best interests.

In fact, the commission argued that attorneys are bound to "vigorously" represent children in delinquency proceedings and, in other actions, to "diligently" advocate on their behalf by conveying the wishes of young people who are capable of expressing them, even if the attorney disagrees with those wishes.

"The court should not ask an attorney for the child for a recommendation or personal opinion," the commission concluded. "[T]he attorney for the child is not an arm of the court or a fiduciary and, as the attorney for the child, he or she must advocate on that child's behalf as is required of any other attorney in a civil proceeding or action."

State Court Rule

In October 2007, Judge Kaye signed §7.2 of the Rules of the Chief Judge in which she largely adopted the advocacy standards for attorneys representing young people recommended by the Miller commission.

"In ascertaining the child's position, the attorney for the child must consult with and advise the child to the extent of and in a manner consistent with the child's capacities, and have a thorough knowledge of the child's circumstances," §7.2 states. "If the child is capable of knowing, voluntary and considered judgment, the attorney for the child should be directed by the wishes of the child, even if the attorney for the child believes that what the child wants is not in the child's best interests."

Under the rule, an attorney must explain fully the options available to his child-client and may recommend to the child what the attorney thinks would be best. However, only where the attorney is convinced the child is not capable of making his own decisions or if there is a "substantial risk of imminent, serious harm to the child" if a child's wishes are granted, may the lawyer inform the court of his own opinion.

The bill signed by Mr. Paterson was introduced at the request of Chief Administrative Judge Ann Pfau on the recommendation of her Family Court Advisory and Rules Committee. It was sponsored by Assemblywoman Helene Weinstein, D-Brooklyn, chairwoman of the Assembly's Judiciary Committee, and Senate Codes Committee Chairman Eric Schneiderman, D-Manhattan.

Sponsors said the terminology change will eliminate confusion over the role of the attorney for the child.

Steven Banks, attorney-in-chief of the Legal Aid Society of New York City, which represents more than 30,000 children each year, said lines could get blurred in some situations, such as when local social services agencies fail to provide reports to courts on clients and attorneys feel compelled to do so, even though they have little or no mental health or other professional background.

"Frequently our lawyers have had to fill that gap, but the change in terminology makes it clear that our role is to be lawyers," Mr. Banks said. "The change in terminology is an important recognition that our lawyers are fundamentally representing clients, albeit young clients, who have the right to have an attorney represent them."

According to a 2008 Legal Aid report, "When the choice is between a lawyer who merely assists the judge in arriving at a decision the judge is fully qualified to make on her own, and a lawyer who provides the judge with a window into the child's unique perspective, the choice is a simple one. These are proceedings that can change the course of the child's life, and thus the child must be heard."