Sunday, September 12, 2010

On the role of counsel in delinquency proceedings: Guardian or Advocate?

The Chicago Daily Law Bulletin is reporting that in a petition for leave to appeal in a case called In re Rodney S. (No. 110963), a minor is urging the Illinois Supreme Court to reverse his adjudication of delinquency claiming he was deprived the right to counsel when his attorney acted as his attorney and as a guardian ad litem at the same time.

According to the article, the petition cites a 2007 report on delinquency representation in Illinois that concludes that "the type of delinquency representation provided in Illinois courtrooms varies from county to county, with some delinquency attorneys practicing 'best interest' representation, others following the 'express interest' model, and still others acting as both defense attorney and [guardian ad litem]." You can find the article here if you have an online subscription to the Chicago Daily Law Bulletin. Otherwise, look for it in print in the September 10, 2010 issue (Vol.156, Issue 177).

The petition originates from a decision by the 4th District Appellate Court holding, among other things, that the roles of a defense attorney and guardian ad litem are not always in conflict because they both have an obligation "to protect the juvenile's best interest even if those interests do not correspond with the juvenile's wishes."

That statement displays a complete lack of understanding of the very notion of the attorney-client relationship. The notion that some attorneys are attempting to serve as guardians at litem and advocates for the minors at the same time is inconceivable to me. The two roles are, by definition, almost always incompatible. I hope the Court takes the case and issues an opinion clarifying the matter.

I also hope that the court takes a careful look at In the Matter of MR, 638 A.2d 1274 (NJ 1994), an opinion of the New Jersey Supreme Court, which is one of the best opinions I have seen on this subject (the reason I assign it to my students when we discuss this issue).

The case provides a very clear explanation of the problem and the proper approach. I hope the Illinois Supreme Court takes a look at it in deciding the case before it. In MR, the New Jersey Supreme Court explains the proper role of an attorney for an incompetent or a minor in the following terms:

As we have recognized in other contexts, the attorney’s role differs from that of a guardian ad litem. . . . A court-appointed counsel’s services are to the child. Counsel acts as an independent legal advocate . . . and takes an active part in the hearing, ranging from subpoenaing and cross-examining witnesses to appealing the decision, if warranted. If the purpose of the appointment is for legal advocacy, then counsel would be appointed. A court-appointed guardian ad litem’s services are to the court ... The GAL acts as an independent fact finder, investigator and evaluator as to what furthers the best interests of the child. The GAL submits a written report to the court and is available to testify. If the purpose of the appointment is for independent investigation and fact finding, then a GAL would be appointed. The GAL can be an attorney, a social worker, a mental health professional or other appropriate person. . . . .

. . . [T]he role of an attorney in abuse or neglect cases and in termination of parental rights cases must be as an advocate for the child. Nothing short of zealous representation is adequate to protect a child’s fundamental legal rights. . . . Requiring attorneys to act as counsel for children in these cases, does not deprive the court of the benefit of the type of assistance afforded by a guardian ad litem. Clearly, as counsel for the child, an attorney could request the additional appointment of a guardian ad litem, and the court sua sponte could do so if deemed necessary. Yet by clarifying an attorney’s role as counsel for the child, substantial evidentiary and procedural dilemmas could be solved. Under the present situation where attorneys assume a hybrid role of attorney/social investigator, questions arise such as the right of the attorney to speak with the parties outside the presence of their counsel; whether communications between a child and the attorney are privileged; and whether an attorney who submits an investigative report is subject to cross-examination. Finally, having attorneys act as counsel for children insures that they are being utilized for a role for which they are trained and suited. . . .

In sum, if it is true that there is confusion (or inconsistency) among Illinois courts on the proper approach to representation of minors in delinquency proceedings, I would fully support a petition to the Supreme Court to clarify the distinction between an attorney and a guardian ad litem.

In delinquency proceedings, the difference between attorneys and GALs is critical. The attorney should follow the client's wishes with the goal of avoiding a conviction or adjudication of delinquency. The guardian, on the other hand, has to fulfill a duty to the court and to act in the best interest of the minor. These two approaches will not necessarily lead in the same direction and should, thus, never be combined or confused. If that is happening now, attorneys are attempting to do the impossible, or, at least, are acting under a clear conflict of interest and the Court should put a stop to it.

According to the petition in In Re Rodney S., the attorney for the minor identified himself as a guardian at litem in court and advocated against the minor's desire to stay at his mother's home. If that is the case, the attorney provided ineffective assistance of counsel. If he was supposed to be advocating for his client, his job was to represent his client, not to advocate against his client. If, on the other hand, he had been specifically appointed to serve as a guardian ad litem by the court, then the minor simply had no legal representation at all in violation of his rights. Any way you look at it, the Court should, therefore, reverse and fix the problem.

You can read the opinion in In re Rodney S. here.  In particular take a look at pages 9 to 11.

UPDATE 9/1/11:  The Court rejected the appeal in In re Rodney S., but a few weeks later granted review in another case that raises the same issue.  That case is called In re Austin M, and it is available here.  The oral argument before the court of appeals in this case is available here.  The oral argument before the Illinois Supreme Court is scheduled for this fall and the case should be decided by the end of this term.

UPDATE 1/12:   The video of the oral argument before the IL Supreme Court is available here.  If you prefer just the audio, go here.

UPDATE 9/1/12:  The Supreme Court ruled an attorney can't serve as advocate and guardian at the same time.  Go here for more information and links.

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