The information in this blog post is current as of October 1, 2024.
The ABA Children’s Immigration Law Academy (CILA) created this blog post to help advocates understand ethical issues that can arise when working with children and how to approach concerns about a child client’s capacity to participate in their immigration case.
This post begins with an overview of the ethical duties an attorney owes a child client and how children should generally be active participants in their legal case to the same extent as adults. Next, this post considers what it means for a child client to have “diminished capacity” and what an advocate can do if they have concerns about a child’s ability to make decisions in the legal case. Finally, the post ends with links to additional resources for those who would like to learn more about this topic.
Please note that this post is not intended as legal advice and is for informational purposes only. It should not substitute your own research and analysis.
Note About the Sources of Law: This post analyzes ethical issues under the ABA Model Rules of Professional Conduct (“ABA Model Rules”). While not binding on any jurisdiction, the ABA Model Rules provide guidance nationwide and closely resemble the applicable rules in many states. In addition, the ABA Standing Committee on Ethics and Professional Responsibility issues Formal Opinions that advise on how to apply the ABA Model Rules in certain circumstances. This blog post also references the ABA Commission on Immigration’s Standards for the Custody, Placement and Care; Legal Representation; and Adjudication of Unaccompanied Children in the United States (“ABA Standards”), which were developed in August 2018 by an interdisciplinary team to help guide advocates working with unaccompanied youth. It is always important to research the specific laws and rules that would apply to your case, as well as any applicable policies at your organization.
When thinking about ethical issues involving child clients and their ability to participate in a case, it is important to understand that an attorney owes a child client the same duties as an adult client, including the duties of loyalty, confidentiality, communication, and competency (ABA Standards at 16). Child clients also have the same rights to participate in their case and to make decisions regarding the objectives of the legal representation (see ABA Model Rule 1.2).
The attorney-client relationship under the ABA Model Rules is based on the assumption that the client—including a child client—is capable of making decisions about important matters when properly advised by the attorney (Comment 1 to ABA Model Rule 1.14). In fact, an attorney is obligated to ensure a child client participates in their case to the greatest extent possible and should take all reasonable steps to communicate with the child about the case in a language and manner that the child client understands (ABA Standards at 16).
The ABA Model Rules adopt a client-directed approach to legal representation, which means that attorneys must represent the expressed interests of the client, even if they differ from what the attorney personally believes is in the client’s best interest. Under ABA Model Rule 1.2, “a lawyer shall abide by a client's decisions concerning the objectives of representation” and “shall consult with the client as to the means by which they are to be pursued.” The attorney’s duty of communication under ABA Model Rule 1.4 further includes “explain[ing] a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.” In children’s cases, there have been articles published discussing whether it makes sense to adopt a client-directed or best-interests approach, and this may still be an area that varies in some states (see ABA Standards at 77, n.33). However, the ABA Model Rules do not differentiate between children’s and adult’s cases and clearly instruct attorneys to follow a client-directed approach (see Bruce A. Boyer, Representing Child-Clients with “Diminished Capacity”: Navigating an Ethical Minefield, 24 The Professional Lawyer (Mar. 2016)).
Attorneys sometimes have concerns about a child’s ability to make decisions in their case. The ethical rules use the term “capacity” to refer to a client’s ability to understand information about their case and to appreciate the consequences of their decisions. (ABA Standards at 17.) Note that a client’s “competency” is a related concept that is discussed in this CILA blog post on “Protecting Unaccompanied Children who are Not Competent to Participate in Removal Proceedings” (Apr. 2024).
A client’s capacity is not fixed and can change depending on the circumstances. Indeed, the ABA Standards describe capacity as “contextual and incremental,” and in some cases “intermittent.” Among other things, a client’s capacity may be impacted by their age, maturity, development, level of education, or ability to communicate, as well as personal circumstances some of which could change day-by-day. For instance, a client after a particularly difficult meeting that involved having to recall traumatic events might have more difficult participating in conversations about their case. The lawyer may need to schedule a follow up meeting to continue the conversation when they are in a better mindset to understand the information and make decisions.
When assessing a client’s capacity, it is also important for an attorney to be aware of and remove any personal biases. A client does not necessarily lack capacity just because the lawyer disagrees with the client about what is best for their case (see ABA Standards at 17). Remember that the ABA Model Rules have a client-directed approach and that decisions about the objectives of the representations are ultimately up to the client (ABA Model Rule 1.2).
Note about entering into representation agreements: Working with very young children or babies can raise a question of whether it is possible to even enter into an attorney-client relationship because of concerns about the potential client’s ability to communicate their decisions or protect their interests. While the ABA Model Rules do not recognize a set age in which a person is considered to have developed decision making capacity, the comments note that “children as young as five or six years of age” have actively participated in legal proceedings (Comment 1 to ABA Model Rule 1.14). Similarly, there is no minimum age regarding a child’s ability to understand and consent to sign an engagement letter. Best practice for how to structure the representation agreement and whether there needs to be a trusted family member involved may depend on the type of case and the applicable state laws regarding contracting with a minor (see CILA & Kids In Need of Defense (KIND), Ethical Considerations in Representing Children (2018) at 10). In very limited circumstances, the ABA Model Rules allow a lawyer to take legal action for someone who is unable to establish a lawyer-client relationship if the person has “seriously diminished capacity” and action on their behalf is necessary to prevent “imminent and irreparable harm” (Comment 9 to ABA Model Rule 1.14). Even then, the lawyer must only act to the extent reasonably necessary to maintain the status quo and/or prevent imminent and irreparable harm and only if that person has no other lawyer, agent, or representative available (id.).
Step 1: Try & maintain a “normal attorney-client relationship”
The starting point when concerns arise about a child client’s ability to make decisions in their case is to try and help them understand the relevant information so that the youth can continue being an active participant in their case. Under ABA Model Rule 1.14, a lawyer should “maintain a normal client-lawyer relationship with the client” as far as “reasonably possibly,” even when they have some concerns about a client’s capacity because of their age, a mental impairment, or any other reasons. Practitioners who are new to working with children should educate themselves about child development and how best to work with youth. Different communication techniques may also be needed when working with children.
The following are some of the CILA resources available online that can help advocates working with children and maintaining a normal attorney-client relationship:
- Working with Unaccompanied Children: Mental and Behavioral Heath Toolkit (2022)
- Pro Bono Guide for Working with Children and Youth in Immigration Cases (updated 2023) (Section on “Effective Representation” includes “Interviewing Tips and Strategies,” “Working with Interpreters and Translators,” and “Trauma-Informed Lawyering”)
- Written materials for CILA accountholders (Create a free account here.)
- Toolkit for Navigating Difficult Conversations with Child Clients: Guidance & Examples
- CILA & Loyola Center for the Human Rights of Children, “Considerations for Tender-Aged Children in Immigration Court Proceedings” (Sept. 28, 2023)
- Recorded webinars (Additional advanced trainings on children’s immigration issues are available online here.)
- Child Interviewing Techniques (Nov. 2, 2021)
- Innovative Communication Tools and Resources – Using Play, Active Engagement, and Trust Building with Unaccompanied Children (May 20, 2022)
- Legal Services for Tender-Age Children and Best Practices When Providing Services Remotely (May 21, 2021)
- Cultural Humility in Trauma-Informed Services: Auditing Implicit Bias to Provide Culturally Humble Legal Support (May 30, 2024)
- Advocating with Empathy: Awareness and Practical Guidance for Working with Unaccompanied Minors with Disabilities (Apr. 24, 2024)
Step 2: Take reasonably necessary protective actions
The ABA Model Rules recognize that it may not always be possible to maintain a normal attorney-client relationship and that further action may be needed to protect clients with diminished capacity. However, the lawyer is only authorized to take additional action in limited circumstances involving a substantial risk of harm to the client. Specifically, ABA Model Rule 1.14(b) states that
- A lawyer “may take reasonably necessary protective action”
- When the lawyer “reasonably believes” that the client
- Has diminished capacity,
- Is at risk of substantial physical, financial or other harm unless action is taken, and
- Cannot adequately act in the client’s own interest.
Thus, the key questions when deciding if the attorney should take protective action to help a client with diminished capacity are (1) whether the protective action is necessary, which requires identifying a substantial risk of harm to the client, and (2) what is “reasonably necessary” to protect the client from this risk of harm. An attorney will want to carefully consider their options before proceeding and be guided by the principle that a less intrusive approach is preferred when possible. When deciding what action to take, the lawyer should consider the:
- Wishes and values of the client to the extent known,
- Client's best interests, and the
- Goals of intruding into the client's decision-making autonomy to the least extent feasible, maximizing client capacities, and respecting the client's family and social connections.
(Comment 5 to ABA Model Rule 1.14).
The types of protective actions allowed by the ABA Model Rules include:
- Consulting with family members or other trusted individuals
- Consulting with support groups, professional services, adult-protective agencies or other individuals or entities that have the ability to protect the client
- Using voluntary surrogate decision-making tools such as durable powers of attorney
- Seeking the appointment of a guardian ad litem, conservator or guardian
(ABA Model Rule 1.14 & Comment 1). For unaccompanied children, potential protective actions also include seeking to appoint a child advocate (ABA Standards at 18). The Young Center’s website has more information about the child advocate program and how to refer a child for appointment.
Seeking to involve a trusted family member is one of the more common types of protective action in children’s cases (see ABA Standards at 18). However, keep in mind that unaccompanied children may have been abused by a family member, and the attorney should consider the child’s history and if there are any concerns about the relationship with the family member before involving them in the case. It is also important for the lawyer to keep the child client at the center of the representation and to avoid looking to family members to make decisions for the client (Comment 3 to ABA Model Rule 1.14). The need to involve the family member may change over time, especially when representing children in the immigration backlog who may have to wait years for relief. The lawyer will want to continuously assess the child client’s capacity and may determine that the family member’s involvement is no longer needed after a period of time.
Finally, involving family members in the legal case along with some of the other types of protective actions can raise concerns about the lawyer’s duty of confidentiality to the child client and the attorney-client privilege. ABA Model Rule 1.14(c) allows an attorney taking protective action to “reveal information about the client, but only to the extent reasonably necessary to protect the client's interests.” The comments further explain how the attorney-client privilege should generally not be affected when the involvement of a family member or other person in attorney-client communications is necessary to assist in the lawyer’s representation (Comment 3 to ABA Model Rule 1.14). Accordingly, the lawyer may take protective actions without violating their duty of confidentiality or breaking privilege but should proceed cautiously to ensure that they do not disclose confidential information beyond what is reasonably necessary to protect the child client.
Check out the following resources to learn more about ethics and capacity issues in unaccompanied children’s cases.
Recorded trainings
- CILA webinar, Identifying and Raising Capacity and Mental Competency Issues in Children’s Immigration Cases (Jan. 22, 2019)
- CILA webinar, Sticky Issues: Ethical Challenges in Representing Unaccompanied Children (Nov. 2019)
- CILA 101 Webinar - Ethical Representation of Unaccompanied Children
CILA written resources
- CILA, Pro Bono Guide for Working with Children and Youth in Immigration Cases (updated Oct. 2023)
- CILA & Kids In Need of Defense (KIND), Ethical Considerations in Representing Children (2018)
- CILA blog post, “Protecting Unaccompanied Children who are Not Competent to Participate in Removal Proceedings” (Apr. 2024)
- CILA, Toolkit for Navigating Difficult Conversations with Child Clients: Guidance & Examples (CILA account required for access. Create a free CILA account here.)
- CILA & Loyola Center for the Human Rights of Children, “Considerations for Tender-Aged Children in Immigration Court Proceedings” (Sept. 28, 2023) (CILA account required for access. Create a free CILA account here.)
Other written resources
- National Immigrant Justice Center (NIJC), “Justice for Unaccompanied Immigrant Children: An Advocacy Best Practices Manual for Legal Service Providers” (Apr. 2016)
- Chapter 7, “Anticipating and Contending with Conflicts and Ethical Challenges” includes guidance on how to approach various hypothetical case scenarios under the ABA Model Rules.
- AILA, Ethical Issues in Representing Children in Immigration Proceedings (Jan. 2015)
- Marzouk, Julie, Ethical and Effective Representation of Unaccompanied Immigrant Minors in Domestic Violence-Based Asylum Cases, 22 Clinical L. Rev. 395 (Mar. 2016)
- Vera Institute of Justice, Working with Children: Ethical Issues and Standards of Practice (Annotated Bibliography) (updated Jan. 2015)
- Vera Institute of Justice, Guidelines for Obtaining Informed Consent from Minor Clients (July 2019)
- Lowenstein Sandler, Memo to Vera Institute of Justice, Ethical Obligations in Representing Children Without Capacity in Immigration Proceedings (Dec. 2018)