Conflicts of Interests in the Representation of Children

C ONFLICTS of interests arise whenever the representation of a client may be materially limited by the lawyer\u27s duties to either another client or a third person or by the interests of the lawyer herself.\u27 Analyzing such conflicts typically requires identifying situations involving a potentially impermissible conflict, determining whether the conflict is consentable, and, if it is, obtaining consent after full disclosure.2 Conflicts analysis is difficult enough when the client is an adult.3 When the client is a child, however, the analysis is complicated by a number of factors. For example, in the wide variety of cases in which children (or their interests) are involved, the child\u27s role varies enormously. In some cases, the child is actually a party; in others, the child has a legal interest of some sort; in still others, the outcome will affect the child only indirectly. Moreover, a child\u27s interests can be protected in a variety of fashions, some of which involve legal representation, some of which involve appointment of a guardian ad litem (who may be a lawyer), and some of which involve indirect protection through the participation of the parent. Even when it is clear that the lawyer\u27s role is actual representation, it may be unclear to whom the lawyer turns when decisions on behalf of the child are to be made. In some cases, the child may sue (or be sued) only through the parent as guardian or next friend. In other cases, the child may be named as a party, but the parent may assert the right to make some or all decisions on the child\u27s behalf. In still others, the child may not be a party at all, but the court may permit or assign a lawyer to represent either the child or the child\u27s guardian or guardian ad litem. Finally, the lawyer may choose or be asked to represent more than one party; for example, the lawyer may attempt to represent both parent and child, agency and child, or multiple siblings. All these situations involve at least the potential for conflicting interests; however, only some of the issues raised are amenable to resolution through conflict of interests analysis. Moreover, even among those issues that do fall within the purview of conflict of interests rules, there are several unique aspects of the representation of children which ultimately call for an analysis far more complex than that typically encountered in even the most intractable conflicts issues involving adults