Browsing by Author "Malempati, S."
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Item Beyond Paternalism: The Role of Counsel for Children in Abuse and Neglect Proceedings UNH(University of New Hampshire Law Review, 2013) Malempati, S.When children are abused or neglected, the State often intervenes and assumes care and control of the child. As a result, legal proceedings begin in a juvenile court. The decisions made during such proceedings directly impact the substantive and procedural due process rights of children. Juvenile courts routinely appoint lawyers to represent children in abuse and neglect cases. However, the appointed lawyers receive conflicting directives about their roles. Lawyers for children are often instructed to take on a guardian ad litem role through which they make a recommendation to the court about the “best interests” of the child, rather than to act in the traditional attorney role and advocate for the child client’s legal interests. This guardian ad litem model of lawyering is ineffective in the context of a rights-based juvenile court system. The better model is that of the traditional attorney who gives voice to the client’s wishes and advocates for the protection of the child’s legal rights. The traditional attorney model necessarily encompasses the best interests of the client while also giving voice to the child’s wishes. The model of representation for children in abuse and neglect proceedings must transcend the paternalistic notion that lawyers know what is best for children. Only true legal advocacy will effectively protect the legal rights of child clients. In juvenile proceedings, a child’s right to counsel should mean a right to counsel who functions as an advocate not as a guardian ad litem. (Author Abstract)Item Effective Representation of Children in Abuse and Neglect Proceedings: The Ethics and Skills of Advocacy.(Atlanta's John Marshall Law School, 2013) Malempati, S.Lawyers, who represent children in abuse and neglect proceedings, face ambiguities in the role they are to assume and the manner in which they must confront ethical issues that arise during the course of representation. Lawyers often represent children as guardians ad litem and make recommendations to the court about the children’s best interests, without necessarily giving weight to the children’s opinions. In doing so, lawyers tend to bypass the ethical and professional rules that govern the lawyer-client relationship and are unable to effectively advocate for the child client’s legal rights. Preconceptions about children’s lack of capacity have led to a paternalistic approach to the representation of children. Our legal system assumes that children, in general, are incapable of rational decision-making. The common presumption is that children do not know what is in their best interests and that they often desire outcomes that conflict with what would be in their best interests. This may be true under some circumstances, but not all. In many cases, if not the majority, children can communicate with their lawyers, understand their options, and assist their advocates. In addition, when lawyers function in their traditional roles as advocates, they can assist the child clients in the comprehension of factual and legal issues involved in their cases and thereby facilitate the decision-making process. Children involved in the court system need true legal advocacy in the form of the traditional lawyer-client model. Lawyers who take on the advocate role must operate within the ethical rules set forth by the profession. When faced with the task of representing diminished capacity clients, lawyers should look to the governing rules and represent their clients within that framework. This article addresses the primary dilemmas lawyers face when representing children in abuse and neglect proceedings and how lawyers can effectively advocate for their child clients.Item Ethics, Advocacy, and the Child Client(Cardozo Public Law, Policy & Ethics Journal, 2013) Malempati, S.Lawyers, who represent children in abuse and neglect proceedings, face ambiguities in the role they are to assume and the manner in which they must confront ethical issues that arise during the course of representation. Lawyers often represent children as guardians ad litem and make recommendations to the court about the children’s best interests, without necessarily giving weight to the children’s opinions. In doing so, lawyers tend to bypass the ethical and professional rules that govern the lawyer-client relationship and are unable to effectively advocate for the child client’s legal rights. Preconceptions about children’s lack of capacity have led to a paternalistic approach to the representation of children. Our legal system assumes that children, in general, are incapable of rational decision-making. The common presumption is that children do not know what is in their best interests and that they often desire outcomes that conflict with what would be in their best interests. This may be true under some circumstances, but not all. In many cases, if not the majority, children can communicate with their lawyers, understand their options, and assist their advocates. In addition, when lawyers function in their traditional roles as advocates, they can assist the child clients in the comprehension of factual and legal issues involved in their cases and thereby facilitate the decision-making process. Children involved in the court system need true legal advocacy in the form of the traditional lawyer-client model. Lawyers who take on the advocate role must operate within the ethical rules set forth by the profession. When faced with the task of representing diminished capacity clients, lawyers should look to the governing rules and represent their clients within that framework. This article addresses the primary dilemmas lawyers face when representing children in abuse and neglect proceedings and how lawyers can effectively advocate for their child clients. (Author Abstract)