Must a lawyer follow a 13-year-old client's wishes in a care-and-protection case when professionals think those wishes are against the child's best interests?
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This page answers the general question as of 1993. Ezel answers yours: whether it's allowed on your facts, under the current Massachusetts Rules of Professional Conduct, with citations.
Plain-English summary
A lawyer represented a 13-year-old girl, as her attorney rather than her guardian ad litem, in an ongoing care-and-protection petition. She had been removed from her mother's home and placed in a residential setting after a finding of unfitness, and she now wanted to return home and asked the lawyer to argue for that. The professionals involved, and the lawyer, believed reunification would be inappropriate. The lawyer asked what to do given the conflict between the client's wishes and the professionals' view of her best interests.
The committee started from DR 7-101(A)(1), which obligates the lawyer to seek the lawful objectives of the client. Because the Disciplinary Rules did not address the minority problem directly, the committee looked to Ethical Consideration 7-12, which addresses a client whose condition renders him incapable of making a considered judgment, while noting that EC 7-12 predated much of the case law on children's rights and that, by its terms, it spoke to mental or physical conditions, not to minority as such. The committee observed that Massachusetts law recognizes various situations in which minors, though legally incompetent, can make considered judgments.
Reading the rules together, the committee said the lawyer's path turned on an assessment of the child's actual competence, and it laid out three permissible courses. First, if the lawyer concludes the child is competent to decide about her placement, the lawyer should advocate her stated position under DR 7-101(A)(1), even if the lawyer thinks it mistaken. Second, if the child is competent but the lawyer cannot urge her position, the lawyer may seek to withdraw under DR 2-110, taking care not to disclose confidences, and may request an in camera or ex parte hearing to explain the reasons. Third, if the lawyer concludes the child is incompetent, the lawyer may make decisions on her behalf, but must base them on the child's actual interests as she would define them if competent, not on the lawyer's own view of her best interests, and may alternatively seek a guardian ad litem after first discussing it with the child. The committee cautioned that a child should not be presumed incompetent merely for choosing a course against her own interests, and that DR 7-102(A)(7) bars assisting a client in conduct the lawyer knows to be illegal. The opinion modified earlier Opinion 76-1 to the extent of any conflict.
Currency note
This opinion was issued in 1993, before Massachusetts's adoption of the 2015 revisions to the Rules of Professional Conduct. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.
Common questions
Q: Must a lawyer argue a minor client's position even if it seems against the child's interests?
A: If the lawyer concludes the minor is competent to make the decision, yes. The committee said the lawyer should seek the competent client's lawful objectives under DR 7-101(A)(1), even if the lawyer believes the position is mistaken.
Q: What can the lawyer do if unable to advocate the competent minor's position?
A: The committee said the lawyer may seek to withdraw under DR 2-110, taking care not to disclose the client's confidences, and may ask for an in camera (and if necessary ex parte) hearing to explain the reasons for withdrawal.
Q: When may the lawyer substitute his own judgment for the child's wishes?
A: Only after concluding the child is incompetent. Even then, the committee said the lawyer must act on the child's actual interests as the child would define them if competent, not on the lawyer's own view, and may instead seek a guardian ad litem after discussing it with the child.
Background and rules framework
The opinion applied DR 7-101(A)(1) (seeking the client's lawful objectives), corresponding to Model Rule 1.2, in light of Ethical Consideration 7-12 (clients incapable of considered judgment), the predecessor to the diminished-capacity framework of Model Rule 1.14, and DR 2-110 (withdrawal), corresponding to Model Rule 1.16. It also noted DR 7-102(A)(7) (not assisting illegal conduct).
Citations and references
Rules of Professional Conduct:
- Model Rule 1.2 / DR 7-101(A)(1) (scope of representation; client's objectives)
- Model Rule 1.14 / EC 7-12 (client with diminished capacity)
- Model Rule 1.16 / DR 2-110 (withdrawal)
Statutes:
- G.L. c. 119 (care and protection proceedings; lawyer as counsel to the child)
Other opinions cited:
- MBA Opinion 80-4 (duty to advocate a competent client's clearly expressed wishes)
- MBA Opinion 76-1 (modified to the extent of any conflict with this opinion)
See also
- MA Bar Ethics Op. 01-2: Disclosing to prevent a client's threatened suicide
- MA Bar Ethics Op. 98-1: Ghostwriting and unbundled help for pro se litigants
Source
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