Academic journal article Fordham Urban Law Journal

Lawyering in Juvenile Court: Lessons from a Civil Gideon Experiment

Academic journal article Fordham Urban Law Journal

Lawyering in Juvenile Court: Lessons from a Civil Gideon Experiment

Article excerpt

 I. Lawyering and Autonomy
 II. Lawyering in Juvenile Court
 III. Lessons Learned


After September 11, 2001, news reports and organizations estimated there were tens of thousands of children left orphaned by the attacks. (1) The New York Times reported that "secretaries at the New York State Office of Children and Family Services and press officers at [New York City's] Administration for Children's Services could hardly answer the telephone without hearing from people who had read news of the many hundreds, even thousands of orphans left in need of a home by the September 11 disaster." (2) "All were eagerly offering to adopt a World Trade Center orphan." (3) The Twin Towers Orphan Fund, established on September 13, 2001, raised millions of dollars (4) to provide long-term higher educational assistance and mental and physical health care assistance for the children orphaned by the attacks. (5) It soon became apparent, however, that there were no "Twin Towers orphans." "Not a single child [needed] foster care or adoption by strangers." (6) In contrast, the state of New York at that time had 2,558 orphaned children eligible for adoption. (7) While the imaginary orphans of September 11 elicited tremendous sympathy and charity, there was little outpouring of anger over the fate of children missing from foster care across the country. (8) The reasons for the difference may lie in the way society views both poverty and the responsibility for children. Simply put, society tends to view poverty as the fault of the poor. The general view is that, in this land of plenty, no one is poor unless he wants to be poor. In contrast, the "orphans" of the World Trade Center were not to blame for the September 11 attacks; as a result society felt responsible for them as a community.

This view of poverty dominates many of our public policy choices--not only about children and their families, but about those individuals in need--and structures public commitment to, and responsibility for, the poor. We often adopt approaches that place full responsibility on those least able to meet these demands because, as a society, we feel less communal responsibility for the poor, who often are contradictorily portrayed as shiftless, lazy, criminal, and easily duped. (9) For those proponents of a civil right to counsel, this view about poverty structures the debate concerning the existence, nature, and extent of that fight (that is, who gets a lawyer, what cases warrant the appointment of counsel, and who pays for the representative). But it also alludes to a deeper question about what it means to be a good lawyer for the poor and the degree to which the lawyer must facilitate client autonomy.

The extent to which the lawyer must accord the client autonomy remains a source of considerable debate. (10) From one perspective, ethical lawyering must be client-centered and client-empowering; within this paradigm, the attorney is partisan, loyal, zealous, subordinate, and nonaccountable. Dignity, freedom, and individual autonomy are central features. Under another view, however, the attorney is professionally independent of and perhaps even paternalistic toward the client, as well as morally accountable for the attorney's own actions. In this instance, notions of integrity are tied to larger concerns about the rights of others and an overarching duty to the principles of truth and justice. For poverty lawyers, the dominant vision of the poor as somehow "disabled" and thus less capable of exercising the kind of autonomy required within the attorney-client relationship, may allow others to challenge the legitimacy of an attorney-client relationship in which client autonomy is primary.

The kind of lawyering that occurs in juvenile court illustrates the challenges of client autonomy within the additional context of poverty. Because children are entitled to counsel (and court-appointed counsel if indigent) in delinquency cases as a matter of due process, (11) children are entitled to be represented by lawyers. …

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