A generation ago, the Law Journal published two "Outside Counsel" articles I had authored which analyzed the role and responsibilities of attorneys who represented children in the Family Court. Representing Child Clients: Role of Counsel or Law Guardian (Oct. 6, 1992) and The Child's Right to Meaningful Representation (Nov. 30, 1993). The articles portrayed a representation system in which counsel had scant guidance and were bound by few specific legal rules. The prevalent model was "best interests" oriented, with the child's attorney arguing and advancing what he subjectively determined to be his client's best interests. The misapprehension was bolstered by the statutory designation of the child's attorney as "law guardian." Although the Family Court Act defined a law guardian as "… an attorney … designated under this part to represent minors…, [F.C.A. §242; the term "law guardian" was repealed in 2010] the very words "law guardian" suggested a similarity to a different and inapplicable concept, "guardian ad litem." Further, the Act had never authorized the law guardian to advocate her client's "best interests," as opposed to the traditional role of counsel to protect the client's legal interests. See F.C.A. §241. The word "best" was simply engrafted onto the statute by practice and case law.

Although many law guardians assumed the historical posture of a client-driven relationship, particularly in juvenile delinquency proceedings, the predominant theme was the amorphous "best interest" model. Representation was frequently grounded upon the subjective views of appointed counsel; child "A" hence received vastly different representation than child "B."

The subjective paradigm shifted significantly in 2008 when Chief Judge Judith Kaye promulgated a rule stipulating that the law guardian or "the attorney for the child" is subject to the ethical requirements applicable to all lawyers." §7.2 of the Rules of the Chief Judge. The rule, still in effect, continued by requiring a traditional attorney-client relationship in most cases, including adherence to the wishes of the child-client. The limited exceptions, needed when representing very young children who lack the capacity to guide counsel, or when the child's position as articulated to the lawyer is "likely to result in a substantial risk of imminent, serious harm to the child," were applicable to only a small percentage of cases. The large majority of children, or at least children above the age of seven, are capable of articulating their interests and wishes. Imminent serious harm is not often present, and when confronting the situation an attorney is almost always able to shape her position to advocate, after consultation with the child, for a result which is close to the child's desires without subjecting her to "imminent serious harm."