INTRODUCTION
Early legal representation plays a critical role in keeping families together and preventing unnecessary foster care placements. In recent years, many jurisdictions have embraced preventive and prepetition legal representation for parents as a powerful tool to help stabilize families and reduce system involvement. While less commonly discussed, these legal interventions are also impactful for youth clients at risk of child welfare entanglement. This fact sheet explores key ethical considerations, funding opportunities, and existing models for providing preventive legal advocacy services to young people.
Yes, Minors Can Be Clients.
It is a common misconception that a child is only able to receive legal representation through judicial appointment. To the contrary, minors do not need court or parental approval to enter attorney client relationships. Courts have repeatedly held that minors may enter fair and reasonable legal retainers. See, e.g., Phillips v. Nationwide Mut. Ins. Co., 347 So. 2d 465, 466-67 (Fla. 2d DCA 1977). The enforceability of these agreements is determined by the law governing minor’s contracts. See Wagsta v. Superior Court, Family Ct. Division, 535 P.2d 1220 (Alaska 1975). As opposed to adult contracts, contracts involving a minor are voidable at the minor’s election. Putnal v. Walker, 55 So. 844, 845 (Fla. 1911). The privilege to void the contract is personal to the minor, and the other party (the attorney) is bound by the contract, provided the minor adheres to it. Sample v. Ward, 23 So. 2d 81, 85.
While minors may independently enter attorney-client relationships, questions may arise as to how representation should function. Professional Conduct Rule 1.14 provides clear guidance, emphasizing a lawyer’s fundamental duties remain unchanged even when a client’s decision-making capacity may be affected by age.
Rule 1.14: Client with Diminished Capacity
- Text: “When a client’s capacity to make adequately considered decisions in connection with a representation is diminished, whether because of minority, mental impairment, or for some other reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client.”
- Comment [1]: “The normal client-lawyer relationship is based on the assumption that the client. . . is capable of making decisions about important matters. When the client is a minor. . . maintaining the ordinary client-lawyer relationship may not be possible in all respects. . . . Nevertheless, a client with diminished capacity often has the ability to understand, deliberate upon, and reach conclusions about matters affecting the client’s own well-being.” Furthermore, “children as young as five or six years of age, and certainly those of ten or twelve, are regarded as having opinions that are entitled to weight in legal proceedings concerning their custody.”