Representing a Minor

Representing minor children raises the issue of “who is the client?” Because the lawyer will most often be contacted initially by the student’s parent, it is easy to think of the parent as the client. It is important to remember, however, that the student is the client. Even when the student is a minor, the attorney-client relationship is with the student. The Rules of Professional Conduct (Rule 1.14) state that the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the minor, particularly with regard to communication. This means that the lawyer owes a duty of confidentiality to the minor child, even with respect to the child’s parents.

The Rules recognize, however, that maintaining the ordinary client-lawyer relationship may not be possible in all respects. Communication about the case directly with the parents is usually helpful and often necessary. If a parent needs to know confidential information to make a “legally binding decision,” on behalf of his minor child, then the information may be revealed. (See 98 Formal Ethics Opinion 18.) One approach is to ask the parent to allow you to talk privately to the student. The lawyer should explain the concept of confidentiality and communicate clearly to the student that he or she is the student’s lawyer and not the parent’s lawyer. Ask the student directly if there is anything about the case that the student wants to keep confidential from his or her parent. If there is, the lawyer is obliged to keep that confidential except in the rare circumstance that it is necessary for a parent to make a legally binding decision. If the student reveals to the attorney that he or she has not been truthful with his or her parent and plans to persist in that untruthfulness in the school hearing, the lawyer most likely will need to decline the representation or withdraw if that can be done consistent with the rules of ethics.