The Right to Counsel Denied: Confusing the Roles of Lawyers and Guardians

Abstract

Even though it has long been recognized that minors have a Constitutional right to counsel in delinquency proceedings, there is significant evidence that there is confusion among attorneys and judges as to the proper role of attorneys who represent minors in delinquency proceedings. In many cases, judges and attorneys confuse the roles of an attorney for a minor client and of a guardian ad litem. Yet, these roles are fundamentally different. They are so different, in fact, that attempting to serve as an attorney and a guardian at the same time affects the effectiveness of the attorney’s role as an advocate for the minor, thus making it impossible for the attorney to provide the type of effective assistance of counsel that is guaranteed by the Constitution. For this reason, this article argues that the roles of attorneys and guardians ad litem should never be combined or confused. To the extent that this is what is happening across the United States, attorneys are attempting to do the impossible. In order to fulfill one role they will fail at the other, thus engaging in a per se conflict of interest.