Document Type

Article

Publication Title

Temple Law Review

Publication Date

2002

Abstract

Part I of this Article uses several examples from actual cases to illustrate that many of the statutes, ethical mandates, and representational standards which govern the actions of lawyers for children often implicitly require an expertise in mental health that can be obtained only through consultation with mental health professionals. Part II examines what confidentiality duty lawyers for diminished capacity children owe their clients, and under what conditions ethical rules might permit the disclosure of confidential information by such lawyers to consulting mental health professionals. Part II concludes that the disclosure of confidential information to a mental health consultant is ethical if it is necessary to meet an explicit representational responsibility of the lawyer, and if it is done in a manner which respects to the maximum degree possible the client's developing interest in maintaining the confidentiality of the information. Part III assesses the ethical viability of allowing lawyers for diminished capacity children to disclose information to consulting mental health professionals when a lawyer feels such disclosure would serve the best interests of her client. This Part revisits some of the case examples from Part I to illustrate the deficits of this "best interests" standard when applied to confidentiality and to highlight how the standard fails to follow the conditions discussed in Part II. Finally, Part IV proposes a new standard to ensure that lawyers for diminished capacity children make their disclosure decisions on ethically acceptable grounds and carry forth those disclosures in an ethically responsible manner, pursuant to the conditions arrived at in Part II.

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