Juveniles are the most vulnerable among clients who are facing criminal liability for their actions. As attorneys, we have an ethical obligation to zealously advocate for all our clients, but can our lack of understanding regarding child development impact our ability to zealously advocate and provide effective assistance of counsel to juveniles? The American Bar Association published an article in October 2021 discussing this issue which can be located at https://www.americanbar.org/groups/crsj/publications/human_rights_magazine_home/empowering-youth-at-risk/to-be-a-competent-childrens-attorney/. The ABA contends that
[w]ithout a foundation in understanding child development, the child’s attorney or advocate . . . is not equipped to [determine a child’s position] in order to provide competent representation. The onus is on the lawyer to acquire the skills necessary to be an effective advocate, which, if you are representing a child, means having a foundation in child development.
Childrens’ prefrontal cortexes are not fully developed until well into their twenties. While in the criminal justice system, juveniles are not as developed physically, cognitively, socially, and emotionally. A background in child development would give lawyers the skills necessary to effectively communicate with children, as well as listen effectively to children. Communication is key when explaining the judicial process, client’s rights, preparation needed for court, and the consequences of certain decisions to any client, but especially to a child who is not fully developed and who may not be able to control their emotions or verbalize what their needs are.
The Texas Disciplinary Rules of Professional Conduct provide that when determining whether a matter is beyond a lawyer’s competence, relevant factors can include the relative complexity and specialized nature of the matter, the study the lawyer will be able to give the matter, and whether it is feasible to refer the matter to a lawyer with established competence in the field in question.1 Following the ABA’s guidance, it can be inferred that juvenile issues are specialized in nature, and those attorneys familiar with the Texas Family Code have seen the complexities of the juvenile system within the State of Texas. A juvenile has a constitutional and statutory right to the effective assistance of counsel in a juvenile proceeding.2 3 The effectiveness of counsel’s representation in a juvenile proceeding is reviewed under Strickland v. Washington, 466 U.S. 668, 687–88, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).4 However, with juvenile lawyers already being scarce throughout the state, how do we ensure that attorneys will complete the necessary study to become competent in child development without dissuading attorneys from practicing juvenile law because of the additional study required?
First, we must hold judicial officials to a higher standard of mitigating incompetence. Juvenile judges witness firsthand an attorney’s competence and preparedness in the courtroom. If a judge suspects that an attorney is ill-prepared, perhaps allowing a continuance long enough for the attorney to become competent in child development should be allowed. This protects the best interest of the child and does not subject the attorney to any discipline, but simply increases the amount of time an attorney has to familiarize themselves with the basics of child development.5
Next, attorneys must hold each other accountable. As advocates, it can be inferred that we all want the best possible outcome for our clients, and the protection of children is something that resonates with most attorneys on a basic human level. Accountability is necessary in ensuring that the best interests of a child are met; we must help each other to help these children. One way to achieve this could be to have local bar associations keep lists of attorneys who have a background in child development, ensuring that others can defer to those attorneys for insight and resources while studying to become more competent in juvenile law themselves.
Lastly, another way to achieve competence and possibly more attorneys willing to take juvenile cases altogether, is to offer more continuing legal education courses regarding child development and its impact on effective assistance of counsel, as well as other juvenile law issues. Juvenile law can be an intimidating field because of what is at stake and more diverse continuing legal education courses could help alleviate any worry an attorney may have regarding juvenile law. The Texas Criminal Defense Lawyers Association has done an excellent job providing juvenile law continuing legal education courses, including partnering with the Texas Indigent Defense Commission and Juvenile Training Immersion Program to host these courses. However, our work to provide the best legal counsel to the most vulnerable can always continue to be improved, made more accessible, and cover more topics within the juvenile justice system.
To conclude, if the State of Texas and TCDLA really want to keep juveniles’ “best interests” at the forefront, more child development, competency, continuing legal education, and accountability are essential to ensuring juveniles have a safe, fair, and equitable juvenile justice system.