Discussion of NYS Rule of the Chief Judge § 7.2: Protecting Due Process & Ensuring the Right to Effective Assistance of Counsel

By Glenn Metsch-Ampel, Executive Director, Lawyers For Children

In New York State, § 7.2 of the Rules of the Chief Judge (22 NYCRR 7.2, hereafter “Rule 7.2”) contains several deceptively succinct provisions. Taken together, they provide clear guidance for implementing the Attorney for the Child’s professional and ethical obligations in jurisdictions that require—or seek to establish—a directed advocacy model.

Rule 7.2 strikes a clear, common-sense balance between honoring a young person’s agency and protecting children who may lack the capacity or judgment to direct their representation. It does so by requiring that the Attorney for the Child (“AFC”) be guided by the wishes of their client unless one of two narrow exceptions applies. Even when the attorney is “convinced” that an exception applies, they have the discretion—but are not required to—substitute their judgment for that of the client. (These exceptions do not apply in youth justice/delinquency cases, where directed advocacy is required without exception.)

At the outset, Rule 7.2 makes unequivocally clear that “the attorney for the child is subject to the ethical requirements applicable to all lawyers, including … constraints on: ex parte communication; disclosure of client confidences and attorney work product; conflicts of interest; and becoming a witness in the litigation.” [22 NYCRR 7.2(b)]. This distinguishes the AFC from a guardian ad litem or CASA volunteer. In fulfilling that role, the AFC “must consult with and advise the child to the extent of and in a manner consistent with the child's capacities, and have a thorough knowledge of the child's circumstances.” [22 NYCRR 7.2(d)(1)].

The rule then squarely addresses the directed advocacy obligation—even when the child’s position conflicts with the attorney’s own view:

If the child is capable of knowing, voluntary and considered judgment, the attorney for the child should be directed by the wishes of the child, even if the attorney for the child believes that what the child wants is not in the child's best interests.
[22 NYCRR 7.2(d)(2)]

These obligations are consistent with the New York Rules of Professional Conduct, which require attorneys to “abide by a client’s decisions concerning the objectives of representation and . . . consult with the client as to the means by which they are to be pursued.” [Rules 1.2(a) & 1.4(a)(2), 22 NYCRR 1200.0].

Where things get more interesting is in the rule’s two exceptions.  The first applies “[w]hen the attorney is convinced that the child lacks the capacity to make a knowing, voluntary and considered judgment….” [22 NYCRR 7.2(d)(3); emphasis added].  While this may sometimes be straightforward, it is often complex, given the wide variation in children’s development. More importantly, this standard is frequently confused when the AFC feels the child is not exercising good judgment by taking a position that is not in their best interest.  But § 7.2(d)(2) is explicit: the AFC must follow the child’s wishes even when the attorney believes the choice is unwise. The question is not whether the child is exercising good judgment, but whether the child has the capacity to take a knowing, voluntary, and considered position.

The second exception applies when the child’s position would place them at “substantial risk of imminent, serious harm.” [22 NYCRR 7.2(d)(3)]. Each element of this standard is significant:

there must be risk of harm;

the risk must be substantial; and

the harm must be both imminent and serious.

This is a high bar. It is not enough that there be some risk, or even a clear risk of harm. The risk must be substantial, and the harm both imminent and serious.

The rule further requires that, before substituting judgment, the AFC must be “convinced” that one or both exceptions apply and, even then, is merely “justified”—not required—to advocate a position contrary to the child’s wishes. [22 NYCRR 7.2(d)(3)]. Accordingly, an AFC does not violate Rule 7.2 by declining to substitute judgment, even when they could have done so. The violation occurs only when judgment is substituted without a proper basis.

Finally, when the AFC does substitute judgment, they must inform the court of the child’s position if the child wishes them to do so. [22 NYCRR 7.2(d)(3)].  This implicates the § 7.2(d)(1) duty to consult with the client—here, to discuss the decision to substitute judgment and determine whether the child wants their wishes disclosed.

Of course, the greatest challenge lies in applying the rule in practice. Future discussion could explore its operation in sibling cases with conflicting positions, in matters involving allegations of undue influence, and in the AFC’s duty to advocate for meaningful client participation in their court proceedings. At its core, however, Rule 7.2 safeguards the right of children, adolescents, and young adults to effective assistance of counsel and protects their due process rights—even when they may be least able to recognize or assert those rights themselves.