Texas Bar Journal • June 2026

Ethics of the Child’s Attorney

Navigating the complex role of a court-appointed legal representative.

Written by Dylan Moench

For almost four decades, the U.S. Supreme Court and the Supreme Court of Texas have recognized the constitutional implications in cases of involuntary termination of the parent-child relationship by governmental entities. Court-appointed legal representation is mandated by law in Texas for all children subject of suits filed by the Texas Department of Family and Protective Services (DFPS) and for their parents, if indigent. However, many attorneys do not understand the role of the child’s attorney in petitions filed by DFPS or the unique ethical dilemmas of the child’s attorney.

ACCEPTING THE APPOINTMENT
The ethical dilemmas of the child’s attorney often begin with the court order appointing the attorney. Many families investigated by DFPS have more than one child, and if those children are removed, the court may order one attorney be appointed to represent all of the subject children. Even though the children are of the same family, their separate and individual interests may prevent a lawyer from ethically representing all the children.

The Texas Disciplinary Rules of Professional Conduct (TDRPC) prevent attorneys from representing parties in the same suit who have interests that are materially adverse.¹ Children of the same family suffering from the dynamics of abuse and neglect may well have very different and adverse interests, particularly if only one child was the target of the abuse or neglect. One child client may want to return to a parent, while a sibling doesn’t want to return because they remain afraid of the parent.

Attorneys for children must also scrutinize their appointment for potential conflicts of interest. The TDRPC states that a lawyer shall not represent a client if the lawyer’s responsibilities to the client “reasonably appears to be” adversely limited by their responsibilities to another client, or reasonably appears to become adversely limited by their responsibilities to another client.²

Appointments of a single attorney to represent groups of children are often rife with potential conflicts. The most frequent potential conflict occurs in cases where there are large age gaps between clients, or where one client has the capacity to direct representation and the other client does not. Child clients that are part of the same case may have vastly different circumstances, such as different placements in different parts of the state, different fathers, different legal statuses, different medical needs, or different educational needs, all of which can create potential conflicts. While the TDRPC allows continued representation of such clients as long as the attorney believes the representation of each client won’t be affected, that option is often not available to children’s attorneys as many conflicts will involve clients too young to give consent.³

MEETING WITH SIBLINGS
When children’s attorneys are appointed to represent multiple children in the same suit, this creates an ethical dilemma for the attorney right from the very first meeting with the clients. Efficiency may tempt an attorney to meet with all the children together. If an attorney met with several adult clients simultaneously, the lack of confidentiality for each client would be glaring. The same is true of child clients. Every sibling relationship is different, and a child may not be able to speak freely if their siblings can hear what they say. In a family with unhealthy dynamics, a sibling may even be the perpetrator of physical or sexual abuse against another sibling. A group discussion may serve the attorney’s schedule, but meeting with clients in a confidential setting is required by the Texas Family Code and that appears incompatible with group interviews.⁴

MEETING A CLIENT AT THE HOME OF A PARENT
Some circumstances such as court ordered services cases under Texas Family Code Chapter 264 or monitored returns under Texas Family Code Chapter 263 may require a child’s attorney to meet with a client in a parent’s home. Parents in cases filed by DFPS also have a statutory right to counsel, and therefore the child’s attorney is faced with the prospect of needing to communicate directly with a represented party. Child’s attorneys must proactively communicate with parents’ attorneys about communication with a represented party and set clear boundaries if the parent’s attorney is unable to attend the meeting. Even if an attorney for a child does everything proper to prepare for such a visit, a parent may still push the attorney’s ethical boundaries in requesting communication or information. A child’s attorney must balance being firm, polite, and proactive in terminating a conversation with a parent when ethics are on the line.

SUBSTITUTING JUDGMENT
Attorneys for children are supposed to follow their client’s direction. However, the Texas Family Code does outline some specific circumstances when an attorney may substitute their own judgment for that of their client’s. The Texas Family Code provides specific requirements that must be met before a child’s attorney may substitute their judgment for that of the child client. It is only permissible when the child client cannot meaningfully formulate objectives of representation because the child client lacks sufficient maturity to understand and form an attorney-client relationship with the attorney, the child client’s objectives of representation would be seriously injurious to the child, or the child client is incapable of making reasonable judgments and engaging in meaningful communication.⁵

There are several important ethical implications of this section where neither the Family Code nor the TDRPC provide guidance. Must the child’s attorney inform their client that they are substituting judgment? Is the child client entitled to know that their attorney is advocating against their wishes? Must the child’s attorney inform the court or the jury they are substituting judgment? Is it relevant to the trier of fact to be aware of the nature of the advocacy being presented? Children’s attorneys are left to make their own determinations.

Children’s attorneys should approach substituted judgment with caution and care. Given the critical importance of a client’s voice being heard by the court, substituting judgment should be reserved for cases where a client unambiguously lacks the capacity to direct representation or the client’s direction would put the client in real, serious, and impending danger.

MANDATORY REPORTING
Attorneys for children have a mandatory duty to report suspected abuse or neglect.⁶ But neither the Texas Family Code nor the TDRPC shed light on what duties an attorney owes their client after making a mandatory report. Does the child’s attorney have a duty to inform their client they have made a mandatory report to DFPS? If the report is disclosed to the client, the attorney must determine whether the attorney-client relationship has been damaged enough that withdrawal is necessary.

If the client expresses fear or anxiety about their circumstances that do not require a mandatory report, there are other protective actions an attorney can take such as contacting the DFPS caseworker, having a conversation with the caregiver, or filing a motion with the court for further orders such as restricting certain people from being in the home or asking for a change of placement.

CHILDREN ARE VULNERABLE TO POOR REPRESENTATION
The final ethical dilemma of a child’s attorney is to continue to act in an ethical manner, despite few protections for a child client to ensure an attorney’s ethical behavior. Just as children depend on their parents to provide food, clothing, shelter, love, and attention, a child client depends on their attorney to give them candid advice and zealous advocacy. If a parent fails in their duties to the child, a teacher, doctor, neighbor, or other observer may notice and alert DFPS. If an attorney for a child fails in their duties, the only direct observers are the attorney and the child.

Unless the attorney self-reports their dereliction, the responsibility of alerting authorities falls on the child. A child who is the victim of abuse and neglect has likely just moved to a new home and may not even know they have an attorney or what the attorney should be doing for them. A foster parent or a DFPS caseworker may suspect an attorney for a child is not fulfilling their responsibilities and may even have relevant evidence. They could file a complaint with the State Bar of Texas, but that will not remove the attorney from the child’s case, or remove the attorney from the list of court-appointed attorneys who represent children.

The work of children’s attorneys is as complex, difficult, and vexing as it is important, rewarding, and transforming. Texas is increasingly acknowledging the importance of child welfare attorneys, and improving the ethical guidance provided to children’s attorneys is a key step in fully recognizing the value of this field.

DYLAN MOENCH rejoined Travis County Child Representation in 2024 as chief counsel. He had previously served as a staff attorney with the office from its founding in 2009 until 2015. Prior to joining as chief counsel, Moench served as the legal representation director for the Texas Children’s Commission, where he focused on improving outcomes for Texas children through statewide projects enhancing the quality of legal representation for parents and children. He earned a Juris Doctor from the University of Texas School of Law in 2003 and a Bachelor of Science in philosophy from the University of Utah in 1999. He is a National Association of Counsel for Children child welfare law specialist and certified in child welfare law by the Texas Board of Legal Specialization.