Does a lawyer who serves as a child's guardian ad litem owe the normal duty of confidentiality, or may the lawyer disclose what the child says in confidence to the court?

Plain-English summary

The Committee was asked whether an attorney's duty to preserve a client's confidences and secrets extends to an attorney acting as a guardian ad litem who is told something in confidence by the child, or whether the attorney may reveal that information to the court, and whether the same standard governs a non-attorney guardian ad litem supervised by an attorney. The opinion concluded that the attorney is not bound by the normal duty of confidentiality but should act within the context of the proceeding and the reason for the appointment, namely the best interest of the child, exercising the duty in accordance with the child's intelligence, experience, awareness, or age.

Working through the analysis, the opinion observed that the standard attorney-client scope of representation is limited: a lawyer is not required to pursue every objective a client wishes (Model Rule 1.2; Model Code EC 5-1), and the duty of confidence under Model Rule 1.6 and Model Code DR 4-101 is itself subject to limited exceptions, with the lawyer's discretion turning on the nature of the relationship to the child and the interests of the child that might be adversely affected. A court-appointed guardian ad litem is in every sense the child's attorney, charged with representing the child's best interest in the proceeding, even when that handling is not consistent with the child's expressed wishes. Because a minor may not be capable of important decisions, the lawyer's duty may vary with the child's capacity (Model Rule 1.14; Model Code EC 7-11, EC 7-12).

The opinion concluded the guardian should explain the role to the child in a manner suited to the child's age and understanding, including that the guardian's role is to determine the child's best interest, that the guardian may take a position contrary to the child's wishes, and that anything the child says may be disclosed to the court if the guardian deems disclosure in the child's best interest. If the guardian takes a position adverse to the child's, the guardian must disclose the child's position to the court so the court is fully advised and can take appropriate action, such as appointing separate counsel to assert the child's expressed position. The same standards apply to a non-attorney serving as guardian ad litem when supervised by a member of the bar.

Currency note

This opinion was issued in 1985, before the Alaska Bar Association's adoption of the Alaska Rules of Professional Conduct (the opinion applies both the former Code of Professional Responsibility and the then-new ABA Model Rules) and before the 2009 revisions to those rules. Subsequent rule amendments or later opinions may have changed the analysis, and the cited statutes may have been amended. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule or requirement mentioned here.

Common questions

Q: Does a lawyer acting as a child's guardian ad litem owe the usual duty of confidentiality?

A: The opinion concluded the guardian is not bound by the normal duty of confidentiality, and may reveal information gained from the child to the court when the guardian believes doing so serves the child's best interest.

Q: What must a guardian ad litem tell the child at the outset?

A: The opinion concluded the guardian should explain, in terms suited to the child's age, that the guardian's role is to determine the child's best interest, that the guardian may take a position contrary to the child's wishes, and that what the child says may be disclosed to the court.

Q: What happens if the guardian disagrees with the child's stated position?

A: The opinion concluded that if the guardian takes a position adverse to the child's, the guardian must disclose the child's position to the court so the court is fully advised and can, for example, appoint separate counsel to assert the child's view.

Q: Does the same standard apply to a non-lawyer guardian ad litem?

A: The opinion concluded the same standards apply to a non-attorney serving as guardian ad litem when supervised by a member of the bar.

Background and rules framework

The opinion drew on both the former Code of Professional Responsibility and the then-new ABA Model Rules during Alaska's transition between the two. It read the confidentiality duty (Model Rule 1.6; Model Code DR 4-101) and the scope-of-representation principles (Model Rule 1.2; Model Code EC 5-1) against the rules for clients with diminished capacity (Model Rule 1.14; Model Code EC 7-11, EC 7-12) and the guardian ad litem's statutory charge to represent the child's best interest (AS 25.24.310(c)).

Citations and references

Rules of Professional Conduct (Model Rules and former Code; the opinion cites both):

• Model Rule 1.6 / Model Code DR 4-101 (confidences and secrets)
• Model Rule 1.2 / Model Code EC 5-1 (scope of representation)
• Model Rule 1.14 / Model Code EC 7-11, EC 7-12 (client with diminished capacity)

Statutes:

• AS 25.24.310(c) (authority of guardian ad litem to represent the child's best interest)

Cases:

• Smoot v. Lund, 369 P.2d 933 (Utah 1962), lawyer's fiduciary duty to client
• Grievance Committee v. Natter, 203 A.2d 82 (Conn. 1962), undivided loyalty
• Veazey v. Veazey, 560 P.2d 382 (Alaska 1977), guardian ad litem as the child's attorney

Other opinions cited:

• Massachusetts Bar Association Ethical Opinion 76-1: best interest of the child controls a guardian ad litem's handling of the case

See also

• Alaska Ethics Op. 85-6: Disclosing Client Names Under Disclosure Laws
• Alaska Ethics Op. 94-3: Representation of a Client Under Disability
• Alaska Ethics Op. 91-3: Representing Parents and Child
• Alaska Ethics Op. 2005-1: Client Suicide Threat Disclosure

Source

• Landing page: https://alaskabar.org/ethics-discipline/ethics-opinions/adopted-ethics-opinions-chronological/
• Original PDF: https://alaskabar.org/wp-content/uploads/85-4.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Ethics Opinion No. 85-4
Guardian Ad Litem Confidentiality.
This Committee has been asked whether the legal or ethical duties of an
attorney to preserve the confidences or secrets of his client extend to an
attorney acting as a guardian ad litem who is told something by the child in
confidence, or whether the attorney may reveal this information to the court.
Further, the question has been presented whether the same standard applies
to a non-attorney performing as a guardian ad litem supervised by an attorney.
It is the opinion of this Committee that the attorney is not bound by the
normal duty of confidentiality, but rather should act within the context of the
proceeding and be responsive to the reason for his appointment, namely the
best interest of the child. The attorney's duty of confidentiality to a minor childclient must be exercised in accordance with the intelligence, experience,
awareness or age of the child and in view of the purpose of his appointment.
The scope of representation and the duty of confidentiality are important,
however, they do not stand without limitation or common sense restraint.
Additionally, because of the nature of the relationship and how it is perceived
by the child, the attorney must warn the child that any statements made or
positions taken by the child may be disclosed to the Court if the attorney
deems such disclosure to be in the child's best interest.
First, the standard attorney-client scope of representation is limited. On
one hand, a lawyer's fiduciary duty to his client is of the highest order. Smoot v.
Lund, 369 P.2d 933, 936 (Utah 1962). The lawyer shall act with undivided
loyalty and as the legal champion for his client. Grievance Committee v. Natter,
203 A.2d 82, 84 (Conn. 1962). On the other hand, a lawyer is not required to
pursue objectives or employ means simply because a client may wish that a
lawyer do so. ABA Model Rules 1.2. The professional judgment of a lawyer
should be exercised within the bounds of the law, solely for the benefit of his
client and free of compromising influences or loyalties. ABA Model Code EC 51.
Second, the duty of confidence is not without reason able limitation. The
obligation of a lawyer to safeguard client's confidences is based on the fiduciary
relationship, and is essential to promote full disclosure of facts to the attorney.
ABA Model Rules 1.6. The Model Rules concerning the principle of
confidentiality differ from the corresponding provisions in the ABA Model Code.
Compare Model Code DR 4-101. However, both the Model Rules and Model
Code provide that the confidentiality rule is subject to limited exceptions. The
lawyer's exercise of discretion requires consideration of such factors as (1) the
nature of the lawyer's relationship to the client-child and (2) the interests of the
child which might be adversely affected.
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Third, the nature of the attorney-child relationship is similar to the
general attorney-client association, and therefore analogous restrictions also
apply. A guardian ad litem appointed by the court is in every sense the child's
attorney, with not only the power but the responsibility to represent his client
zealously and to the best of his ability. Veazey v. Veazey, 560 P.2d 382 (Alaska
1977). The guardian is appointed with the authority to represent the child's
"best interest in the legal proceeding." AS 25.24.310(c). The best interests of
the child are paramount. Lawyers thus appointed should consider the child as
their "client" but should handle the proceeding in the best interests of the
child, even when their handling of the case is not consistent with the expressed
wishes of the child. See Mass. Bar Assn. Ethical Opn. 76-1, 61 Mass. L.Q. 54
(1976).
Fourth, the nature of the lawyer's responsibilities must be exercised
within the peculiar relationship between the lawyer-guardian and client-child.
The normal attorney-client relationship does not directly apply when the minor
child may not be capable of making important decisions. Indeed, the court may
appoint the lawyer as guardian ad litem when it feels the child cannot
adequately act in his or her best interest. Model Rules 1.14. The law recognizes
intermediate degrees of competency. The duty of the lawyer may vary in
accordance with the intelligence, experience, awareness or age of the child.
Model Code EC 7-11. The lawyer shall consider all circumstances then
prevailing and act with care to safeguard and advance the best interests of the
client-minor child. See Model Code EC 7-12.
Fifth, the child often perceives the guardian to be the child's attorney, to
represent the child's interest as the child perceives that interest to be. The
guardian sometimes will take a position adverse to the position stated by the
child. The guardian should explain his/her role to the child, in a manner
consistent with the child's age and understanding. The child's natural trust
and perception must not be abused. In that regard, a guardian should
immediately explain his/her role to the child, including (1) the fact that the
guardian's role is to determine what is in the child's best interest, (2) the fact
that the guardian may take a position contrary to the child's wishes, and (3)
the fact that anything the child tells the guardian may be disclosed to the court
if the guardian deems such disclosure to be in the child's best interests. If the
guardian does take a position adverse to the position of the child, the guardian
must disclose the child's position to the court. That is so that the court is fully
advised in the matter before it and also so that the court may take any other
action appropriate under the circumstances, such as appointing an attorney to
represent the child to assert the child's expressed position.
Lastly, the Committee believes these same standards apply to a nonattorney serving as guardian ad litem when supervised by a member of the bar.
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A lawyer is a representative of clients, an officer of the legal system and a
public citizen having a special responsibility for the quality of justice. The
lawyer shall seek the administration of justice and preserve the excellence of
services rendered whether directly as guardian or only indirectly as supervisor
for such a guardian. See Model Rules, Preamble.
In conclusion, the same reasons for the appointment of a guardian ad
litem, namely the best interests of the child, also form the basis for the
restraint placed on the duty of confidentiality. The lawyer appointed by the
court to effect justice is not bound by the normal duty of confidence if he
believes information gained from the child should be revealed to assist the
court in achieving the best interests of that child.
Adopted by the Alaska Bar Association Ethics Committee on September 12,
1985.
Approved by the Board of Governors on November 8, 1985.

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