In a child custody case, can a lawyer tell the court that the client's interests conflict with the child's when the lawyer learned that from the client's confidences?

Currency note

This opinion was issued in 1976, before the State Bar of California's adoption of the November 1, 2018 revisions to the Rules of Professional Conduct. The opinion interprets the duty of confidentiality under Business and Professions Code section 6068(e) and ABA Code DR 4-101 and Canons 4 and 7, the predecessors to current California Rule 1.6 and Model Rule 1.6 (and the diligence duty now in Rule 1.3). Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule or requirement mentioned here.

Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the State Bar of California's rules of professional conduct and are persuasive authority. This summary is for research purposes only and is not legal advice. Verify current rules before acting on any specific guidance.

About this page: The plain-English summary and Q&A below were written by Ezel based on the official opinion. The opinion text is reproduced at the bottom; the official source (linked) controls.

View original opinion

Plain-English summary

The committee was asked whether a lawyer who, while representing a parent or other contestant in a child custody proceeding, discovers a conflict between the client's interests and the child's interests may notify the court of the conflict and suggest that the court appoint separate counsel for the child. The committee concluded the lawyer may not.

It noted that a child need not be separately represented in custody proceedings and that the lawyer for a parent does not concurrently represent the child; the child's interests are protected by the substantive "best interests of the child" standard (Civil Code section 4600). The committee assumed the conflict arose from confidences or secrets the lawyer gained from the client, which fall within the broad definition in DR 4-101(A). Canon 4 and Business and Professions Code section 6068(e) require those confidences and secrets to be preserved, so the lawyer may not disclose them to the court. The committee cited ABA informal opinion No. 869 (1965), which reached the same result where state law made adultery a basis for denying custody.

The committee added that voluntary disclosure of information detrimental to the client's case, against the client's wishes, would also be inconsistent with zealous representation under Canon 7. It acknowledged the argument that merely suggesting appointment of counsel for the child is not itself a disclosure, but concluded that where such an appointment is highly unusual and the only reason for it is to protect the child against the client's conflicting interests, the suggestion is tantamount to disclosure and is prohibited. The committee stated the lawyer should do everything in his power to persuade the client to arrange separate representation for the child, but if the client is not persuaded, the lawyer cannot ethically suggest it to the court.

Common questions

Q: Can a custody lawyer alert the court that the client may not be the better custodian for the child?

A: Not when that information came from the client's confidences or secrets. The committee concluded the duty of confidentiality (DR 4-101, Business and Professions Code section 6068(e)) bars the lawyer from disclosing it to the court.

Q: Is it different to just ask the court to appoint a lawyer for the child?

A: The committee said that in most such situations the suggestion is tantamount to disclosure, because the appointment would be highly unusual and the only apparent reason for it would be to protect the child against the client's conflicting interests. So it is likewise prohibited.

Q: What can the lawyer do about the child's interests?

A: The committee said the lawyer should do everything in his power to persuade the client to arrange separate representation for the child, but cannot make the suggestion to the court if the client will not agree.

Background and rules framework

The opinion interprets the duty to preserve client confidences and secrets, drawn from ABA Code Canon 4 and DR 4-101(A), and from California Business and Professions Code section 6068(e), against the custody framework of Civil Code section 4600 (custody decided by the best interests of the child). These confidentiality duties are now reflected in California Rule 1.6 and Model Rule 1.6, and the zealous-representation concern in Canon 7 is reflected in Model Rule 1.3.

Citations and references

Rules of Professional Conduct:

• ABA Code of Professional Responsibility, Canon 4, DR 4-101(A), and Canon 7
• Current analogs: Model Rule 1.6 / California Rule 1.6

Statutes:

• California Business and Professions Code section 6068(e) (duty to preserve client confidences and secrets)
• California Civil Code section 4600 (custody according to the best interests of the child)

Other opinions cited:

• ABA Committee on Professional Ethics informal opinion No. 869 (1965)
• ABA Committee on Professional Ethics opinion No. 90 (1932)

See also

• CA Ethics Op. 1975-33: Defense Contact With Plaintiff's Treating Physician

Source

• Landing page: https://www.calbar.ca.gov/legal-professionals/ethics-compliance-practice-resources/ethics/ethics-opinions
• Original opinion: https://www.calbar.org/ethics/Opinions/1976-37.htm

Original opinion text

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

THE STATE BAR OF CALIFORNIA
STANDING COMMITTEE ON PROFESSIONAL RESPONSIBILITY AND CONDUCT
FORMAL OPINION NO. 1976-37

ISSUE:

May a lawyer representing a client in a child custody proceeding properly notify the court of conflicting interests disclosed by the confidences or secrets of his client?

DIGEST:

A lawyer representing a client in a child custody proceeding may not properly notify the court of conflicting interests disclosed by the confidences or secrets of his client.

AUTHORITIES INTERPRETED:

American Bar Association Code of Professional Responsibility, Disciplinary Rule 4-101(A).

Business and Professions Code section 6068, subdivision (e), and Civil Code section 4600.

DISCUSSION

The inquirer asks:

When a lawyer representing a client in child custody proceedings discovers conflicting interests of his client and the child, may he ethically notify the court of the conflict and suggest court appointment of a separate lawyer for the child?

The Committee is of the opinion the attorney may not.

A child need not be represented in adversary proceedings involving his custody, despite the fact he is vitally interested in the outcome of the proceedings. Nor is there any implication that a lawyer representing a parent or other contestant in child custody proceedings concurrently represents the child and must protect the child's interests. Presumably, the child is protected by the requirements of the substantive law providing custody is to be awarded "according to the best interests of the child." (Civ. Code, 4600.)

Unquestionably, the interests of the child and of the parent or other party seeking custody can be in conflict. For instance, in custody proceedings arising out of dissolution of marriage, the child's interests could conflict with the interests of one or another of his parents in that it might be in the child's best interests that custody be awarded to one parent rather than to the other or that the child support payments be high. (A Divorce Reform Act, 5 Harvard J. Legis. 563 (1968); see also Kleinfeld, The Balance of Power Among Infants, Their Parents and The State (1976) 4 Family L.Q. 319 and Hatherly, The Role of the Child's Wishes in California Custody Proceedings (1973) 6 U.S. Davis L. Rev. 332.)

Accordingly, it is assumed by the Committee that the conflicting interests suggested by the inquirer arise from information received by the lawyer suggesting that it would not be in the best interests of the child that his client have custody of the child, or that other interests of the child, in good conscience, require independent representation.

For purposes of this opinion, it is further assumed that the lawyer discovered the conflicting interests of his client and the child from confidences or secrets gained from the client. Such confidences and secrets are broadly defined in American Bar Association Code of Professional Responsibility, Disciplinary Rule 4-101(A), as follows:

"'Confidence' refers to information protected by the attorney-client privilege under applicable law, and 'secret' refers to other information gained in the professional relationship that the client has requested be held inviolate or the disclosure of which would be embarrassing or would be likely to be detrimental to the client."

It is likely that the information indicating conflicting interests gained by the lawyer would come within this broad definition of confidences and secrets.

Canon 4 of the American Bar Association Code of Professional Responsibility, and its associated ethical considerations and disciplinary rules, makes it clear that such confidences and secrets may not be disclosed. Canon 4 provides:

"A lawyer should preserve the confidences and secrets of a client."

Moreover, section 6068, subdivision (e), of the California Business and Professions Code provides that it is the duty of a lawyer:

"To maintain inviolate the confidence, and at every peril to himself to preserve the secrets, of his client."

Accordingly, the lawyer may not notify the court of the conflicting interests. Thus, in American Bar Association informal opinion No. 869 (1965), the Standing Committee on Professional Ethics concluded that the rule against disclosure of confidential communications precluded a lawyer in custody proceedings from disclosing to the court the admitted adultery of his client, even under circumstances where the applicable state law held that adultery renders a person unfit to be awarded custody of children.

Further, any disclosures of confidential or secret information could be contrary to American Bar Association Code of Professional Responsibility, canon 7, which provides:

"A lawyer should represent a client zealously within the bounds of the law."

The voluntary disclosure by the lawyer of information detrimental to the client's case, against the wishes of the client, would be inconsistent with such zealous representation.

Arguably, the simple suggestion to the court that counsel be appointed for the child is not disclosure of confidences or secrets. However, under circumstances where appointment of separate counsel for the child is highly unusual and the only reason for such appointment is to protect the interests of the child against possible conflicting interests of the lawyer's client, it is the opinion of the Committee that, in most situations, the suggestion is tantamount to disclosure and is prohibited. (Cf. ABA Committee on Prof. Ethics, opn. No. 90 (1932).)

The lawyer should do everything in his power to persuade his client that arrangements should be made for the child to be separately represented. However, if the client is not persuaded to make such arrangements, the lawyer cannot ethically suggest representation of the child to the court.

This opinion is issued by the Standing Committee on Professional Responsibility and Conduct of The State Bar of California. It is advisory only. It is not binding upon the courts, The State Bar of California, its Board of Governors, any persons or tribunals charged with regulatory responsibilities, or any member of the State Bar.