Does a child's court-appointed guardian ad litem have to pursue, or at least flag, the child's tort claims against third parties?

Plain-English summary

Opinion 252 (adopted November 15, 1994) addressed the obligations of a lawyer appointed as guardian ad litem for a child in abuse and neglect proceedings, with respect to potential tort claims arising from the child's placement (for example, a negligence claim for scalding injuries in a foster home). The committee described the broad and open-ended role of the District of Columbia guardian ad litem, who acts as the child's lawyer, monitors the child's well-being, reports to the court, and may serve for many years (D.C. Code § 16-2304(b)).

On whether the guardian ad litem must initiate tort claims, the committee concluded the answer is no. Scope of representation can be set by the terms under which the lawyer's services are made available (Comment [4] to Rule 1.2(a)), and the appointment here is limited to matters of custody and placement, so absent a statutory obligation the lawyer has no ethical duty to bring independent tort actions, even for injuries during a placement.

On whether the lawyer must advise of potential claims, the committee concluded that, although a lawyer ordinarily has no duty to initiate advice outside the scope of the engagement, the unique role of a guardian ad litem makes this an exception. If the lawyer identifies significant potential claims against third parties, the lawyer must notify the child or those responsible for the child's care (and in appropriate cases the court) and, when necessary, take reasonable steps to file statutory notices to preserve them. The committee grounded this narrow duty in Rule 2.1 (the adviser role), Rule 1.3 (diligence), and Rule 1.4 (communication), stressing that it is not a duty to investigate, not a duty to preserve every claim, and not a duty to provide representation, because the child is unlikely to turn elsewhere and colorable claims should not simply drift away.

On whether the guardian ad litem may initiate a tort claim, the committee concluded that doing so requires applying the general rules for representing children: Rule 1.2 (the client and lawyer set the objectives), Rule 1.14 (maintaining as normal a lawyer-client relationship as possible with a client whose capacity is impaired by minority), and Rule 1.7 (conflicts). The committee concluded that the guardian ad litem cannot enter a retainer agreement in a tort action on the child's behalf, or continue representing the child after the retainer is signed, unless a proper third party represents the child's interests in that decision.

Currency note

This opinion was issued in 1994, before the District of Columbia's adoption of the 2007 revisions to the Rules of Professional Conduct. 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, deadline, or requirement mentioned here.

Common questions

Q: Must a child's guardian ad litem bring tort claims for the child?

A: No. The committee concluded the appointment's scope is limited to custody and placement, so the lawyer has no ethical duty to initiate independent tort actions for the child.

Q: Does the lawyer have to flag potential claims it notices?

A: Yes, within limits. The committee concluded that if the lawyer identifies significant potential claims against third parties, it must notify the child or responsible adults and take reasonable steps to file any statutory notices needed to preserve them.

Q: How far does that duty go?

A: It is narrow. The committee said it is not a duty to investigate, not a duty to preserve every potential claim, and not a duty to provide representation, but to flag and preserve significant claims that come to the lawyer's attention.

Q: Can the guardian ad litem take the tort case itself?

A: Only with a proper third party. The committee concluded the lawyer cannot sign a retainer in a tort action for the child, or continue after it is signed, unless a proper third party represents the child's interests in that decision.

Background and rules framework

The opinion interpreted D.C. Rule 1.2 (scope of representation, including Comment [4] on services limited by the terms of appointment), Rule 1.3 (diligence), Rule 1.4 (communication), Rule 1.7 (conflicts), and Rule 1.14 (clients with impaired capacity, including minors), with reference to Rule 2.1 (the lawyer as adviser). It set the analysis against the statutory role of the guardian ad litem under D.C. Code § 16-2304(b).

Citations and references

Rules of Professional Conduct:

• D.C. RPC 1.2 / Model Rule 1.2 (scope of representation)
• D.C. RPC 1.3 / Model Rule 1.3 (diligence)
• D.C. RPC 1.4 / Model Rule 1.4 (communication with the client)
• D.C. RPC 1.7 / Model Rule 1.7 (conflicts of interest)
• D.C. RPC 1.14 / Model Rule 1.14 (client with impaired capacity)

Statutes:

• D.C. Code § 16-2304(b) (appointment of a guardian ad litem in neglect proceedings)

Cases:

• S.S. v. D.M., 597 A.2d 870 (D.C. 1991), the evolving role of the attorney and guardian ad litem

Other opinions cited:

• ABA Informal Op. 1465 (1981): no duty, but permission, to advise of a potential claim outside the scope of the engagement

See also

• DC Ethics Op. 295: Guardian ad Litem Communication With a Represented Parent
• DC Ethics Op. 330: Unbundling Legal Services
• DC Ethics Op. 373: Court-Ordered Counsel in Criminal DV and Parallel CPO Cases

Source

• Landing page: https://www.dcbar.org/for-lawyers/legal-ethics/ethics-opinions-210-present/ethics-opinion-252