If a lawyer is both the child's attorney and guardian ad litem in a termination of parental rights case, can the lawyer argue for termination over the child's objection?

Plain-English summary

The opinion addresses a lawyer appointed to serve, in a termination of parental rights case, as both the child's legal counsel and the child's guardian ad litem, and asks whether that lawyer may advocate for termination over the child's objection. Georgia statute requires appointment of counsel and a guardian ad litem for the child and allows the same lawyer to fill both roles unless a conflict arises between the lawyer's duty as attorney and the lawyer's considered opinion of the child's best interests. The Board limits its opinion to the lawyer's obligations once such a conflict has already arisen, and does not decide whether the dual role is inherently conflicted.

The Board grounds the analysis in Rule 1.14 (clients with diminished capacity), which directs the lawyer to maintain, as far as reasonably possible, a normal client-lawyer relationship with the child, and notes the Comment's recognition that children's opinions are entitled to weight. Rule 1.2 binds the lawyer to defer to the client's wishes about the objectives of the representation. The Board reasons that the rules do not direct the lawyer simply to act in the child's best interests as the lawyer alone determines them.

When the lawyer concludes the child's wishes and best interests are in conflict, the lawyer must petition the court for removal as guardian ad litem, considering Rule 1.6 before disclosing any confidential client information beyond the fact that a conflict requires removal. If the conflict is severe, the lawyer may seek to withdraw entirely under Rule 1.16(b)(3). The lawyer may not withdraw as counsel and then seek appointment as guardian ad litem, because the child would become a former client owed a continuing duty of confidentiality. Rule 3.7 (lawyer as witness) is implicated to the extent the guardian ad litem might need to testify or advise the court of the conflict.

The Board surveys other states. It notes approaches that require withdrawal from the guardian ad litem role on conflict (Ohio, Connecticut, Massachusetts, New Jersey) and a contrasting "hybrid" model that modifies the application of the rules so the lawyer follows the child's best interests while presenting the child's wishes. The Board concludes that strict adherence to the Rules of Professional Conduct is the sounder approach.

In practice

Under the Georgia rules as they stood at the time of this opinion, the opinion holds that a lawyer occupying both roles may not advocate termination over the child's objection once the lawyer's best-interests view and the child's wishes irreconcilably conflict. At that point the opinion directs the lawyer to petition for removal as guardian ad litem and to continue representing the child as counsel, deferring to the child's objectives under Rule 1.2 and the diminished-capacity framework of Rule 1.14.

The opinion holds that, before disclosing anything beyond the existence of a conflict requiring removal, the lawyer must consider Rule 1.6, and that the lawyer may seek complete withdrawal under Rule 1.16(b)(3) if the conflict is severe. It also holds the lawyer may not flip the sequence by withdrawing as counsel to become guardian ad litem, because the child would then be a former client owed continuing confidentiality.

Common questions

Q: Can a lawyer who is both the child's counsel and guardian ad litem argue for termination against the child's wishes?

A: No. The opinion concludes that once the lawyer's view of the child's best interests irreconcilably conflicts with the child's wishes, the lawyer must withdraw from the guardian ad litem role and continue as the child's counsel, deferring to the child's objectives.

Q: Which role does the lawyer give up when the conflict arises?

A: The guardian ad litem role. The opinion directs the lawyer to petition the court for removal as guardian ad litem and remain as counsel, not the reverse.

Q: Can the lawyer instead drop the counsel role and stay on as guardian ad litem?

A: No. The opinion holds the lawyer may not withdraw as counsel and then seek appointment as guardian ad litem, because the child would become a former client to whom the lawyer owes a continuing duty of confidentiality.

Q: What can the lawyer tell the court about the conflict?

A: The opinion holds the lawyer must consider Rule 1.6 before disclosing confidential client information other than that a conflict requires removal; Rule 3.7 is implicated to the extent the guardian ad litem must testify or advise the court of the conflict.

Background and rules framework

The opinion interprets Georgia Rules of Professional Conduct 1.14 (client with diminished capacity), 1.2 (scope of representation), 1.7 (conflicts of interest), 1.6 (confidentiality), 3.7 (lawyer as witness), and 1.16 (declining or terminating representation), corresponding to the same-numbered ABA Model Rules. It reads these against Georgia's termination-of-parental-rights statute, O.C.G.A. § 15-11-262 (formerly § 15-11-98), which provides for appointment of the child's counsel and guardian ad litem and allows the same lawyer to serve both roles absent a conflict.

Citations and references

Rules of Professional Conduct:

• Georgia RPC 1.14 (ABA Model Rule 1.14): client with diminished capacity
• Georgia RPC 1.2 (ABA Model Rule 1.2): scope of representation
• Georgia RPC 1.7 (ABA Model Rule 1.7): conflicts of interest
• Georgia RPC 1.6 (ABA Model Rule 1.6): confidentiality
• Georgia RPC 3.7 (ABA Model Rule 3.7): lawyer as witness
• Georgia RPC 1.16 (ABA Model Rule 1.16): declining or terminating representation

Statutes:

• O.C.G.A. § 15-11-262 (appointment of counsel and guardian ad litem in termination proceedings); former O.C.G.A. § 15-11-98

Cases:

• Scott v. Scott, 276 Ga. 372 (2003), best-interests standard
• In re A.P. (Ga. Ct. App.), dual representation not inherently conflicted
• Kenny A. v. Perdue, 356 F. Supp. 2d 1353 (N.D. Ga. 2005), child's right to counsel

See also

• Alabama Ethics Op. 2000-02: Attorney Appointed Guardian ad Litem
• ABA Formal Op. 96-404: Client Under a Disability
• Alabama Ethics Op. 1995-06: Seeking a Guardian for a Client Under a Disability

Source

• Landing page: https://www.gabar.org/handbook?rule=rule600

Original opinion text

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

FORMAL ADVISORY OPINION 16-2
Approved And Issued On April 16, 2018 Pursuant to Bar Rule 4-403
By Order Of The Supreme Court Of Georgia
Supreme Court Docket No. S17U0553

QUESTION PRESENTED:

May an attorney who has been appointed to serve both as legal counsel and as guardian ad litem for a child in a termination of parental rights case advocate termination over the child's objection?

SUMMARY ANSWER:

When it becomes clear that there is an irreconcilable conflict between the child's wishes and the attorney's considered opinion of the child's best interests, the attorney must withdraw from his or her role as the child's guardian ad litem.

OPINION:

Relevant Rules

This question squarely implicates several of Georgia's Rules of Professional Conduct, particularly, Rule 1.14. Rule 1.14, dealing with an attorney's ethical duties towards a child or other client with diminished capacity, provides that "the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client."Comment 1 to Rule 1.14 goes on to note that "children as young as five or six years of age, and certainly those of ten or twelve, are regarded as having opinions that are entitled to weight in legal proceedings concerning their custody." [1]

This question also involves Rule 1.2, Scope of Representation, and Rule 1.7, governing conflicts of interest. [2]

Comment 2 to Rule 1.7 indicates that "[l]oyalty to a client is also impaired when a lawyer cannot consider, recommend or carry out an appropriate course of action for the client because of the lawyer's other competing responsibilities or interests. The conflict in effect forecloses alternatives that would otherwise be available to the client." [3]

This situation also implicates Rule 3.7, the lawyer as a witness, to the extent that the guardian ad litem must testify and may need to advise the court of the conflict between the child's expressed wishes and what he deems the best interests of the child. Finally, Rule 1.6, Confidentiality of Information, may also be violated if the attorney presents the disagreement to the Court.

Statutory Background

Georgia law requires the appointment of an attorney for a child as the child's counsel in a termination of parental rights proceeding. [4]

The statute also provides that the court shall additionally appoint a guardian ad litem for the child, and that the child's counsel is eligible to serve as the guardian ad litem unless there is a conflict of interest between the lawyer’s duty as an attorney for the child and the lawyer’s “considered opinion” of the child’s best interest as the guardian ad litem. [5]

In addition to the child's statutory right to counsel, a child in a termination of parental rights proceedings also has a federal constitutional right to counsel. [6]

In Georgia, a guardian ad litem's role is "to protect the interests of the child and to investigate and present evidence to the court on the child's behalf." [7]

The best interests of the child standard is paramount in considering changes or termination of parental custody. See, e.g., Scott v. Scott, 276 Ga. 372, 377 (2003) ("[t]he paramount concern in any change of custody must be the best interests and welfare of the minor child "). The Georgia Court of Appeals held in In re A.P. based on the facts of that case that the attorney-guardian ad litem dual representation provided for under O.C.G.A. § 15-11-98(a) (the predecessor to O.C.G.A. § 15-11-262(d)) does not result in an inherent conflict of interest, given that "the fundamental duty of both a guardian ad litem and an attorney is to act in the best interests of the [child]. [8]

This advisory opinion is necessarily limited to the ethical obligations of an attorney once a conflict of interest in the representation has already arisen. Therefore, we need not address whether or not the dual representation provided for under O.C.G.A. § 15-11-262(d) results in an inherent conflict of interest. [9]

Discussion

The child's attorney's first responsibility is to his or her client. [10]

Rule 1.2 makes clear that an attorney in a normal attorney-client relationship is bound to defer to a client's wishes regarding the ultimate objectives of the representation. [11]

Rule 1.14 requires the attorney to maintain, "as far as reasonably possible . . . a normal client-lawyer relationship with the [child]. [12]

An attorney who "reasonably believes that the client cannot adequately act in the client's own interest "may seek the appointment of a guardian or take other protective action. [13]

Importantly, the Rule does not simply direct the attorney to act in the client's best interests, as determined solely by the attorney. At the point that the attorney concludes that the child's wishes and best interests are in conflict, the attorney must petition the court for removal as the child's guardian ad litem. The attorney must consider Rule 1.6 before disclosing any confidential client information other than that there is a conflict which requires such removal. If the conflict between the attorney's view of the child's best interests and the child's view of his or her own interests is severe, the attorney may seek to withdraw entirely under Rule 1.16(b)(3). 14

The attorney may not withdraw as the child's counsel and then seek appointment as the child's guardian ad litem, as the child would then be a former client to whom the former attorney/guardian ad litem would owe a continuing duty of confidentiality. 15

This conclusion is in accord with many other states. 16

For instance, Ohio permits an attorney to be appointed both as a child's counsel and as the child's guardian ad litem. 17

Ohio ethics rules prohibit continued service in the dual roles when there is a conflict between the attorney's determination of best interests and the child's express wishes. 18

Court rules and applicable statutes require the court to appoint another person as guardian ad litem for the child. 19

An attorney who perceives a conflict between his role as counsel and as guardian ad litem is expressly instructed to notify the court of the conflict and seek withdrawal as guardian ad litem. 20

This solution (withdrawal from the guardian ad litem role once it conflicts with the role as counsel) is in accord with an attorney's duty to the client. 21

Connecticut's Bar Association provided similar advice to its attorneys, and Connecticut's legislature subsequently codified that position into law. 22

Similarly, in Massachusetts, an attorney representing a child must represent the child's expressed preferences, assuming that the child is reasonably able to make "an adequately considered decision . . . even if the attorney believes the child's position to be unwise or not in the child's best interest. 23

Even if a child is unable to make an adequately considered decision, the attorney still has the duty to represent the child's expressed preferences unless doing so would "place the child at risk of substantial harm. 24

In New Jersey, a court-appointed attorney needs to be "a zealous advocate for the wishes of the client . . . unless the decisions are patently absurd or pose an undue risk of harm. 25

New Jersey's Supreme Court was skeptical that an attorney's duty of advocacy could be successfully reconciled with concern for the client's best interests. 26

In contrast, other states have developed a "hybrid "model for attorneys in child custody cases serving simultaneously as counsel for the child and as their guardian ad litem. 27

This "hybrid "approach "necessitates a modified application of the Rules of Professional Conduct. 28

That is, the states following the hybrid model, acknowledge the "'hybrid' nature of the role of attorney/guardian ad litem which necessitates a modified application of the Rules of Professional Conduct,"excusing strict adherence to those rules. 29

The attorney under this approach is bound by the client's best interests, not the client's expressed interests. 30

The attorney must present the child's wishes and the reasons the attorney disagrees to the court. 31

Although acknowledging that this approach has practical benefits, we conclude that strict adherence to the Rules of Professional Conduct is the sounder approach.

Conclusion

At the point that the attorney concludes that the child's wishes and best interests are in conflict, the attorney must petition the court for removal as the child's guardian ad litem and must consider Rule 1.6 before disclosing any confidential client information other than that there is a conflict which requires such removal. If the conflict between the attorney's view of the child's best interests and the child's view of his or her own interests is severe, the attorney may seek to withdraw entirely following Rule 1.16(b)(3).