In an Illinois adoption case, must a lawyer serving as guardian ad litem get the petitioners' lawyer's consent before contacting the petitioners or the children?

Plain-English summary

In an adoption proceeding, the court appoints an attorney as guardian ad litem (GAL) for the minors. The petitioners are represented by counsel. After being appointed, the GAL sends a letter directly to the petitioners, rather than their attorney, requesting an interview; the petitioners then contact the GAL, who interviews them and asks to interview the children. The lawyer asks whether the GAL must obtain the petitioners' attorney's consent before contacting the petitioners.

The opinion analyzes Rule 4.2, which bars a lawyer "representing a client" from communicating about the subject of the representation with a person the lawyer knows is represented by counsel, absent that lawyer's consent or legal or court authorization. The rule protects represented persons against overreaching, interference with the client-lawyer relationship, and uncounseled disclosure. The threshold question is whether a GAL is "representing a client." The opinion holds that although the GAL-ward relationship lacks all the attributes of a traditional attorney-client relationship, the GAL's function in an adoption case (an independent advocate for the child's best interests, also serving as fact-finder) is sufficiently akin to representing a client that Rule 4.2 applies; even a GAL appointed only to investigate is a form of representation, and the Illinois Adoption Act requires a licensed attorney to serve as GAL (750 ILCS 50/13(B)(a)).

The opinion concludes the GAL's letter and interview of the petitioners without their attorney's knowledge and consent violated Rule 4.2 (citing Wisconsin and other authority), because the interview plainly concerns the subject of the representation and the petitioners' counsel may need to advise them before an interview where parental rights are at stake. On the request to interview the children, the opinion holds the petitioners' lawyer must still be notified and consent obtained, even if arranging the interview were the sole purpose, because Rule 4.2 does not require that the communication be substantive, only that it be on the subject of the representation (citing In re Galic). The opinion limits its holding to GALs in adoption proceedings and notes it may not apply to child-custody proceedings governed by Supreme Court Rules 900-908, which give child representatives an unimpeded right to interview their clients.

In practice

The opinion holds that a guardian ad litem in an Illinois adoption proceeding is treated as representing a client for purposes of Rule 4.2 and so must obtain the petitioners' attorney's consent before interviewing the represented petitioners. It holds the GAL must also get that consent before contacting the petitioners to arrange an interview with the children, because the request is itself a communication about the subject of the representation even if not substantive. The opinion limits its conclusion to adoption proceedings and notes it may not extend to child-custody matters under Supreme Court Rules 900-908.

Common questions

Q: Does the no-contact rule apply to a guardian ad litem?

A: Yes, in this setting. The opinion holds a GAL in an adoption case is sufficiently akin to representing a client that Rule 4.2 applies to the GAL's communications with represented petitioners.

Q: Can the GAL contact the petitioners directly to set up an interview?

A: No. The opinion concludes the GAL must obtain the petitioners' attorney's consent first, because the interview concerns the subject of the representation and counsel may need to advise the petitioners beforehand.

Q: Does the GAL need consent just to arrange an interview with the children?

A: Yes. The opinion holds the petitioners' lawyer must be notified and consent obtained even if arranging the interview is the only purpose, because Rule 4.2 does not require the communication to be substantive.

Q: Does this opinion cover child-custody cases too?

A: No. The opinion limits its holding to GALs in adoption proceedings and notes child-custody proceedings are governed by Supreme Court Rules 900-908, which give child representatives an unimpeded right to interview their clients.

Background and rules framework

The opinion interprets Illinois Rule 4.2 (communication with a represented person; Model Rule 4.2) and its protective purposes, applying it to a court-appointed guardian ad litem under the Illinois Adoption Act. It distinguishes child-custody proceedings governed by Illinois Supreme Court Rules 900-908, including Rule 907(b).

Citations and references

Rules of Professional Conduct:

• Illinois RPC 4.2 (communication with represented persons) / MR 4.2

Statutes and rules:

• Illinois Adoption Act, 750 ILCS 50/13(B)(a)
• Illinois Supreme Court Rules 900-908, including Rule 907(b)

Cases:

• Disciplinary Proceedings against Kinast, 192 Wis. 2d 36, 530 N.W.2d 387 (1995), contacting a minor's GAL to interview the minor
• In re Galic, Comm'n No. 02 CH 104 (ARDC Hearing Board 2004), Rule 4.2 communication need not be substantive

Other opinions cited:

• D.C. Bar Op. 295 (2000); Wisconsin Formal Op. E-89-14 (1989)

See also

• NYC Bar Ethics Op. 2011-01: Contacting Former Clients Represented by Successor Counsel
• NYC Bar Ethics Op. 2007-01: The No-Contact Rule and In-House Counsel
• NY State Bar Op. 1047: Government Lawyer Interviewing a Represented Person's Clients

Source

• Landing page: https://www.isba.org/ethics/opinions/1306