When a Kentucky lawyer serves as a court-appointed guardian ad litem, who is the client, and can the lawyer take protective action against the client's wishes?

Plain-English summary

The opinion answers two questions about a lawyer appointed as a guardian ad litem (GAL) for a minor, prisoner, or legally disabled person. To the first, whether the GAL owes ethical duties to that person as opposed to the court, the answer is yes. To the second, whether a GAL who reasonably believes the client has diminished capacity and is at risk of substantial harm may take reasonably necessary protective action even against the client's wishes, the answer is a qualified yes.

On the first question, the opinion explains that under Kentucky law the GAL is appointed to represent persons under legal disability and stands in the client's place, functioning as "both a fiduciary and lawyer of the infant, and in a special sense, the representative of the court." The opinion holds that the GAL is held to Kentucky's Rules of Professional Conduct except where statute (KRS 387.305) governs, and owes the appointed person the ordinary duties of competence (SCR 3.130(1.1)), communication (SCR 3.130(1.4)), and confidentiality (SCR 3.130(1.6)). It notes the tension critics have identified between a statutory "best interest" mandate and an attorney's duty to advocate the client's expressed objectives.

On the second question, the opinion applies SCR 3.130(1.14) on clients with diminished capacity. That rule lets the lawyer take "reasonably necessary protective action" when the client's capacity is diminished, the client is at risk of substantial physical, financial, or other harm, and the client cannot act in their own interest. The opinion walks through the Rule's commentary on how to assess diminished capacity (Comment 6 factors) and what protective measures are available (Comment 5), and stresses that confidentiality under SCR 3.130(1.6) continues to apply, so the lawyer ordinarily cannot disclose the client's diminished capacity without authority.

In practice

Under this opinion, a Kentucky GAL represents the appointed person as a client and owes that person competence, communication, and confidentiality, not a free-standing duty to the court. The opinion holds that where the GAL reasonably believes the client has diminished capacity and faces substantial harm and cannot act in their own interest, the lawyer may take reasonably necessary protective action under SCR 3.130(1.14), guided by the client's known wishes and values, the client's best interests, and the least restrictive intrusion into the client's decision-making. The opinion states that when the lawyer is convinced the client wants a result at odds with the client's best interest, the lawyer must first explain why, and if the client agrees, may advise the court of the disagreement; if the client does not agree, the lawyer may move to withdraw as GAL citing only irreconcilable differences.

Common questions

Q: When a lawyer is appointed guardian ad litem, is the client the minor or the court?

A: The client is the minor, prisoner, or disabled person. The opinion answers Question 1 yes, explaining the GAL stands in the appointed person's place and owes that person the duties of competence, communication, and confidentiality, even while also serving "in a special sense" as a representative of the court.

Q: Can a guardian ad litem take protective action against the client's stated wishes?

A: Qualified yes. The opinion applies SCR 3.130(1.14): if the GAL reasonably believes the client has diminished capacity, is at risk of substantial harm, and cannot act in their own interest, the lawyer may take reasonably necessary protective action.

Q: How does the GAL decide whether the client's capacity is diminished?

A: The opinion points to Comment 6 of SCR 3.130(1.14), which balances factors such as the client's ability to articulate reasoning, variability of state of mind, the substantive fairness of a decision, and consistency with the client's known long-term commitments and values. The Rule also lets the lawyer seek help from a diagnostician.

Q: May the GAL disclose the client's diminished capacity to third parties?

A: Only with care. The opinion explains that information about the client's diminished capacity remains protected under SCR 3.130(1.6); protective action impliedly authorizes disclosure only to the extent reasonably necessary, and Commentary 8 cautions the lawyer not to disclose where doing so could adversely affect the client's interests.

Q: What if the client wants an outcome the GAL believes is against the client's best interest?

A: The opinion directs the lawyer to first explain to the client why the lawyer feels obligated not to pursue it, and, if the client agrees, advise the court of the disagreement and the client's position. If the client does not agree, the lawyer may move to be removed as GAL citing only irreconcilable differences.

Background and rules framework

The opinion interprets four Kentucky rules: SCR 3.130(1.1) (competence), SCR 3.130(1.4) (communication), SCR 3.130(1.6) (confidentiality), and SCR 3.130(1.14) (client with diminished capacity), against the statutory and civil-rule framework for guardians ad litem (CR 17.03, CR 17.04, the FCRPP, and KRS 387.305). It draws heavily on Morgan v. Getter, 441 S.W.3d 94 (Ky. 2014), which discusses the GAL's history and the tension between best-interest advocacy and the duty to advocate the client's expressed position, and on Black v. Wiedeman, 254 S.W.2d 344 (Ky. 1952). For the meaning of diminished capacity it cross-references KBA E-440.

Citations and references

Rules of Professional Conduct:

• MR 1.1 / SCR 3.130(1.1): competence.
• MR 1.4 / SCR 3.130(1.4): communication with the client.
• MR 1.6 / SCR 3.130(1.6): confidentiality of information.
• MR 1.14 / SCR 3.130(1.14): client with diminished capacity; protective action.

Statutes and rules:

• KRS 387.305: duties of a guardian ad litem; best-interest mandate.
• CR 17.03, CR 17.04: appointment of a GAL for infants, persons of unsound mind, and prisoners.

Cases:

• Morgan v. Getter, 441 S.W.3d 94 (Ky. 2014), history of the GAL and the best-interest/advocacy tension.
• Black v. Wiedeman, 254 S.W.2d 344 (Ky. 1952), the GAL stands in the infant's place as fiduciary and lawyer.

Other opinions cited:

• KBA E-440: discussion of diminished capacity under SCR 3.130(1.14).

See also

• ABA Formal Op. 96-404: Client Under a Disability
• CA COPRAC Op. 2021-207: Client With Diminished Capacity
• Alabama Op. 1995-03: Protective Action for a Client Who Cannot Act for Themselves

Source

• Landing page: https://kybar.org/For-Members/Rules-Ethics-Information/Ethics-Opinions
• Original PDF: https://kybar.org/Portals/0/Admin/Ethics%20Opinions/KBA_E-454.pdf

Original opinion text

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

Formal Ethics Opinion
KENTUCKY BAR ASSOCIATION
Ethics Opinion KBA E-454
Issued: November 19, 2021

The Rules of Professional Conduct are amended periodically. Lawyers should consult the current version of the rule and comments, SCR 3.130 (available at http://www.kybar.org/237), before relying on this opinion.

Subject: Ethical Responsibilities of an Attorney as a Guardian Ad Litem

Question #1: As a Court-appointed Guardian Ad Litem (“GAL”), does the attorney owe ethical duties to the minor, prisoner and/or legally disabled person as opposed to the Court?

Answer: Yes.

Question #2: If the GAL reasonably believes that the client has diminished capacity, is at risk for substantial physical, financial or other harm unless action is taken, and cannot adequately act in his or her own interest, can the GAL take reasonably necessary protective action for the client, even to the point of advocating a position contrary to the client’s wishes?

Answer: Qualified Yes.

Principal References: Supreme Court Rules 3.130 (1.1); SCR 3.130 (1.4); SCR 3.130 (1.6); SCR 3.130 (1.14); Black vs. Wiedeman, 254 S.W.2d 344 (Ky. 1952); Morgan vs. Getter et al., 441 S.W.3d 94 (Ky. 2014).

Kentucky law has long recognized the need to protect the legal rights of minors, prisoners and disabled persons through the appointment of an attorney as the guardian ad litem.[1] Civil Rule (“CR”) 17.03 provides for the appointment of a GAL for infants and persons of unsound mind in civil proceedings. Similarly, CR 17.04 mandates that GALs are to be appointed for prisoners confined either within or without the Commonwealth in pending civil litigation. Kentucky’s Family Court Rules of Procedure and Practice (“FCRPP”) allow the Court to order the appointment of a GAL for children in family law cases if needed.[2] KRS 387.305 sets forth the duties of a GAL. As the Supreme Court has explained, “(The GAL) is appointed to represent defendants who are under legal disability and is given the duty to ‘attend properly to the preparation of the case’ in their behalf.... (The GAL’s) obligation is to stand in the infant’s place and determine what his rights are and what his interests and defense demand. Although not having the powers of a regular guardian, (the GAL) fully represents the infant and is endowed with similar powers for purposes of litigation in hand.... He is, therefore, both a fiduciary and lawyer of the infant, and in a special sense, the representative of the court to protect the minor.”[3]

As the GAL, an attorney[4] is ethically required, as with any other client, to render competent legal representation to the minor, prisoner or disabled person, providing “... the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.”[5] The attorney is required to inform the client of the circumstances of the case, consult with the client about how goals and objectives of the client are to be accomplished, and explain all matters “... to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.”[6] Further, the attorney is not to reveal confidential information imparted by the client to the attorney unless the client gives informed consent, the disclosure is implied authorized so that the attorney can carry out the representation of the client, or the disclosure is specifically permitted by SCR 3.130 (1.6)(b).[7]

Under Kentucky law, a GAL is held to Kentucky’s Rules of Professional Conduct except where the lawyer’s conduct is governed by statute rather than by Rule.[8] In 1966, the Kentucky General Assembly adopted KRS 387.305 to emphasize to GALs that the child’s ‘best interests’ was paramount to the child’s ‘preferences’ in a pending matter: “Whether appointed pursuant to this statute or pursuant to a provision of the Kentucky United Juvenile Code, the duties of a guardian ad litem shall be to advocate for the child’s best interest in the proceeding through which the guardian ad litem was appointed.” Critics have argued that the ‘best interest’ representation as a GAL under Kentucky law, especially in family law cases, does not ‘comport’ with an attorney’s ethical responsibilities under the Kentucky’s Rules of Professional Conduct.[9]

“(A) lawyer undertaking to serve in the hybrid role of attorney-for-the-child / advisor-to-the-court is immediately confronted with a likely conflict between his or her duty to report to the court and the duties to maintain the child-client’s confidences, Supreme Court Rule (SCR) 3.130-1.6, and not to act as both advocate and witness.”[10] Even absent the likely conflicting responsibility as an agent of the court, moreover, critics maintain that a ‘best interest’ lawyer who substitutes his or her best-interest judgment for that of the child runs afoul of the duties to “... advocate ... zealously ... the client’s position.”[11] and to “... abide by a client’s decisions concerning the objectives of (the) representation.”[12]

However, equally as important, are the ethical responsibilities outlined for the attorney in SCR 3.130 (1.14) which deals with those clients with a diminished decision-making capacity.[13] This Rule reminds GALs that a client may have a diminished mental capacity by virtue of minority, age, mental impairment or other reason which places the client at a risk of “... substantial physical, financial or other harm” unless some action is taken by the lawyer, and the client cannot act in his/her own interest. At that point, under this Rule, the attorney is entitled to take “reasonably necessary protective action” for the client.[14]

How does an attorney determine to what extent the client’s capacity is ‘diminished’? Comment 6 to the Rule explains that the lawyer has to balance several factors in making that determination: “... the client’s ability to articulate reasoning leading to a decision; variability of state of mind and ability to appreciate consequences of a decision; the substantive fairness of a decision, and the consistency of a decision with the known long-term commitments and values of the client.”[15] The attorney is also permitted by the Rule to seek professional help from a diagnostician if needed.

Once a determination of diminished capacity decision-making ability is made, then the attorney can consider protective measures which Commentary 5 to the Rule explains includes: “... consulting with family members; using a reconsideration period to permit clarification or improvement of the circumstances; using voluntary surrogate decision-making tools such as durable powers of attorney; (and) consulting with support groups, professional services, adult-protective agencies or other individuals or entities that have the ability to protect the client.”[16] At all times, however, the attorney is required to maintain a normal client-lawyer relationship with the client, and be guided by the wishes and values of the client to the extent known; the client’s best interests, and to make the least restrictive intrusion into the client’s decision-making process.[17]

Further, CR 3.130 (1.14) ( c ) reminds attorneys that information about a client with diminished capacity that is acquired through the representation is protected under the attorney-client confidentiality provisions set out in SCR 3.130(1.6). If an attorney is required to take protective action for the client, the Rule does ‘impliedly authorize’ the attorney to reveal information about the client to the extent reasonably necessary to protect the client’s interest.[18] However, Commentary 8 to the Rule explains that because the disclosure of a client’s diminished capacity could adversely impact the client’s interests, the lawyer cannot disclose that information unless the client gives authority to do so. Thus, when an attorney undertakes protective action for the client by speaking with third parties, care must be taken to avoid that consultation adversely affecting the client and/or the client’s interests in the matter. “The lawyer’s position in such cases is an unavoidably difficult one.”[19]

Furthermore, in those cases in which a lawyer is reasonably convinced that the client with diminished capacity wants a resolution of the matter at odds with what is actually in the client’s best interest, the attorney must first explain to the client why he or she feels obligated not to pursue what the client desires, and, if the client agrees, advise the Court that the client disagrees with the attorney’s assessment of the case, and what the client’s position is regarding the matter. If the client does not agree to allow the attorney to inform the court of the substance of their disagreement, then the attorney may consider filing a motion with the court requesting removal as guardian ad litem citing only irreconcilable differences, “The rules do not preclude, however, an attorney’s reasonable, good faith advocacy in a custody proceeding on behalf of the child’s best interest (for example), even if the child disagrees with the advocate.”[20]

[Footnote 1: For an extensive discussion of the history of the GAL in both Kentucky’s Rules of Civil Procedure and statutory law, review Morgan vs. Getter, et al., 441 S.W.3d 94, 107 (Ky. 2014).]

[Footnote 2: FCRPP, Part III, Part 6: “General Provisions”.]

[Footnote 3: Black vs. Wiedeman, 254 S.W.2d 344, 346 (Ky. 1952), referencing Kentucky’s then-Civil Code of Practice Section 36, cited as authority in Morgan vs. Getter et al., 441 S.W3d 94, 108 (Ky. 2014).]

[Footnote 4: CR 4.04(3) mandates that the GAL be a “practicing attorney”. See also KRS 387.305 which mandates that the GAL appointed to defend an infant who does not have a resident guardian, curator or conservator be a “regular, practicing attorney of the court”.]

[Footnote 5: SCR 3.130-1.1;]

[Footnote 6: SCR 3.130 (1.4) (a) - (b).]

[Footnote 7: SCR 3.130 (1.6).]

[Footnote 8: See Gambrel et al. vs. Paul Croushore, et al., Case No. 2020-CA-0881 (Motion for discretionary review filed on 08/04/2021).]

[Footnote 9: SCR 3.130 et seq.; Morgan, supra at 114, citing Barbara Ann Atwood, The Uniform Representation of Children in Abuse, Neglect and Custody Proceedings Act: Bridging the Divide Between Pragmatism and Idealism, 42 Family Law Quarterly. 63 (2008); See also, ABA/BNA Lawyers’ Manual on Professional Conduct, “Lawyer-Client Relationship: Client with Diminished Capacity.”]

[Footnote 10: Morgan, supra at 116.]

[Footnote 11: SCR 3.130 Preamble]

[Footnote 12: SCR 3.130 (1.2), as cited in Morgan, supra at 116.]

[Footnote 13: For an extensive discussion of what is ‘diminished capacity’ for purposes of SCR 3.130(1.14), see KBA E-440.]

[Footnote 14: SCR 3.130 (1.14) (a).]

[Footnote 15: SCR 3.130 (1.14) at Supreme Court Commentary (6).]

[Footnote 16: Id. at Commentary (5).]

[Footnote 17: See, SCR 3.130(1.14).]

[Footnote 18: SCR 3.130 (1.14) ( c ).]

[Footnote 19: Id. at Commentary (8).]

[Footnote 20: Morgan, supra at 116.]

Note To Reader

This ethics opinion has been formally adopted by the Board of Governors of the Kentucky Bar Association under the provisions of Kentucky Supreme Court Rule 3.530. This Rule provides that formal opinions are advisory only.