When a California court-appointed dependency lawyer is told in confidence by a minor client that the minor is being sexually abused at the placement and the client instructs the lawyer not to disclose, may the lawyer override that instruction in the minor's best interests?
LACBA Ethics Opinion 504: Minor Client's Confidentiality in Dependency Proceedings
Short answer: Under Bus. & Prof. Code section 6068(e) and former California Rules 3-110 and 5-200(B) as analyzed in this opinion, a court-appointed lawyer who learns from a minor client in confidence that the minor is being sexually abused at a court-ordered placement must honor the minor's instruction not to disclose, when the lawyer reasonably believes the minor is competent to make an informed decision. If the disagreement materially impairs the lawyer's ability to provide competent representation, the lawyer must seek to withdraw under Rule 3-700(C)(1)(a), still without disclosing. If the lawyer reasonably believes the minor is not competent, the lawyer may seek the appointment of a guardian ad litem without disclosing the confidential information, and after appointment may share the information with and take instructions from the guardian.
Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the Los Angeles County Bar Association's view 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. We do not reproduce the opinion text on this page; follow the linked source for the official text, which controls.
Plain-English summary
The committee considers a lawyer appointed by the dependency court to represent a minor under Welfare & Institutions Code section 317. During a confidential consultation, the minor tells the lawyer the minor is being sexually assaulted at the court-ordered placement and explicitly instructs the lawyer not to disclose. The lawyer believes non-disclosure may not be in the minor's best interest and asks whether Welfare & Institutions Code section 317 imposes a disclosure obligation that overrides the duty of confidentiality.
The committee declines to opine on the evidentiary question of whether court-appointed dependency counsel face an implicit attorney-client privilege exception, treating that as legal rather than ethical. It then frames the ethical analysis in three steps.
First, the duty of confidentiality. Bus. & Prof. Code section 6068(e)'s duty to "maintain inviolate the confidence" applies regardless of court appointment. The committee notes that on three occasions in the preceding decade, the California Supreme Court declined to align section 6068(e) with the Evidence Code's privilege exceptions (sections 956, 956.5), so the ethical duty can survive even where the evidentiary privilege does not. The committee distinguishes the inquiry from a perpetrator-client scenario.
Second, communication and the assessment of competence. The lawyer's duty of competence (former Rule 3-110) requires the lawyer to communicate with the minor using terminology and concepts appropriate to the minor's age, language skills, intelligence, experience, maturity, and mental condition. The committee surveys the California and out-of-state legal landscape on when minors are presumed capable of decision-making (W&I Code section 317; Family Code sections 6922, 6924, 6926; CCP section 437(b)(1)), reviewing scholarship including Goldstein, Freud & Solnit (1979) and Guggenheim (1984), and the Mass. Bar's 96-6 (1993) on representing a 13-year-old. The committee rejects a presumptive age cutoff and directs the lawyer to evaluate competence on the totality of the circumstances.
Third, the consequences of the competence determination. If the lawyer reasonably believes the minor is competent to make an informed decision, the minor's instruction controls. The committee identifies the lawyer's options when the disagreement is irreconcilable: under former Rule 3-700(C)(1)(a), the lawyer must seek to withdraw, and may do so without disclosing the underlying facts. Even after withdrawal, the lawyer remains bound by section 6068(e). The committee notes that the lawyer's duty of candor to the tribunal (former Rule 5-200(B); Di Sanatino v. State Bar (Cal. 1980)) reaches material omissions, so the lawyer cannot answer a tribunal's question about whether the minor should remain in the placement; the lawyer must instead advise the court that the lawyer cannot respond.
If the lawyer reasonably believes the minor is not competent to make an informed decision, the committee, drawing on W&I Code section 300.2 (maximum safety and protection for dependent children) and treating juvenile-dependency representation as sui generis, permits the lawyer to seek appointment of a guardian ad litem. The committee distinguishes this from the general rule (State Bar Formal Opinion 1989-112; LACBA Formal Opinion 450) that a lawyer cannot seek a conservator over a current client's objection. The lawyer must seek the guardian appointment without disclosing the minor's confidential information.
Once a guardian ad litem is appointed, the committee assumes the guardian controls the litigation and the attorney-client privilege (De Los Santos v. Superior Court (Cal. 1980); Family Code section 6601). The lawyer may then discuss the confidential information with the guardian and take instructions from the guardian, even if those instructions conflict with the minor's wishes.
In practice
The opinion holds that, under California's pre-2018 rules and Bus. & Prof. Code section 6068(e) as they stood in 2000, court appointment does not change the lawyer's ethical duty of confidentiality; the dependency lawyer is the minor's lawyer, not the minor's guardian ad litem. The committee identifies the lawyer's options as: (1) competent minor's instruction controls, withdrawal if the relationship is impaired, no disclosure; (2) non-competent minor permits seeking a guardian ad litem without disclosure, then taking the guardian's instructions; (3) candor-to-tribunal duties require neither affirmative falsehood nor material omission. The lawyer must navigate by declining to answer rather than answering falsely.
California's professional-conduct rules were revised effective November 1, 2018. The duty of confidentiality remains in section 6068(e) and current Rule 1.6; former Rule 3-110 maps to current Rule 1.1; former Rule 5-200(B) maps to current Rule 3.3; former Rule 3-700(C) maps to current Rule 1.16(b). California has not adopted ABA Model Rule 1.14 on clients with diminished capacity, although the committee's analysis tracks that framework. The committee's analysis predates the 2018 revisions.
Common questions
Q: Does a California court-appointed dependency lawyer have a different confidentiality duty than other lawyers?
A: Per the opinion, no. The fundamental duty under Bus. & Prof. Code section 6068(e) applies regardless of court appointment, and court appointment does not make the lawyer the minor's guardian ad litem.
Q: If the minor client is competent and says don't disclose, can the lawyer disclose anyway because the minor is being abused?
A: Per the opinion, no. The minor's competent informed decision controls, even when the lawyer believes the decision is not in the minor's best interest.
Q: What if the lawyer cannot competently represent the minor under those circumstances?
A: Per the opinion, the lawyer must seek to withdraw under former Rule 3-700(C)(1)(a). The withdrawal itself must not disclose the confidential information.
Q: How does the lawyer assess whether the minor is competent?
A: Per the opinion, the lawyer must consider the minor's age, language skills, intelligence, experience, maturity, and mental condition. The committee rejects a presumptive age threshold.
Q: What if the lawyer reasonably believes the minor is not competent?
A: Per the opinion, the lawyer may seek the appointment of a guardian ad litem, treating juvenile-dependency representation as sui generis under W&I Code section 300.2. The lawyer must seek the appointment without disclosing the underlying confidential information.
Q: Once a guardian ad litem is appointed, can the lawyer share the confidential information with the guardian?
A: Per the opinion, yes. The committee assumes the guardian controls the minor's privilege under De Los Santos and Family Code section 6601. The lawyer takes instructions from the guardian, even when they conflict with the minor's prior instructions.
Q: What does the lawyer say if the court asks whether the minor should remain at the placement?
A: Per the opinion, the lawyer cannot answer "no" (would breach section 6068(e)) or "yes" (would violate former Rule 5-200(B)). The lawyer should advise the court that the lawyer cannot respond.
Background and rules framework
The opinion interprets former California Rules of Professional Conduct 1-100(A), 3-110 (competence), 3-700(C)(1)(a) (withdrawal), and 5-200(B) (candor to tribunal), Bus. & Prof. Code section 6068(e), and Evidence Code sections 956 and 956.5. It anchors the dependency-procedure framework in Welf. & Inst. Code sections 317, 326, 356.5, and 300.2, Family Code sections 6601, 6922, 6924, and 6926, and CCP sections 372(a) and 437(b)(1). It treats ABA Model Rules 1.2(a), 1.4(b), 1.14(a), and 1.14(b) as guidance under State Comp. Ins. Fund v. WPS, Inc. (1999).
Citations and references
Rules of Professional Conduct:
- Former California Rule 1-100(A) (purpose and function of rules)
- Former California Rule 3-110 (competence)
- Former California Rule 3-700(C)(1)(a) (permissive withdrawal)
- Former California Rule 5-200(B) (candor to tribunal)
- ABA Model Rules 1.2(a), 1.4(b), 1.14(a), 1.14(b) (treated as guidance)
Statutes:
- Bus. & Prof. Code section 6068(e) (confidentiality)
- Code of Civil Procedure section 372(a) (guardian ad litem appointment)
- Code of Civil Procedure section 437(b)(1)
- Evidence Code sections 956 and 956.5 (privilege exceptions)
- Family Code sections 6601, 6922, 6924, 6926
- Penal Code sections 11164 and 11166 (child-abuse reporting; not applicable to lawyers)
- Welfare & Institutions Code sections 317, 326, 356.5, 300.2
Cases:
- Considine Co., Inc. v. Shadle, Hunt & Hager, 187 Cal.App.3d 760 (1986), duty to fully inform client
- De Los Santos v. Superior Court, 27 Cal.3d 677 (Cal. 1980), guardian ad litem controls minor's privilege
- Di Sanatino v. State Bar, 27 Cal.3d 159 (Cal. 1980), candor reaches material omissions
- In re Gault, 387 U.S. 1 (1967)
- In re Rose Lee Ann L., 1999 WL 701336 (Ill. App. 1999), withdrawal correct response to representation impasse
- Moeller v. Superior Court, 16 Cal.4th 1124 (Cal. 1997), successor trustee holds privilege
- Noe v. True, 507 F.2d 9 (6th Cir. 1974)
- People v. Bolden, 99 Cal.App.3d 375 (1979)
- People v. Singh, 123 Cal.App. 365 (1932), confidentiality paramount
- State Comp. Ins. Fund v. WPS, Inc., 70 Cal.App.4th 644 (1999), Model Rules as guidance
- Swidler & Berlin v. United States, 524 U.S. 399 (1998)
- Tarasoff v. Regents of University of California, 17 Cal.3d 425 (Cal. 1976)
- United States v. Zolin, 491 U.S. 554 (1989)
- Upjohn v. United States, 449 U.S. 383 (1981)
Other opinions cited:
- Cal. State Bar Formal Opinions 1977-45, 1984-77, 1987-93, 1988-96, 1989-112
- LACBA Formal Opinions 264, 353, 417 (1983), 436 (1985), 450 (1988)
- San Francisco Bar Formal Opinion 1999-2
- Mass. Bar Formal Opinion 96-6 (1993)
- North Carolina Opinion RPC 120 (1992)
- Utah Opinion 97-12 (1998)
See also
- LACBA Opinion 491: Office Files Destruction When Client Deceased
- LACBA Opinion 509: Release of Client Mental-Health Records
- LACBA Opinion 498: Withdrawal to Avoid Making a Disclosure
Source
- Landing page: https://lacba.org/?pg=ethics-opinions
- Original PDF: https://lacba.org/docDownload/2010602