Can a lawyer-guardian ad litem for a child file a report with the court without breaching the child's confidences?

Plain-English summary

A lawyer appointed to represent a minor in a child protective proceeding received a circuit court form letter directing the attorney for the child to file a one-to-two-page written report before the adjudication or termination hearing, addressing the child's condition and concerns, the lawyer's concerns, and the lawyer's recommendations. The lawyer worried the directive might compel sharing of privileged information or otherwise violate the Rules of Professional Conduct.

The Committee explained that the answer turned on the statutory basis for the appointment. If the court appointed the lawyer as an ordinary guardian ad litem under MCLA 700.24 and MCR 5.201, no lawyer-client relationship existed and the lawyer should disclose all information the court requested. Here, however, the appointment was as a lawyer-guardian ad litem under MCLA 712A.17d, in which the lawyer acts as the minor's advocate and an attorney-client relationship exists, so the lawyer was bound by MRPC 1.6 and its protection of "confidences" and "secrets."

The Committee found none of the MRPC 1.6(c) exceptions present: no client consent, no subpoena or order, no involvement in illegal or fraudulent acts, no intent to commit a crime, and no fee or self-defense issue. It concluded the lawyer should not reveal client confidences or secrets in any written report or oral statement. Following JI-32 and RI-261, RI-54, RI-111, and RI-106, a lawyer asked to produce privileged or protected information without client consent must await a subpoena, assert the privilege, and await the presiding judge's instruction. The Committee held the lawyer-guardian ad litem may prepare a report so long as it complies with MRPC 1.6.

Currency note

This opinion was issued in 2000 and interprets the Michigan Rules of Professional Conduct and the child-protective statutes as they then stood. The MRPC and those statutes and court rules have since been amended, and 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 Treat this page as historical context, not current guidance.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: Does a lawyer-guardian ad litem have an attorney-client relationship with the child?

A: The opinion concluded that a lawyer-guardian ad litem appointed under MCLA 712A.17d acts as the minor's advocate and has an attorney-client relationship, so MRPC 1.6 applies; an ordinary guardian ad litem under MCLA 700.24 / MCR 5.201 does not.

Q: Can the court order the lawyer to file a report that discloses the child's confidences?

A: The opinion concluded the lawyer should not reveal confidences or secrets where no MRPC 1.6(c) exception applied; the lawyer could file a report that complied with MRPC 1.6.

Q: What should the lawyer do if asked to produce protected information?

A: Per the opinion and JI-32, the lawyer should await a subpoena, assert the attorney-client privilege, and await the presiding judge's instruction before releasing the information.

Background and rules framework

The opinion interpreted MRPC 1.6 / Model Rule 1.6 in Michigan's "confidence or secret" formulation, applying it to a lawyer-guardian ad litem appointed under MCLA 712A.17d. It distinguished the role of an ordinary guardian ad litem under MCLA 700.24 and MCR 5.201, for whom no attorney-client relationship exists.

Citations and references

Rules of Professional Conduct:

• MRPC 1.6 / Model Rule 1.6 (confidentiality of confidences and secrets)

Statutes:

• MCLA 712A.17d (lawyer-guardian ad litem); MCLA 700.24 and MCR 5.201 (guardian ad litem)

Other opinions cited:

• RI-261, RI-54, RI-111, RI-106; JI-32: procedure for responding to requests for privileged or protected information

See also

• Mich Ethics Op. RI-335: Reporting Nonpaying Clients to a Credit Reporting Agency
• Mich Ethics Op. RI-328: Government Law Department Use of Shared IT Support

Source

• Landing page: https://www.michbar.org/opinions/ethics/numbered_opinions?OpinionID=1188&Type=6

Original opinion text

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

RI-318

March 22, 2000

SYLLABUS

A lawyer appointed as lawyer-guardian ad litem for a minor in a child protective proceeding may prepare a written report to the court as long as the lawyer does not reveal the child/client's confidences and secrets.

References: MRPC 1.6; RI-261, RI-54, RI-111, RI-106; JI-32.

TEXT

A lawyer accepts an appointment to represent a minor in a child protective proceeding. The lawyer receives as part of the appointment process, a form letter from the Circuit Court that states:

"Attorney Responsibilities . . . the following list is a summary of expectations of the attorney for the child(ren): . . . 3. A one to two-page written report from the attorney is to be filed with the Court at least one week prior to the adjudication or termination hearing. An oral report will not be acceptable! The report should address the condition of the child, the concerns of the child, the concerns of the lawyer for the child and any recommendations of the lawyer."

The lawyer is concerned that this directive from the court may require the sharing of information that is protected by the attorney/client privilege, and/or may be a violation of the Michigan Rules of Professional Conduct. The answer to this inquiry depends on the statutory authority relied on by the court making the appointment because the court can appoint a guardian ad litem or a lawyer-guardian ad litem.

If the court appoints the lawyer to serve as guardian ad litem under MCLA 700.24 and/or MCR 5.201, no lawyer/client relationship exists, and the lawyer should disclose all information requested by the court. See MCR 5.201(E)(2).

In this case, however, the lawyer receives from the appointing judge an assignment as lawyer-guardian ad litem, whose duties and responsibilities are governed by MCLA 712A.17d. In this service, the lawyer acts as an advocate for the minor and an attorney/client relationship exists. The appointed lawyer-guardian ad litem is bound to abide by the Rules of Professional Conduct and specifically MRPC 1.6(a),(b) and (c) , Confidentiality of Information that states:

"(a) 'Confidence' refers to information protected by the client-lawyer privilege under applicable law, and 'secret' refers to other information gained in the professional relationship that the client has requested be held inviolate or the disclosure of which would be embarrassing or would be likely to be detrimental to the client.

(b) Except when permitted in paragraph (c) above, a lawyer shall not knowingly:

(1) reveal a confidence or secret of a client;

(2) use a confidence or secret of a client to the disadvantage of the client; or

(3) use a confidence or secret of a client for the advantage of the lawyer or of a third person, unless the client consents after full disclosure.

(c) A lawyer may reveal:

(1) confidences or secrets with the consent of the client or clients affected, but only after full disclosure to them;

(2) confidences or secrets when permitted or required by these rules, or when required by law or by court order;

(3) confidences and secrets to the extent reasonably necessary to rectify the consequences of a client's illegal or fraudulent act in the furtherance of which the lawyer's services have been used;

(4) the intention of a client to commit a crime and the information necessary to prevent the crime; and

(5) confidences or secrets necessary to establish or collect a fee, or to defend the lawyer or the lawyer's employees or associates against an accusation of wrongful conduct."

There is nothing to suggest that any of the exceptions contained in MRPC 1.6(c) exist. There is no indication of client consent to disclosure of confidential or secret information. The lawyer has not received a subpoena or Order. The Committee is not presented with information of the client's involvement in illegal or fraudulent acts, or of the client's intention to commit a crime. The lawyer is not collecting a fee or responding to claims of wrongdoing. Thus, the lawyer should not reveal any client confidences or secrets in his or her written reports or oral statements.

Confidences or secrets are defined in 1.6(a): 'Confidence' refers to information protected by the client-lawyer privilege under applicable law, and 'secret' refers to other information gained in the professional relationship that the client has requested be held inviolate or the disclosure of which would be embarrassing or would be likely to be detrimental to the client."

Although what constitutes privileged information is a question of law and beyond the scope of the Committee's jurisdiction, the procedures for responding to such requests are clear. See JI-32. A lawyer who is asked to produce information that is covered by the attorney-client privilege or that contains confidences and secrets within MRPC 1.6, and with regard to which the client does not consent to disclosure, must await a subpoena, exercise the attorney-client privilege, and await the presiding judge's instruction of whether to release the information. RI-261, RI-54, RI-111, RI-106; JI-32.

It is permissible for the lawyer-guardian ad litem to prepare a report as long as the lawyer complies with MRPC 1.6.