Ezel / Ethics Opinions / MOLEC

May a parent’s lawyer discuss a custody matter with a child who has a guardian ad litem?

Short answer The opinion generally treats an attorney GAL as the child’s lawyer and bars discussing the matter with the child under Rule 4-4.2, while allowing the lawyer to be in the child’s presence.
Bar
MOLEC
Issued
2003

Apply this to your situation

This page answers the general question as of 2003. Ask about yours and see what the current Missouri Rules of Professional Conduct say for your facts, with citations.

Currency note: this opinion is from 2003
Subsequent statutory amendments, court decisions, or later opinions or rule amendments may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
How much weight this carries: Under Missouri Supreme Court Rule 5.30, formal opinions are binding; informal opinions are advisory. Source.
About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked on this page) is the authoritative source for any reliance.

Plain-English summary

Counsel for a custodial parent asked whether direct contact with a child is permissible when a guardian ad litem has been appointed.

The opinion says a GAL is not always the child’s lawyer, but generally an attorney GAL functions as one. Absent contrary facts, party counsel should not discuss the matter with the child under Rule 4-4.2. Mere presence near the child is allowed; communication about the representation is the restricted conduct.

In practice

The opinion distinguishes being present with the child from communicating with the child about the represented matter.

Common questions

Q: Is every GAL necessarily the child’s attorney?

A: No. The opinion says a GAL is not always the child’s lawyer, although an attorney GAL generally functions as one.

Q: May the parent’s lawyer be in the child’s presence?

A: Yes. The opinion says Rule 4-4.2 prohibits communication about the matter, not mere presence.

Q: May counsel discuss the custody matter with the child?

A: Generally no, absent facts showing a different status for the GAL.

Background and rules framework

The opinion applies Rule 4-4.2 to communications with a child treated as represented by an attorney GAL.

Citations and references

Missouri Rules of Professional Conduct:

  • Rule 4-4.2

See also

Source

Original opinion text

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

QUESTION: Can attorneys for custodial parents have contact with children who have had a guardian ad litem appointed for them?

ANSWER: Although a GAL is not always the attorney for the child, generally an attorney who is a GAL is treated as functioning as an attorney. Without facts that would indicate otherwise, the initial approach would be that the attorney for a party should not communicate with the child about the matter.The key word, in relation to Rule 4–4.2, is “communicate.” Rule 4–4.2 does not prohibit an attorney from being in the presence of a represented party; it prohibits communication about the subject of the representation. The attorney for either parent could be in the presence of the child who has a guardian ad litem but should not communicate with the child regarding the matter. This may mean that the child would need to be kept outside the hearing of the conversation between the attorney and parent.

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