Does a guardian ad litem need the consent of a represented person's lawyer before interviewing that person?

Plain-English summary

Under G.S. § 7B-601 of the Juvenile Code, a guardian ad litem (GAL) is appointed for every child alleged to be abused or neglected, and a nonlawyer GAL is paired with an appointed attorney advocate; both have standing to represent the juvenile. A nonlawyer GAL appointed for a child allegedly sexually abused by her father wanted to interview the child's mother, who is represented by her own attorney. The question is whether the GAL must get that attorney's approval before communicating with the mother.

The opinion concludes she need not. Rule 4.2 prohibits communication with a represented person only "[d]uring [the lawyer's] representation of a client," and that prohibition does not apply to nonlawyers, so it does not reach the nonlawyer GAL. The opinion reaches the same result for a GAL who is a lawyer but is performing only the guardian-ad-litem role and not the attorney-advocate role: serving as the appointed special guardian "at law" of the child, she is not acting in the course of representing a client and so is not subject to Rule 4.2. Finally, the answer does not change if the person the GAL wants to interview also has an appointed GAL.

In practice

Under the North Carolina rule as it stood at the time of the opinion, the analysis turns on whether the person seeking the communication is acting as a lawyer representing a client. The opinion holds that Rule 4.2 governs only lawyers in the course of a representation, so a nonlawyer GAL, or a lawyer functioning solely as a GAL rather than as the attorney advocate, may contact a represented person without the lawyer's consent.

Per the opinion, the presence of a GAL for the person to be interviewed does not alter the result.

Common questions

Q: Can a nonlawyer guardian ad litem interview a represented party without the party's lawyer's permission?

A: Yes. The opinion concludes Rule 4.2 applies only to lawyers representing clients, not to nonlawyers, so a nonlawyer GAL may interview the represented person without the lawyer's consent.

Q: What if the guardian ad litem is a lawyer?

A: It depends on the role. The opinion concludes that if the lawyer is acting solely as the guardian ad litem and not as the attorney advocate, she is not representing a client for Rule 4.2 purposes and may communicate with the represented person without the lawyer's consent.

Q: Does it matter that the person to be interviewed also has a guardian ad litem?

A: No. The opinion concludes the answer does not change if the person with whom the GAL wishes to speak also has an appointed GAL.

Background and rules framework

The opinion applies North Carolina Rule 4.2 (a lawyer shall not, during the representation of a client, communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer, absent consent), which tracks Model Rule 4.2, against the guardian-ad-litem framework of G.S. § 7B-601. The opinion turns on the rule's threshold limit to lawyers acting in the course of representing a client.

Citations and references

Rules of Professional Conduct:

• MR 4.2 / NC Rule 4.2 (communication with a person represented by counsel, during a lawyer's representation of a client)

Statutes:

• N.C. Gen. Stat. § 7B-601 (appointment and duties of a guardian ad litem in juvenile abuse and neglect proceedings)

See also

• ABA Formal Op. 95-396: Communications with Represented Persons
• ABA Formal Op. 502: Communication with a Represented Person by a Pro Se Lawyer

Source

• Landing page: https://www.ncbar.gov/for-lawyers/ethics-and-governing-rules/ethics-opinions/opinions/2006-formal-ethics-opinion-19/

Original opinion text

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

Inquiry #1:

G.S. Section 7B-601 of the Juvenile Code provides for the appointment of a guardian ad litem (GAL) for every child alleged to be abused or neglected. The section states that a GAL who is not an attorney shall be appointed an attorney to assure the protection of the child's legal rights through the dispositional phase of the proceedings and after disposition when necessary to further the best interests of the child. The section also provides that the GAL and the attorney advocate have standing to represent the juvenile in all actions under the subject chapter.

Some of the duties of the GAL, as defined in G.S. 7B-601, include: investigating the facts, the needs of the juvenile, and the available resources within the family and community to meet those needs; facilitating, when appropriate, the settlement of disputed issues; exploring options with the judge at the dispositional hearing; and protecting and promoting the best interests of the juvenile.

It is alleged that Child A was sexually abused by her father. Attorney X and Guardian Ad Litem Y were appointed to represent Child A in the juvenile petition. Guardian Ad Litem Y is not an attorney. She is interested in interviewing the mother of Child A. The mother is represented in this matter by another attorney. Must Guardian Ad Litem Y obtain the approval of the mother's attorney before communicating with the mother?

Opinion #1:

No. Rule 4.2 only prohibits communications with a represented person "[d]uring [the lawyer's] representation of a client." This prohibition does not apply to Guardian Ad Litem Y because it does not apply to nonlawyers.

Inquiry #2:

Would Opinion #1 be different if Guardian Ad Litem Y is an attorney but is performing the role of guardian ad litem solely and is not performing the role of the attorney advocate?

Opinion #2:

No. Guardian Ad Litem Y may communicate with the mother without obtaining the consent of the mother's attorney. If Guardian Ad Litem Y is not acting as the attorney advocate but is only serving as the appointed special guardian "at law" of the child, she is not subject to the prohibition in Rule 4.2 because she is not acting in the course of her representation of a client. See Opinion #1.

Inquiry #3:

Would Opinion #1 change if the person with whom Guardian Ad Litem Y wanted to speak also had an appointed GAL?

Opinion #3:

No.