When a child in an abuse or neglect case has a guardian ad litem and an attorney advocate, can opposing lawyers, the prosecutor, or DSS interview the child without the advocate's consent?

Plain-English summary

The opinion addressed who may interview a child who is the subject of an abuse and neglect proceeding when the court has appointed both a guardian ad litem (GAL) and an attorney advocate under the Juvenile Code. It applied Rule 7.4(1), which barred a lawyer, during a representation, from communicating about the subject of the representation with a party the lawyer knew to be represented by another lawyer, absent that lawyer's consent or authorization by law.

The opinion concluded that because the child was represented by the attorney advocate, the advocate's consent was required before anyone on the other side interviewed the child. That applied to the mother's lawyer, to the district attorney prosecuting the mother, and to the DSS attorney; the opinion noted that permission from the DSS attorney did not suffice because the DSS attorney did not represent the child. It relied on the comment to Rule 7.4, which extended the rule to "any person, whether or not a party to a formal proceeding, who is represented by counsel concerning the matter in question."

The opinion also concluded that a prosecutor could not instruct a sheriff's deputy to interview the child, reasoning that an attorney may not instruct an agent to do what the attorney cannot do. It addressed two variations on the appointment. If the GAL is also an attorney but a separate attorney advocate was appointed, the GAL is not acting as the child's attorney, and the advocate's consent still controls. If the court appoints a GAL but no attorney advocate, the consent of the GAL must be obtained before communicating with the child, consistent with the purpose of the Juvenile Code and RPC 61, and the same result follows for a GAL appointed under Rule 17 for infants or incompetent persons in civil actions.

Currency note

This opinion was issued in 1997, before the North Carolina State Bar's adoption of the 2003 revisions to the Rules of Professional Conduct. Subsequent rule amendments or 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 Treat this page as historical context, not current guidance.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: Can the mother's lawyer interview the child without telling the attorney advocate?

A: No. The opinion concluded that the child is represented by the attorney advocate, so the advocate's consent must be obtained before the mother's lawyer communicates with the child.

Q: Does the DSS attorney's permission let the mother's lawyer interview the child?

A: No. The opinion concluded that the DSS attorney does not represent the child, so the DSS attorney's permission cannot substitute for the attorney advocate's consent.

Q: Can the district attorney interview the child, or send a deputy to do it?

A: No on both. The opinion concluded that the prosecutor needs the advocate's consent, and that the prosecutor cannot instruct a sheriff's deputy to interview the child because a lawyer may not instruct an agent to do what the lawyer cannot do.

Q: What if the child has a GAL but no separate attorney advocate?

A: The opinion concluded that the consent of the GAL must be obtained before communicating with the child, consistent with the purpose of the Juvenile Code and RPC 61, and the same applies to a GAL appointed under Rule 17 in a civil action.

Background and rules framework

The opinion applied North Carolina's then-current Rule 7.4 governing communication with a person represented by counsel, which corresponds to Model Rule 4.2. The comment to Rule 7.4 extended the prohibition to any person represented concerning the matter in question, whether or not a formal party. The opinion relied on RPC 87 and RPC 61 for the represented-person analysis and on the appointment provisions of the Juvenile Code (G.S. 7A-586) and Rule 17 of the Rules of Civil Procedure.

Citations and references

Rules of Professional Conduct:

• MR 4.2 (communication with person represented by counsel)
• North Carolina Rule 7.4 (communicating with a represented party)

Statutes:

• G.S. 7A-586(a) (appointment of guardian ad litem and attorney advocate for abused or neglected child)
• G.S. 1A-1, Rule 17 (guardian ad litem for infants or incompetent persons in civil actions)

Other opinions cited:

• RPC 87: communication with a represented person
• RPC 61: communication with a represented minor through a guardian

See also

• NC Ethics Op. RPC 93: interviewing represented codefendants
• NC Ethics Op. 99 FEO 10: contacting employees of a represented organization
• NC Ethics Op. 97 FEO 10: undercover officer planted in a represented defendant's cell

Source

• Landing page: https://www.ncbar.gov/for-lawyers/ethics-and-governing-rules/ethics-opinions/opinions/rpc-249/

Original opinion text

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

Inquiry #1:

Joey is ten years old. He lives with his mother and her boyfriend. The Department of Social Services (DSS) substantiated numerous abuse allegations against the mother for improper discipline and beatings. After no improvement in the mother's behavior, DSS filed a neglect and abuse petition and received a nonsecure custody order. Pursuant to G.S. §7A-586(a) of the Juvenile Code, the court appointed a guardian ad litem and an attorney advocate to represent the interests of Joey. G.S. §7A-586(a) provides for the appointment of a guardian ad litem (GAL) for every child alleged to be abused or neglected. The statute 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 GAL and the attorney advocate have standing to represent the juvenile in all actions under the subchapter.

The attorney for Joey's mother, Attorney M, would like to interview Joey without informing the GAL or the attorney advocate. May he do so?

Opinion #1:

Rule 7.4(1) provides that, during the course of his or her representation of a client, a lawyer is prohibited from communicating or causing another to communicate about the subject of the representation with a party the lawyer knows to be represented by another lawyer in the matter unless the lawyer has the consent of the other lawyer or is authorized by law to do so. Joey is represented by an attorney, and the attorney advocate's consent must be obtained prior to any communication by Attorney M with Joey.

Inquiry #2:

Is the permission of the attorney for DSS sufficient to allow Attorney M to interview Joey without the consent of the attorney advocate?

Opinion #2:

No, the attorney for DSS does not represent Joey.

Inquiry #3:

The district attorney intends to prosecute the mother for child abuse. The district attorney would like to interview Joey without informing or obtaining the consent of the GAL or the attorney advocate. May the district attorney interview Joey under these circumstances?

Opinion #3:

No. The comment to Rule 7.4 states, "This rule also covers any person, whether or not a party to a formal proceeding, who is represented by counsel concerning the matter in question." See also RPC 87.

Inquiry #4:

May the district attorney instruct a sheriff's deputy to interview Joey without informing or obtaining the consent of the GAL or the attorney advocate?

Opinion #4:

No, an attorney may not instruct an agent to do that which the attorney cannot do. See Rule 3.3.

Inquiry #5:

May the attorney for DSS interview Joey without informing or obtaining consent of the GAL or the attorney advocate?

Opinion #5:

No. See opinion #1 above.

Inquiry #6:

If the GAL is also an attorney, would any of the above opinions be different?

Opinion #6:

No. If an attorney advocate was appointed, the GAL is not acting in the capacity of an attorney for the juvenile. Rule 7.4(d) requires the consent of the attorney representing the client prior to direct communication with the client.

Inquiry #7:

If the court appoints a GAL for Joey but does not appoint an attorney advocate, may the attorney for Joey's mother, the district attorney, or the attorney for DSS interview Joey without the consent of the GAL?

Opinion #7:

No, the consent of the GAL must be obtained before communicating with Joey. This is consistent with the policy and purpose behind G.S. §71-586. See also RPC 61.

Inquiry #8:

Would the preceding opinions be different if a guardian ad litem were appointed pursuant to G.S. §1A-1, Rule 17, which provides for the appointment of a guardian ad litem for infants or incompetent persons who are parties in civil actions?

Opinion #8:

No, if the GAL has an attorney for the matter, opposing counsel may not communicate with the GAL or the minor without the consent of the attorney. Rule 7.4(1). Moreover, if the guardian ad litem is not represented by an attorney in the matter, RPC 61 still prohibits communications with the minor unless the consent of the guardian ad litem is obtained.