Can a parent's lawyer in a custody case question the child without the consent of the child's court-appointed law guardian?

Plain-English summary

A lawyer for a parent in a custody dispute asked whether he could question the child directly when the court had appointed a law guardian for that child. The committee answered no, treating the question under DR 7-104(A)(1), the former Code's no-contact rule, which barred a lawyer from communicating about the subject of a representation with a party the lawyer knew to be represented, absent that party's counsel's consent.

The committee first held that a law guardian is the child's legal counsel for purposes of the rule. It read New York's Family Court Act (sections 241 and 242) as establishing law guardians as attorneys who serve as the child's counsel rather than as traditional guardians ad litem, so the relationship between child and law guardian is the client-attorney relationship the rule protects.

It then addressed whether the rule reaches a child who is not formally a "party" to the proceeding. The committee declined a narrow reading limited to caption-named parties, citing N.Y. State 463 (1977) and N.Y. State 650 (1993) for the proposition that the rule applies to represented persons, not only technical parties. It reasoned that the rule's central purpose, preventing a trained advocate from extracting admissions from an unrepresented lay person, applies with even greater force to a child. The committee noted that its conclusion aligned with opinions from Wisconsin, Arizona, North Carolina, and West Virginia reaching the same result for children represented by appointed counsel or guardians ad litem.

Finally, the committee stated that a parent's consent for the parent's own attorney to speak with the child is not pertinent; the rule requires the law guardian's consent before counsel for either parent may communicate with the child. The question was answered in the negative.

Currency note

This opinion was issued in 1993, under New York's former Code of Professional Responsibility, which New York replaced with the Rules of Professional Conduct in 2009. The no-contact provision discussed here (DR 7-104(A)(1)) now appears, in revised form, as Rule 4.2. 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 Treat this page as historical context, not current guidance.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: Is a child's law guardian treated as the child's lawyer for the no-contact rule?

A: Yes. The committee read the Family Court Act to make law guardians the child's counsel, so the client-attorney relationship the no-contact rule protects exists between the child and the law guardian.

Q: Does it matter that the child is not a named party to the custody case?

A: No. The committee applied the rule to represented persons generally, not only to caption-named parties, citing N.Y. State 463 (1977) and N.Y. State 650 (1993).

Q: Can the child's parent authorize the parent's lawyer to talk to the child?

A: No. The committee held the parent's consent is not pertinent; only the law guardian's consent permits either parent's counsel to communicate with the child.

Background and rules framework

The opinion interpreted DR 7-104(A)(1) of New York's former Code, which prohibited communicating about the subject of a representation with a party known to be represented by counsel, absent that counsel's consent or authorization by law. The committee noted that this provision is substantially identical to Model Rule 4.2. New York replaced the Code with the Rules of Professional Conduct in 2009; the provision cited here is historical.

Citations and references

Rules of Professional Conduct:

• MR 4.2 (communication with a represented person)
• NY DR 7-104(A)(1)

Cases:

• Bentley v. Bentley, 86 A.D.2d 926 (3d Dep't 1982): child's relationship to a law guardian is privileged
• Borkowski v. Borkowski, 90 Misc.2d 957 (Sup. Ct. 1977): a child in custody proceedings is a nonparty with an interest

Other opinions cited:

• N.Y. State 463 (1977): no-contact rule bars all communication with a represented person
• N.Y. State 650 (1993): rule applied where no formal proceeding made the client a "party"
• ABA 359 (1991): DR 7-104(A)(1) is substantially identical to Model Rule 4.2

See also

• NY State Bar Op. 663: Contacting an adverse party whose lawyer won't respond
• NY State Bar Op. 959: Contacting an adverse party whose lawyer withdrew
• NY State Bar Op. 735: Contacting an adverse party's independent contractors

Source

• Landing page: https://nysba.org/opinion-656/