In a child-abuse case, can a parent's lawyer talk to the minor child who comes in wanting to recant, when the child has a guardian ad litem but no separate lawyer?

Plain-English summary

In a family court child-abuse proceeding, each parent had a lawyer, the children had a guardian ad litem, and the guardian had a lawyer, but the children had no lawyer of their own. A teenage child went to a parent's lawyer's office wanting to recant her earlier statement against her parents. The lawyer asked whether he could talk to the child, whether he had to notify the guardian's, parents', or state's counsel first, and whether the guardian had to be present.

The committee concluded the child must be considered represented. Rule 4.2 bars communicating about the subject of the representation with a party the lawyer knows to be represented by another lawyer absent that lawyer's consent or legal authorization. Although the child was not directly represented by counsel, the court had appointed a guardian ad litem (who was represented by counsel) to represent the child's interests, and the Children's Code (S.C. Code Ann. § 20-7-110(1)) requires that children in abuse and neglect proceedings be appointed counsel, which apparently had not occurred here. The committee found a mechanical reading of Rule 4.2 that would let the parent's lawyer freely talk to the child disingenuous.

Relying on South Carolina case law describing the guardian ad litem as a court-appointed representative protecting the interests of an incompetent person, the committee concluded the child's interests were represented by counsel through the guardian, so direct communication would violate Rule 4.2. It added, citing ABA Formal Opinion 95-396, that this no-contact protection cannot be waived by the child initiating the contact. The committee concluded the parent's lawyer must, at a minimum, notify the guardian ad litem and the guardian's counsel and obtain consent before communicating with the child.

Currency note

This opinion was issued in 1997, before the South Carolina Bar's adoption of the 2005 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 Treat this page as historical context, not current guidance.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: Could the parent's lawyer talk to the child who wanted to recant?

A: Not without consent. The committee concluded the child was represented through the guardian ad litem, so Rule 4.2 required the lawyer to notify and obtain the consent of the guardian and the guardian's counsel first.

Q: The child had no lawyer of her own, so does Rule 4.2 apply?

A: The committee concluded it does. It treated a mechanical reading allowing free contact as disingenuous and held the child's interests were represented by counsel through the guardian ad litem, with the Children's Code also requiring counsel for the child.

Q: Could the child waive the protection by coming in voluntarily?

A: No. The committee stated, citing ABA Formal Opinion 95-396, that the no-contact protection cannot be waived by the child initiating the contact.

Background and rules framework

The opinion applied Rule 4.2 (communication with a person represented by counsel), corresponding to the like-numbered Model Rule, reading the child's representation through the court-appointed guardian ad litem and the guardian's counsel. The committee relied on the South Carolina Children's Code (S.C. Code Ann. § 20-7-110(1)) and state case law defining the guardian ad litem's role.

Citations and references

Rules of Professional Conduct:

• South Carolina RPC 4.2 / Model Rule 4.2: communication with a person represented by counsel.

Statutes:

• S.C. Code Ann. § 20-7-110(1) (1996 Cum. Supp.): appointment of counsel and a guardian ad litem for children in abuse and neglect proceedings.

Cases:

• Shainwald v. Shainwald, 395 S.E.2d 441 (S.C. Ct. App. 1990): the guardian ad litem as a court-appointed representative.
• Fleming v. Asbill, 483 S.E.2d 751 (S.C. 1997): the duties of a guardian ad litem.

Other opinions cited:

• ABA Formal Opinion 95-396: the no-contact rule cannot be waived by the represented person.

See also

• SC Bar Ethics Op. 97-07: Giving a Second Opinion
• SC Bar Ethics Op. 97-16: Divorce After Representing the Husband

Source

• Landing page: https://www.scbar.org/for-lawyers/quicklinks/legal-resources/ethics-advisory-opinions/ethics-advisory-opinion-97-15/

Original opinion text

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

UPON THE REQUEST OF A MEMBER OF THE SOUTH CAROLINA BAR, THE ETHICS ADVISORY COMMITTEE HAS RENDERED THIS OPINION ON THE ETHICAL PROPRIETY OF THE INQUIRER’S CONTEMPLATED CONDUCT. THIS COMMITTEE HAS NO DISCIPLINARY AUTHORITY. LAWYER DISCIPLINE IS ADMINISTERED SOLELY BY THE SOUTH CAROLINA SUPREME COURT THROUGH ITS COMMISSION ON LAWYER CONDUCT.

Ethics Advisory Opinion 97-15

There is a family court child abuse investigation/court proceeding involving allegations that parents abused their minor children. Each parent has a lawyer, the children have a guardian ad litem, and the children's guardian ad litem has a lawyer. The children do not have a lawyer. One of the minor children, a teenager, goes to the office of parent's lawyer and wants to give a statement recanting her earlier statement against her parents.

QUESTIONS:
(1) Can the lawyer talk to the child?
(2) If so, before he talks to the child, does he have to notify counsel for either the guardian ad litem, the parents, or the state handling the matter in family court?
(3) Does he have to have the guardian ad litem present when he talks to the child?

SUMMARY:
Under Rule 4.2, parent's lawyer must notify the guardian ad litem and her or his counsel and gain consent prior to communicating with the child.

OPINION:
Rule of Professional Conduct 4.2 states:

In representing a client, a lawyer shall not 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.

In the instant inquiry, the child at issue is not directly represented by counsel. The court, however, has appointed a guardian ad litem to represent the interests of the child. That guardian is represented by counsel.

Section 20-7-110(1) of the Children's Code provides that in all child abuse and neglect proceedings, "Children must be appointed legal counsel and a guardian ad litem by the family court. Counsel for the child in no case may be the same as counsel for the parent, guardian, or other person subject to the proceeding or any governmental or social agency involved in the proceeding." SC Code Ann. Section 20-7-110(1) (1996 Cum. Supp.). It appears from the facts set forth in the inquiry that the family court has not appointed the children with separate counsel as required by the Children's Code.

A mechanical application of Rule of Professional Conduct 4.2 would result in parent's lawyer freely communicating with child without violating the Rule. Such an application is, however, disingenuous. It is the opinion of the Committee that the child in this scenario must be considered to be represented by counsel, and any direct communication would violate Rule 4.2.

"A guardian ad litem is a representative of the court appointed to assist it in properly protecting the interest of an incompetent person." Shainwald v. Shainwald, 395 S.E.2d 441,444 (S.C. App, 1990). Further, "[t]he requirement that the children have independent legal representation....reflects the conviction that the children are best served by the presence of a vigorous advocate free to investigate, consult with them at length, marshall evidence, and to subpoena and cross-examine witnesses." Id. Simply put, "the duty of a guardian ad litem or next friend is to look after the infant's interest and to act for him in all matters relating to the suit as he might act for himself if he were of capacity to so do." Fleming v. Asbill, 483 S.E.2d 751,754 (S.C. 1997) (citations omitted).

The child in this inquiry does not have the legal capacity to represent itself. The guardian has been appointed to represent the interests of the child in the family court proceeding. Because the interests of the child are represented by counsel (through the guardian ad litem), and the Children's Code also requires that independent counsel be appointed to the child, parent's lawyer would violate Rule 4.2 in communicating with child. Notably, this prohibition against contact without notification and consent of counsel cannot be waived by the child in initiating the contact. See ABA Formal Opinion 95-396 at Part VII.

It is the opinion of this Committee that parent's lawyer must, at a minimum, notify the guardian ad litem and the guardian's counsel and gain consent prior to communicating with child.