In a custody dispute, can a parent's lawyer meet with the minor children without the guardian ad litem's permission?

Plain-English summary

The committee was asked whether, in a custody dispute, counsel for either parent could meet with the minor children without first obtaining the guardian ad litem's permission. The controlling rules were DR 7-103(A)(2) (a lawyer may not advise an unrepresented person whose interests may conflict with the client's, other than to secure counsel), DR 7-103(B) (a lawyer may not state or imply that he is disinterested and must correct any such misunderstanding), and DR 7-101(C)(5) (no intentional or habitual violation of an established rule of procedure or evidence that disrupts proceedings).

The committee reasoned that the rule on contacting a represented opposing party did not apply, because a minor child is not a "party" to the parents' divorce action, even though the child's interests are paramount in a related custody dispute. It therefore concluded that it would not be improper for a parent's counsel to meet with the minor children without the guardian ad litem's permission (citing LE Op. 1409).

The committee urged caution to keep within DR 7-103(A)(2), DR 7-103(B), and DR 7-101(C)(5): a parent's counsel may not give the children advice other than to seek counsel, may not state or imply disinterest, and must abide by any court rules governing the guardian ad litem's role in protecting the children, including rules that preclude contact (citing LE Op. 1344).

Currency note

The Virginia State Bar withdrew this opinion on December 9, 2009, as reflected on the official source. It was issued in 1993, under Virginia's former Code of Professional Responsibility, before the Virginia State Bar's adoption of the Rules of Professional Conduct effective January 1, 2000. The reasoning has since been superseded: as the opinion's committee notes record, current Rule 4.2 bars ex parte contacts with "persons" rather than "parties," which is the distinction this opinion relied on. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule or requirement mentioned here.

Common questions

Q: Could a parent's lawyer meet with the minor children without the guardian ad litem's permission?

A: Under this 1993 opinion (since withdrawn), yes. The committee concluded that because a minor child is not a "party" to the parents' divorce, the rule against contacting a represented party did not apply.

Q: What limits did the committee place on such a meeting?

A: The committee said counsel could not advise the children other than to seek counsel, could not state or imply that counsel was disinterested, and had to follow any court rules on the guardian ad litem's role, including rules barring contact.

Q: Why was this opinion withdrawn?

A: The committee notes explain that current Rule 4.2 bars ex parte contacts with "persons" rather than "parties," superseding the party/nonparty distinction this opinion relied on; the bar withdrew the opinion on December 9, 2009.

Background and rules framework

The opinion interpreted former Virginia DR 7-103(A)(2) (advising unrepresented persons), DR 7-103(B) (not implying disinterest), and DR 7-101(C)(5) (not disrupting proceedings). Those concerns now correspond to ABA Model Rule 4.2 (communication with represented persons, which Virginia frames in terms of "persons") and Model Rule 4.3 (dealing with unrepresented persons).

Citations and references

Rules of Professional Conduct:

• Former Virginia DR 7-103(A)(2); DR 7-103(B); DR 7-101(C)(5) (Code of Professional Responsibility)
• ABA Model Rule 4.2 (communication with represented persons); Model Rule 4.3 (unrepresented persons)

Other opinions cited:

• Virginia LE Op. 1409: a minor child is not a "party" for purposes of the no-contact rule.
• Virginia LE Op. 1344: cautions on dealing with unrepresented persons.

See also

• VA LEO 1589: Claiming to Represent a Former Employee
• VA LEO 1820: Railroad Claims Lawyers and Rule 4.2
• VA LEO 1670: Contacting a Former Employee

Source

• Landing page: https://vsb.org/Site/about/rules-regulations/leo-opinions.aspx
• Original PDF: https://www.vsb.org/common/Uploaded%20files/LEOs/1553.pdf

Original opinion text

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

Committee Opinion
October 20, 1993
Committee Withdrew Opinion
December 9, 2009
WITHDRAWN – December 9, 2009
LEGAL ETHICS OPINION 1553

COMMUNICATION WITH ADVERSE
PARTIES: PARENT'S COUNSEL IN
CUSTODY DISPUTE MEETING WITH
MINOR CHILD.

You have asked the committee to opine whether it is permissible, in a custody dispute,
for counsel for either parent to meet with minor children without first obtaining
permission from the guardian ad litem.
The appropriate and controlling disciplinary rules relative to your inquiry are DR:7103(A)(2) which states that, during the course of his representation, a lawyer shall not
give advice to a person who is not represented by a lawyer, other than the advice to
secure counsel, if the interests of such person are or have a reasonable possibility of being
in conflict with the interests of the client; DR:7-103(B) which provides that, in dealing
with a person who is not represented by counsel, a lawyer shall not state or imply that the
lawyer is disinterested and that a lawyer shall make reasonable efforts to correct a
misunderstanding that the lawyer is disinterested; and DR:7-101(C)(5) which prohibits a
lawyer from intentionally or habitually violating any established rule of procedure or of
evidence where such conduct is disruptive of the proceedings.
The committee is of the view that the provisions regarding an attorney's direct
communication with a represented opposing party is inapplicable to the question you
have raised since a minor child is not a "party" to his parents' divorce action despite the
obvious fact that the child's interests are paramount in a custody dispute related to the
divorce action. Thus, the committee opines that it would not be improper for a parent's
counsel to meet with minor children without the permission of the guardian ad litem. See
LE Op. 1409.
However, the committee urges caution in the manner in which parent's counsel
proceeds in order to maintain compliance with the requirements of DR:7-103(A)(2),
DR:7-103(B) and DR:7-101(C)(5). Thus, parent's counsel may not give advice to the
minor children, other than the advice to seek counsel; may not state or imply that he is
disinterested in the matter; and must of course abide by any rules of court governing the
role of a guardian ad litem in protecting the interests of the minor children in the event
that such rules preclude contact with the children. See LE Op. 1344.
Committee Opinion
October 20, 1993
Committee Withdrew Opinion
December 9, 2009

Committee Opinion
October 20, 1993
Committee Withdrew Opinion
December 9, 2009
Legal Ethics Committee Notes. – Rule 4.2 prohibits ex parte contacts with “persons”
rather than “parties”.