Can a lawyer in a case contact a guardian ad litem, the GAL's ward, or a represented person directly, without going through opposing counsel or the GAL?

Plain-English summary

Opinion E-89-14 answered three questions about communications involving guardians ad litem (GALs). First, whether a lawyer for a party or witness may communicate with a GAL in the proceeding without the knowledge or consent of the other counsel involved; the committee answered yes. Second, whether a lawyer for a party or witness may communicate with a GAL's ward without the knowledge or consent of the GAL; the committee answered no. Third, whether a GAL may communicate with a represented person in a proceeding without the knowledge or consent of that person's attorney; the committee answered no.

On the first question, the committee concluded it was not aware of any rule of conduct or other law prohibiting communications by counsel with a GAL, noting that guardians ad litem are not officials within the meaning of SCR 20:3.5. On the second and third questions, the committee concluded that communications by counsel with a GAL's ward, and communications by a GAL with a represented person, are both governed by SCR 20:4.2, the rule on communication with a person represented by counsel. The committee added that if, in particular circumstances, consent to a communication is unreasonably withheld, or if the presence of other counsel would be contrary to significant personal or judicial interests, counsel desiring to make the communication should petition the tribunal for an order resolving the matter, as suggested by the "authorized by law" language of SCR 20:4.2.

Currency note

This opinion was issued in 1989, before Wisconsin's July 1, 2007 adoption of the revised Rules of Professional Conduct for Attorneys (the state's Ethics 2000 update). 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 Treat this page as historical context, not current guidance.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 a party's lawyer contact a guardian ad litem directly?

A: Yes. The committee concluded that no rule of conduct or other law prohibits a lawyer for a party or witness from communicating with a GAL, because GALs are not officials within SCR 20:3.5.

Q: Can a lawyer contact the GAL's ward without the GAL's consent?

A: No. The committee concluded that such communications are governed by SCR 20:4.2, so the GAL's consent (or another authorization) is required.

Q: Can a GAL contact a represented person without that person's lawyer's consent?

A: No. The committee concluded that this too is governed by SCR 20:4.2; if consent is unreasonably withheld, the GAL should petition the tribunal for an order.

Background and rules framework

The opinion interpreted SCR 20:4.2 / Model Rule 4.2 (communication with a person represented by counsel), applying it to contacts with a guardian ad litem's ward and to a GAL's contacts with represented persons, and SCR 20:3.5 / Model Rule 3.5 (impartiality and decorum of the tribunal), which it found did not treat GALs as officials.

Citations and references

Rules of Professional Conduct:

• Wis. SCR 20:4.2 / Model Rule 4.2 (communication with a represented person)
• Wis. SCR 20:3.5 / Model Rule 3.5 (impartiality of the tribunal)

See also

• WI Ethics Op. E-95-1: Contacting a Represented Agency
• WI Ethics Op. E-96-3: Prosecutor Contact via Agency
• WI Ethics Op. EF-23-02: Guardian ad Litem Conflicts

Source

• Landing page: https://www.wisbar.org/formembers/ethics/pages/formal-opinions.aspx
• Original PDF: https://www.wisbar.org/formembers/ethics/Ethics%20Opinions/E-89-14.pdf