When a court appoints a guardian ad litem for a child or protected person, can the other lawyers in the case contact that child or person directly, or must they go through the guardian ad litem?

Plain-English summary

In West Virginia, family court and circuit court judges appoint guardians ad litem to represent the interests of a child, or any person who is the subject of a proceeding, in custody, abuse and neglect, and divorce matters, among others; in many instances the appointment is mandatory. The Lawyer Disciplinary Board issued this opinion (originally numbered L.E.O. 2013-02 when published for public comment) to expand on its earlier inquiry L.E.I. 83-9, which had addressed in a limited way an attorney's duty to notify the guardian ad litem before arranging a medical or psychological examination of a child in an abuse and neglect case.

The Board states that once a court appoints a guardian ad litem, the guardian ad litem is both the alter ego and the attorney for the child or protected person. Because of that, Rule 4.2 of the Rules of Professional Conduct applies with the same force it would to any other represented party. Rule 4.2 provides that 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, absent that lawyer's consent or legal authorization, and the Board quotes the rule's comment that it covers any person, whether or not a party to a formal proceeding, who is represented by counsel concerning the matter. The Board notes the Supreme Court of Appeals has held that the Rules of Professional Conduct generally apply to a guardian ad litem's representation of a child, citing In re Christina W.

The opinion observes that the guardian ad litem's role is unique because the attorney is an adult who both acts as attorney and testifies as the child's alter ego, and that confusion often arises because children are frequently not formal parties and because parents who hold custody and control may assume they can act for the child's attorney without notifying the guardian ad litem. The Board concludes that all lawyers are on notice that, in any case involving a child or protected person represented by counsel, all matters about the subject of the representation must be communicated through that child's or protected person's lawyer. The Board declines to enumerate every way the issue might arise, stating that situations of contact with a represented child should be evaluated against Rule 4.2's clear mandate.

In practice

Under this opinion, the conduct addressed (directly contacting a child or protected person who has a court-appointed guardian ad litem, about the subject of the representation) is treated the same as contacting any other represented party: it is barred by Rule 4.2 unless the guardian ad litem consents or the contact is authorized by law. The opinion holds that the analysis turns on the guardian ad litem's status as the child's or protected person's attorney; once appointed, communications about the matter go through the guardian ad litem.

The opinion is deliberately general. The Board states it will not attempt to enumerate all the ways the issue might arise and instead directs that contact with a represented child about the subject matter be evaluated in light of Rule 4.2's mandate that a lawyer not communicate directly with another person, adult or child, about matters on which that party is represented by counsel.

Common questions

Q: Can a parent's lawyer talk directly to the child in a custody or abuse-and-neglect case?

A: Not about the subject of the representation, if the child has a guardian ad litem. The opinion concludes the guardian ad litem is the child's attorney, so Rule 4.2 bars direct contact about the matter without the guardian ad litem's consent.

Q: Does it matter that the child is not technically a "party" to the proceeding?

A: No. The opinion quotes the comment to Rule 4.2 that the rule covers any person, whether or not a party to a formal proceeding, who is represented by counsel concerning the matter, and notes children are often not parties yet are still represented by the guardian ad litem.

Q: Is a guardian ad litem treated as a real attorney for these purposes?

A: Yes. The opinion concludes a guardian ad litem is both alter ego and attorney for the child or protected person, and cites In re Christina W. for the holding that the Rules of Professional Conduct generally apply to a guardian ad litem's representation of a child.

Background and rules framework

The opinion interprets the West Virginia Rules of Professional Conduct, adopted by the Supreme Court of Appeals of West Virginia. The governing rule is Rule 4.2 (Model Rule 4.2), Communication With Person Represented by Counsel, which bars a lawyer from communicating about the subject of the representation with a party the lawyer knows to be represented by another lawyer, absent consent or legal authorization. The opinion relies on the rule's comment extending coverage to any person represented by counsel concerning the matter, whether or not a formal party. It builds on the Board's prior inquiry L.E.I. 83-9 and on Supreme Court of Appeals authority recognizing that the conduct rules apply to a guardian ad litem's representation.

Citations and references

Rules of Professional Conduct:

• Model Rule 4.2 / WV RPC 4.2 (communication with a person represented by counsel)

Cases:

• In re Christina W., 219 W.Va. 678, 639 S.E.2d 770 (W. Va. 2006), Syllabus Point 3, the Rules of Professional Conduct generally apply to a guardian ad litem's representation of a child
• State ex rel. Scott Ash v. Swope, 751 S.E.2d 751 (W. Va. 2013), Syllabus Point 2, because many aspects of a guardian ad litem's representation of an incarcerated person in a family court proceeding are duties a lawyer performs for a client, the rules of professional conduct generally apply to that representation

Other opinions cited:

• WV L.E.I. 83-9 (Oct. 21, 1983): Duty of Parent's Lawyer to Notify Guardian Ad Litem in Neglect or Abuse Proceedings

See also

• VA LEO 1861: A lawyer-bankruptcy trustee contacting a represented debtor
• WV LEO 2018-02: Conflicts when a prosecutor joins a public defender's office

Source

• Landing page: https://wvodc.org/Legal-Ethics-Opinion
• Original PDF: https://storage.googleapis.com/msgsndr/Rgd68xOkcVdteTsBkf6O/media/66a7ea7d4c67bca44d34b08c.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.

L.E.O. 2014-01[1]

THE DUTY OF COUNSEL TO TREAT ALL PERSONS REPRESENTED BY A GUARDIAN AD LITEM THE SAME AS ANY OTHER PERSON OR PARTY IN TERMS OF PROHIBITED DIRECT CONTACT

In varied and numerous types of proceedings in West Virginia, both family court judges and circuit court judges are vested with authority to appoint a guardian ad litem who is charged with representing the interests of a child or any person[2] who is the subject of the proceedings, or whose rights or responsibilities may be affected. This occurs in custody proceedings in family court, in abuse and neglect proceedings and divorce proceedings in circuit court, and otherwise. In many instances, the appointing of a guardian ad litem by the Court is a mandatory requirement set forth in Court rules or statutes.

A previous L.E.I. that was issued October 21, 1983 (LEI: 83-9 DUTY OF PARENT'S LAWYER TO NOTIFY GUARDIAN AD LITEM IN NEGLECT OR ABUSE PROCEEDINGS), addressed in a limited way the duties of an attorney representing a parent in an abuse and neglect proceeding with regard to contacting the guardian ad litem to set up medical examinations for the children. The question was answered definitively that an attorney for parents accused of abuse and neglect may not arrange for a medical or psychological examination without first notifying the guardian ad litem and seeking his or her approval and input.

This instant L.E.O. is written to expand upon L.E.I. 83-9 and state that a guardian ad litem is both alter ego and attorney for a child or protected person once appointed by a court. Rule 4.2 of the Rules of Professional Conduct states clearly:

"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 to do so by law."

This rule applies with the same vigor to children or protected persons and their attorneys (guardian ad litems). The comment to the rule removes any doubt:

"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."

Moreover, the Supreme Court of Appeals has held that the Rules of Professional Conduct generally apply to a guardian ad litem's representation of a child. See, Syllabus Point 3, In re Christina W., 639 S.E.2d 770, 219 W.Va. 678 (2006).

The role of a guardian ad litem is unique because the attorney is an adult speaking both as attorney and testifying as alter ego for the child. Often a guardian ad litem is appointed in proceedings where the parents are attacking each other and the guardian ad litem is considered "neutral". Children are often not "parties" to the proceedings at issue, leading to further confusion about appropriate roles and conduct. Similarly, parents or others who are parties with substantial and sometimes conflicting rights have custody and control over the child and think they are within their rights to do things for their own attorney without notifying the child's attorney (i.e. the guardian ad litem).

Given all of that, this L.E.O. should serve to put all attorneys on notice, in any case involving a child or protected person, where that child or protected person is represented by counsel, that all matters "about the subject of the representation" must be communicated through the child or protected person's lawyer. At the risk of limiting Rule 4.2, which is nonambiguous, this L.E.O. will not attempt to enumerate all of the various ways that this issue might arise. This L.E.O. does suggest that situations of contact with a child about a subject matter upon which a child is represented should all be evaluated in light of the clear mandate of Rule 4.2 that a lawyer shall not communicate directly with another person, adult or child, about matters upon which that party or individual is represented by counsel.

APPROVED by the Lawyer Disciplinary Board on the 17th day of January, 2014, and ENTERED this 23rd day of January, 2014.

John W. Cooper, Chairperson
Lawyer Disciplinary Board

[1] Formerly L.E.O. 2013-02 when draft was published for public comment.

[2] This would include persons who are incarcerated, or persons who are not competent and need the protection of the Court. In Syl. Pt. 2, State of West Virginia ex rel. Scott Ash, Prosecuting Attorney of Mercer County West Virginia v. The Honorable Derek C. Swope, Judge of the Circuit Court of Mercer County, West Virginia, and Chubby Hoston, ___ W.Va. ___, 751 S.E.2d 751 (2013), the Supreme Court held that "Because many aspects of a guardian ad litem's representation of an incarcerated person in a family court proceeding comprise duties that are performed by a lawyer on behalf of a client, the rules of professional conduct generally apply to that representation."