In a child abuse or neglect case, may the parents' lawyer arrange a medical or psychological exam of the children, who are represented by a court-appointed guardian ad litem, without the guardian's consent?

Plain-English summary

The inquiry arose from an abuse or neglect petition filed against parents under W. Va. Code § 49-6-1. Attorney X represented the parents; by separate order the court appointed Lawyer Y to represent the three children, who remained with their parents pending a preliminary hearing. Attorney X wanted to present medical, psychological, and psychiatric evidence that the children were not neglected or abused, and asked whether he could arrange for psychological examination and testing of the children and whether he had a duty to notify Lawyer Y, the children's lawyer, of the proposed examinations.

The Committee analyzed the question under the anti-contact rule, DR 7-104(A)(1), which bars a lawyer from communicating, or causing another to communicate, with a party the lawyer knows is represented by counsel without that counsel's consent, together with DR 1-102(A)(2) (a lawyer may not circumvent a rule through the acts of another) and DR 1-102(A)(5) (no conduct prejudicial to the administration of justice). It read those rules against the child-welfare statutes: W. Va. Code § 49-6-1 authorizes appointment of counsel and gives the children a right to counsel, § 49-6-2(a) reflects a policy that the child's attorney be loyal only to the child and that the same attorney never represent both the child and another party, and § 49-6-4 provides for the kind of examination the inquiring attorney proposed.

The Committee concluded that the proposed examination would be "communication on the subject of the representation with a party," because its purpose was to create evidence the parents would use against the petition, and that it was no more acceptable if the lawyer simply stepped out and had the parents organize the interviews. It explained that the guardian ad litem is, in effect, the child's alter ego during the proceedings, appointed because the child cannot protect his own interests, and that the choice of examiner and the handling of reports could shape the outcome, so the guardian should be involved and aware of any examination in advance of the hearing.

The Committee held that a lawyer representing parents in neglect or abuse proceedings may not directly or indirectly arrange for a medical examination of the children who are the subject of the proceedings without first obtaining the permission of the lawyer appointed as the children's guardian ad litem. The opinion closed with a note that the facts and subject matter were confidential by rule of the West Virginia Supreme Court of Appeals.

Currency note

This opinion was issued in 1983, before West Virginia replaced its Code of Professional Responsibility (the DR provisions cited here) with the Rules of Professional Conduct, effective January 1, 1989, and before later rule revisions, including the comprehensive 2015 amendments. The child-welfare statutes cited here have also been amended and renumbered over time. 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 parents' lawyer set up a psychological or medical exam of the children without telling the children's guardian ad litem?

A: No. The opinion held that the parents' lawyer may not directly or indirectly arrange an examination of the children who are the subject of the proceeding without first obtaining the permission of the lawyer appointed as their guardian ad litem.

Q: Why did the Committee treat arranging an exam as a "communication" with a represented party?

A: The opinion reasoned that the examination's purpose was to create evidence the parents would use against the abuse or neglect petition, so it amounted to communication on the subject of the representation with the children, who were represented by their own appointed counsel, and was barred by DR 7-104(A)(1).

Q: Did it matter that the parents, rather than the lawyer, would set up the interviews?

A: No. The opinion stated that the action was no more acceptable if the lawyer simply stepped out of the process and directed the parents to organize the interviews, because DR 1-102(A)(2) bars circumventing a rule through the acts of another.

Background and rules framework

The opinion applied the Code of Professional Responsibility's anti-contact rule, DR 7-104(A)(1), which forbids communicating with a represented party without that party's counsel's consent, reinforced by DR 1-102(A)(2) and (A)(5). It treated the court-appointed guardian ad litem as the children's counsel and read the rules together with the West Virginia child-welfare statutes (W. Va. Code Chapter 49, Article 6) governing appointment of counsel for children and examinations in neglect or abuse cases.

Citations and references

Rules of Professional Conduct (Code of Professional Responsibility, as cited):

• DR 7-104(A)(1) (no communication with a represented party without the consent of that party's lawyer)
• DR 1-102(A)(2) (a lawyer shall not circumvent a disciplinary rule through the acts of another)
• DR 1-102(A)(5) (no conduct prejudicial to the administration of justice)

Statutes:

• W. Va. Code § 49-6-1 (filing of neglect or abuse petition; appointment of and right to counsel)
• W. Va. Code § 49-6-2(a) (child's counsel loyal only to the child; same attorney may not represent both child and another party)
• W. Va. Code § 49-6-3 (hearing requirement)
• W. Va. Code § 49-6-4 (examination of children in neglect or abuse proceedings)

See also

• WVSB Ethics Op. 87-01: Contacting employees of an adverse corporation
• WVSB Ethics Op. 88-02: Outside-practice limits for child advocates
• WVSB Ethics Op. 85-3: Attorney interference with service of process

Source

• Landing page: https://wvodc.org/Legal-Ethics-Opinion
• Original PDF: https://storage.googleapis.com/msgsndr/Rgd68xOkcVdteTsBkf6O/media/66a7ea7e8f6655f8955ace4f.pdf

Original opinion text

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

L.E.I. 83-9

(October 21, 1983)

DUTY OF A PARENT'S LAWYER TO NOTIFY A GUARDIAN AD LITEM IN NEGLECT OR ABUSE PROCEEDINGS

The following inquiry has been presented to the Committee for its advisory opinion:

A petition has been filed with the Department of Human Services, pursuant to W. Va. Code § 49-6-1, alleging that three infant children are believed to be neglected or abused. Attorney X was employed to represent the parents of the children. Temporary custody of the children has been vested in the Department of Human Services pursuant to W. Va. Code § 49-6-3, but the children were allowed to continue to reside with their parents until a preliminary hearing could be conducted. By separate order, the court appointed Lawyer Y to represent the three children and Lawyer Y continues to represent the children. Lawyer X now wishes to present medical, psychological and psychiatric evidence to support his clients' position that their children are not neglected or abused. Lawyer X inquires as to whether or not he may arrange for psychological examination and testing of the children and, further, whether he has a duty to advise Attorney Y of the proposed action of the parents in arranging for medical examination of the children.

Provisions in the Code of Professional Responsibility of The West Virginia State Bar which must be considered are DR 1-102(A)(2), (5) and DR 7-104(A)(1). DR 1-102(A)(2) requires that a lawyer may not circumvent a disciplinary rule through the actions of another. DR 1-102(A)(5) indicates that a lawyer should not engage in conduct that is prejudicial to the administration of justice. DR 7-104(A)(1) indicates that in the representation of a client, a lawyer shall not communicate or cause another to communicate on the subject of the representation with a party he knows to be represented by a lawyer unless he has the prior consent of the lawyer or is otherwise authorized by law to do so. West Virginia Code § 49-6-1(a) provides that upon the filing of a petition alleging neglect or abuse the court is authorized to appoint counsel. Subsection (b) of that same statute clarifies that the children involved in neglect and abuse proceedings have a right to counsel. A reading of W. Va. Code § 49-6-2(a) seems to indicate a legislative policy that the attorney representing the child should be loyal to only the child and "Under no circumstances may the same attorney represent both the child and the other party or parties . . ." It is also noted that W. Va. Code § 49-6-4 provides for just the type of examination which the inquiring attorney wishes to be made of his clients' children.

The Committee is aware that public policy generally favors location and use of all available evidence in matters of importance, particularly when difficult decisions regarding the welfare of children are involved.

Of course, the overall policy behind DR 7-104 of the West Virginia Code of Professional Responsibility is that lawyers representing adverse parties should not be allowed to influence improperly parties to litigation to the extent that they might obtain admissions or injurious information from those parties or information which such party might not be willing to give if provided with the advice of counsel. It is the view of the Committee that the proposed examination procedure would constitute "communication on the subject of the representation with a party." It is obvious that the purpose of the communication is to create evidence which Attorney X's clients will use in the hearing on the neglect or abuse petition. The action is made no more acceptable if the lawyer simply steps out of the process and directs the parents to organize such an interview with physicians.

It should be observed that the wisdom of DR 7-104(A)(1) is illustrated in the present inquiry in both a general and a very specific sense. First, the person appointed as counsel for the child generally is an alter ego for the child during the period of the neglect and abuse proceedings. It is assumed that the child cannot exercise appropriate judgment with regard to his own interests in the matter and that those interests must be protected without undue influence from others. For this reason, the court appoints a lawyer to look after the full range of interests and activities of the child during the litigation. The wisdom of the "no contact" rule is illustrated by the practical questions which exist concerning the manner of the proposed psychological and medical examination. The selection of the particular psychologist to perform the interviews proposed could, practically speaking, directly result in a more or less favorable interpretation of the childrens' statements concerning their parents and their homes. The distribution and review of reports with regard to the medical interview also would be much more objective and fair should the childrens' guardian ad litem be involved in the proceeding and aware of the medical examination in advance of the hearing required by W. Va. Code § 49-6-3.

In light of the above considerations, it is clear that the lawyer appointed to represent the interests of the child cannot do an adequate job for that child unless allowed to review the qualifications and possible bias of the physician selected to perform the proposed medical testing and is also allowed to receive and carefully evaluate the test results in advance of any hearing. Based upon its understanding of the statutes and disciplinary rules applicable to the inquiry presented, it is the opinion of the Committee that a lawyer representing parents in neglect and abuse proceedings may not directly or indirectly arrange for medical examination of children who are the subject of the proceedings without first obtaining the permission of the lawyer appointed guardian ad litem of those children.

NOTE: The facts and subject matter contained in this letter are confidential by rule of the West Virginia Supreme Court of Appeals.