Ethics Opinion 295

Restriction on Communications by a Lawyer Acting as Guardian Ad Litem in a Child Abuse and Neglect Proceeding

A lawyer appointed to act as a guardian ad litem in a child abuse and neglect proceeding in the District of Columbia represents the child and the best interests of the child. In the absence of a conflict between the two interests, the guardian ad litem is the child’s lawyer. Each of the child’s parents may be represented by separate counsel. Under DC Rule 4.2, the guardian ad litem may not communicate about the subject of the representation with either of the child’s parents without notification of and consent from the parent’s lawyer. The guardian ad litem may communicate directly with a represented parent if the sole purpose of the communication is to obtain information about how to contact the child or to schedule a meeting with the child. Such communication would be administrative in nature and would not be “about the subject of the representation.”

Applicable Rules

• Rule 3.5 (Impartiality and Decorum of the Tribunal)
• Rule 4.2 (Communication Between Lawyer and Opposing Parties)
• Rule 8.4(a) (Misconduct)

Inquiry

The inquirer seeks advice about whether a lawyer appointed to act as guardian ad litem in a child abuse and neglect proceeding may communicate with a parent of the child she represents, who is represented by counsel, without permission from the parent’s lawyer. The inquiry posits that “Because of the nature of the work, it is sometimes very difficult to avoid all communications without prior attorney permission. . . . The attorneys who are appointed as Guardian Ad Litem are required to talk to the respondent and, . . . because of the respondents age or mental capacity, the GAL may have no alternative but to inquire of the parent or caretaker about the welfare of the respondent.”

The inquiry poses several hypotheticals for discussion, which are summarized below.

1. The GAL and the parent who is the alleged abuser have arrived early for the initial hearing. Counsel for that parent has not yet arrived. That parent is the only person present who knows the whereabouts of the child. The GAL wants to talk to the child before the initial hearing and wants to ask the parent for the child’s address and telephone number. May the GAL do so without waiting for parent’s counsel to arrive?

2. The social worker/probation officer/education advocate and opposing counsel, including the GAL, are in a meeting. During the meeting, is it permissible for the social worker to call the allegedly abusive parent and ask questions posed by the GAL without the knowledge or permission of the parent’s lawyer?

3. The respondent is a child under the age of six or is mentally incapacitated. The GAL wants to talk to the parent about the child’s progress or condition. The parent might give information to the GAL that would be detrimental to the parent. May the GAL talk to the parent to obtain information about the welfare of the child without the permission of the parent’s counsel?

4. The parent’s counsel wants to talk to the child with only the parent present. May the GAL insist on being present when the parent’s lawyer interviews the child?

Discussion

In the District of Columbia, allegations of child neglect are adjudicated in the Superior Court. The D.C. Code provides that

Superior Court shall in every case involving a neglected child which results in a judicial proceeding, . . . appoint a guardian ad litem who is an attorney to represent the child in the proceedings. The guardian ad litem shall in general be charged with the representation of the child’s best interest. D.C. Code section 16-2304(b)(3) (1999).

The parent(s) or guardian of the child also may be represented by counsel. The D.C. Court of Appeals explained that the child’s guardian ad litem occupies a dual role, as neutral fact-finder for the judge and as zealous advocate on behalf of the child’s best interests. S.S. v. D.M., 597 A.2d 870, 875 (1991). Both the statute and the case law make clear that, additional responsibilities notwithstanding, the GAL in neglect proceedings is the child’s lawyer.¹ As such, there is no question but that a lawyer acting as a guardian ad litem is bound to comply with the Rules of Professional Conduct.²

DC Rule 4.2(a) draws a relatively bright line on communications between lawyers and persons who are represented by counsel. The rule states:

During the course of representing a client, a lawyer shall not communicate or cause another to communicate about the subject of the representation with a party known to be represented by another lawyer in the matter, unless the lawyer has the prior consent of the lawyer representing such other party or is authorized by law to do so.

This committee has interpreted Rule 4.2 to impose a clear prohibition on communication by a lawyer with a represented party absent consent of that party’s counsel. The committee read the rule to apply to a lawyer representing himself in a proceeding in which the other party was represented by counsel, Opinion No. 258 (1995). We also found the rule to require consent of counsel before a lawyer contacted a represented opposing party about a part of a proceeding in which the opposing counsel was not representing his client. Opinion No. 263 (1996).

1. Communication with Represented Persons without Notice and Consent of Opposing Counsel

Once the role of the GAL (as lawyer for the child) is clarified, the answer to the main question posed in the first and third hypotheticals above is relatively straightforward. The parent who is alleged to have engaged in abuse or neglect is a party to the proceeding and is represented by counsel. Therefore the GAL may not communicate with that parent about the substance of the matter without the consent of the parent’s lawyer.³

The GAL has a dual role as advocate and as fact-finder, but the authorizing legislation gives no indication that a GAL is authorized by law to collect information from the child’s parent without the consent of the parent’s lawyer.

In interpreting Model Rule 4.2, the ABA Committee on Ethics and Professional Responsibility said that the purpose of the rule is to

provide protection of the represented person against overreaching by adverse counsel, safeguard the client-lawyer relationship from interference by adverse counsel, and reduce the likelihood that clients will disclose privileged or other information that might harm their interests. ABA Formal Op. 95-396 (1995).

The fact that the client is a child does not excuse a GAL from respecting the rights of other parties as required by the rule. The child’s parent may be at risk of termination of parental rights because of child abuse and neglect. That parent is entitled to the protection afforded by legal representation. The boundary set by the rule may be inconvenient or cumbersome, but it is a boundary nevertheless.

The parent not charged with abuse or neglect also may be represented by counsel. That parent may not be a “party” to the proceeding, but although Rule 4.2(a) is worded to refer to a party represented by counsel, comment [4] states: “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.” So under Rule 4.2, the GAL may not communicate with any parent or guardian who is represented by counsel about anything relating to the child abuse and neglect proceeding without the consent of that person’s lawyer.

2. Communication about Scheduling or Administrative Matters

The first hypothetical posed in the inquiry posits a situation in which the GAL wishes to speak to the child’s parent merely to obtain information about how to contact the child. While Rule 4.2 states no exception for contact limited to purely administrative or ministerial questions, such contact would not thwart the purpose of the rule, because the parent is not being asked for information about which advice of counsel might be sought. As counsel for the child, the GAL must be entitled to information about the whereabouts of the child.

The comments to Rule 4.2 do not address this ministerial information question directly, but they do interpret the rule to allow direct contact to obtain non-substantive information from an organization. Comment [5] states:

This Rule does not apply to the situation in which a lawyer contacts employees of an organization for the purpose of obtaining information generally available to the public, or obtainable under the Freedom of Information Act, even if the information in question is related to the representation. For example, a lawyer for a plaintiff who has filed suit against an organization represented by a lawyer may telephone the organization to request a copy of a press release regarding the representation, without disclosing the lawyers identity, obtaining the consent of the organization’s lawyer, or otherwise acting as paragraphs (a) and (b) of this Rule require.

The comments to Rule 4.2 also provide that a lawyer may communicate with another party about matters outside the representation. While a request for information about the location of the child is not unrelated to the representation, neither is it a request for information relating to the substance of the representation.

The rules prohibiting ex parte communication with judges offer useful guidance here. The 1990 Model Code of Judicial Conduct, Canon 3B(7)(a) permits ex parte communications for “scheduling, administrative purposes or emergencies that do not deal with substantive matters or issues on the merits. . . .”⁴ DC Rule 3.5(b), like the Model Rule, says “A lawyer shall not . . . communicate ex parte with a [judge] except as permitted by law.” This rule does not articulate the “administrative matters exception explicitly, but is widely understood not to prohibit communication relating to administrative or “scheduling matters.” The rule against ex parte communications, like Rule 4.2, is intended to ensure that both lawyers in a case have the opportunity to participate in discussion of matters of substance relating to the case. But a lawyer who contacts a judge’s chambers to get an address or to find out a filing deadline does not violate the rule.

We conclude that a GAL may contact a child’s parent to get contact information, to schedule a meeting with the child, or for other administrative purposes. To read the rule otherwise would add needless burdens to the already difficult task of representing a child in an abuse and neglect proceeding.

3. Communication Through a Third Party

If the GAL may not talk to the parents on any matters of substance without permission from their lawyers, may the GAL relay questions to a parent through a social worker without permission? Again, the answer is clearly “no.” Rule 4.2 states: “During the course of representation of a client, a lawyer shall not communicate or cause another to communicate about the subject of the representation with a party known to be represented by counsel” absent consent of the lawyer for the other party or other legal authority. Rule 8.4 states: "It is professional misconduct for a lawyer to: (a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another.” A GAL may not use a social worker or any other third party as a go-between to circumvent Rule 4.2.

If a social worker called a parent during a meeting to ask questions that the social worker needed to get answered, Rule 4.2(a) would not apply. In such circumstances, the lawyer might learn information that she would not be entitled to seek directly from the parent without the consent of the parent’s counsel. Child neglect proceedings are intended to be less adversarial and to involve more sharing of information than most proceedings that involve only adults. Rule 4.2 does not prohibit a lawyer from learning information through that process, only from “communicat[ing] or caus[ing] another to communicate about the subject of the representation with a party known to be represented by another lawyer” without the consent of the other lawyer. A GAL must not initiate such an inquiry or direct another person to do so.

If during a meeting between a GAL and a social worker, the GAL poses questions and the social worker calls one of the child’s parents to ask the questions, the GAL has violated Rule 4.2 by doing through the acts of another something that the GAL is prohibited from doing. It is no solution to this problem for the lawyer and the social worker to agree that the lawyer’s questions are really the social worker’s questions. In fact if the social worker calls a parent during the meeting to ask a question raised by the lawyer at the meeting and reports the conversation to the GAL, Rule 4.2 has been evaded. See ABA Comm. on Ethics and Professional Responsibility, Formal Op. 95-396 (1995) (stating that a lawyer would be responsible for ex parte contacts made by an investigator under her supervision if she had not made reasonable efforts to prevent the contacts, if she had directed the investigator to make them, or if she knew that the investigator was going to make the contacts and failed to instruct him not to do so).

4. Communication with Parents about Very Young or Mentally Disabled Children

The inquiry asks whether the barrier to direct contact with a parent is lower if the client is very young or is mentally incapacitated. Again the answer is no, except for contact for administrative or scheduling purposes. The GAL may not be able to communicate directly with a young or mentally disabled child, and might need to get information through the parent. It may be frustrating that another barrier is added to this one—that the GAL may not contact the parent but must first contact the parent’s lawyer. Still, the parent is represented by counsel and is entitled to have the GAL contact the parent’s lawyer before contacting the parent.

5. Communication with the Child by Opposing Counsel

Another question is whether the parent’s lawyer may interview the child without the GAL being present. The answer is still no, unless the parent’s lawyer contacts the GAL to ask permission to interview the child without the GAL being present, and the GAL decides to allow this interview to take place. If the GAL says no, the parent’s lawyer must not communicate with the child except in the presence of or through the GAL. Rule 4.2 applies equally to protect child clients and adult clients. See South Carolina Advisory Opinion 97-15 (December 1997) (concluding that 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 a child in a child abuse proceeding); North Carolina Ethics Opinion RPC 249 (April 3, 1997) (concluding that a lawyer representing a parent in a child abuse proceeding may not communicate with a child who is represented by a GAL and an attorney advocate unless the lawyer obtains the consent of the attorney advocate); New York Ethics Opinion 656 (1993) (concluding that a parent’s attorney in a child custody proceeding may not communicate with a child for whom the court has appointed a law guardian without the law guardian’s consent).

Child abuse and neglect proceedings involve multiple parties, often multiple lawyers, and some non-lawyer participants. Each parent may have a separate lawyer. Another lawyer represents the government. There may be a social worker, a probation officer, or an education advocate. In addition to the multiplicity of parties, child abuse and neglect matters involve both formal hearings and informal meetings. The barrier imposed by Rule 4.2 may produce a cost in terms of loss of informality and sometimes loss of access to direct communication.

A more worrisome problem is that a GAL might ask a parent’s lawyer for permission to talk to the parent, and consent might be denied, or the parent’s lawyer might not respond to the request. This committee addressed this problem as it relates to a lawyer representing a client in a civil protection order proceeding in Opinion No. 263 (1996). The committee stated that a lawyer may not

use 4.2(a) . . . to prevent any . . . communications between the petitioner’s lawyer and the respondent. The petitioners lawyer needs to be able to communicate in some way with the respondent . . . be it directly or through counsel. . . . If the respondent’s lawyer refuses to allow such communication with the respondent directly, then the lawyer must accept communication from the petitioner’s lawyer and take appropriate steps in response, such as transmitting the information to his client and acting on his clients wishes. . . . To fail to do so would, in our opinion, constitute a violation of Rule 1.4 (requiring a lawyer to keep his client informed about the status of a matter).

The same point might be made here; that while Rule 4.2 imposes a barrier on one lawyer, Rule 1.4 imposes a duty on the other lawyer to communicate promptly with his client a request for contact by the child’s lawyer. Also Rule 4.4 says that “a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person…” The comment to rule 4.4 states that although the interests of others are subordinate to those of the client, the responsibility to a client “does not imply that a lawyer may disregard the rights of third persons.” This point is particularly critical in neglect proceedings, where in some cases (e.g., if the client is very young) the GAL cannot get any information about her client except from a represented party. In every case, the GAL has an affirmative duty to talk to all of those who have information relevant to the determination of the child’s best interests. The parents’ lawyer’s diligence in responding to requests for consent is essential to the functioning of the process. Lawyers for parents in neglect proceedings should be conscientious in responding to requests from GAL’s to communicate with the parents of the children they represent.

Inquiry No. 99-1-4
Adopted: February 15, 2000

1. The one exception to the assertion that the GAL is the child’s lawyer is if there is a conflict between the child’s preferences and the child’s best interests. In the absence of a conflict, the GAL can represent both the child and her best interests. If there is a conflict, then the GAL should represent the child’s best interests and should ask the court to appoint another lawyer for the child. In re L.H., 634 A.2d 1230 (1993). In this opinion, we address the obligations of a GAL whose responsibilities include acting as a child’s lawyer.
2. See S.S. v. D.M., 597 A.2d 870, 877 (1991) (discussing the application of Rule 3.7 to a GAL); Opinion No. 252 (1995) (addressing the obligations of a lawyer appointed as a guardian ad litem in a child abuse and neglect proceeding with respect to potential tort claims of the child).
3. The appointment of lawyer GAL’s for children in neglect proceedings is authorized by D.C. Code section 16-2304(a) (1999) and by D.C. SCR-Neglect Rule 27 (1999). Neither lays out specific powers or duties of the guardian at litem. The duties are spelled out in a set of informal guidelines issued by the Superior Court called “Practice Standards for Attorneys in Neglect Cases in the District of Columbia Superior Court”. These standards describe the GAL’s duties as counsel for the child, explain what the GAL should do in the case of a conflict between the child’s wishes and the GAL’s view of the child’s best interests, and describes the GAL’s fact-finding duties. These include obligations to interview the client and “all significant persons who have information about the family” including the child’s parents. In the absence of an explicit statement that the GAL may conduct these interviews without the consent of the other parties’ counsel, the guidelines cannot be found to exempt GAL’s from compliance with Rule. 4.2.
4. The ABA Model Code of Judicial Conduct has not been adopted by the District of Columbia Court of Appeals, but is referred to as guidance in the D.C. Rules of Professional Conduct, Rule 3.5, comment [1].