|
Opinion No. 252
Obligations of a Lawyer Appointed Guardian ad Litem in a Child Abuse
and Neglect Proceeding With Respect to Potential Tort Claims of the Child
A lawyer who is appointed guardian ad litem in a child abuse and neglect
proceeding does not have an obligation to initiate tort claims on behalf
of the child. If, however, the lawyer/guardian ad litem identifies significant
potential claims the child has against third parties, the lawyer is obligated
to notify the child or those responsible for the child’s care of the potential
claims. When necessary to preserve these claims, the lawyer also is obligated
to take reasonable steps to file notices that are required by statute.
A lawyer/guardian ad litem cannot enter into
a retainer agreement in a tort action on the child’s behalf or represent
the child after the retainer is signed unless a proper third party represents
the child’s interests in that case.
Applicable Rules
- Rule 1.2 (Scope of Representation)
- Rule 1.3 (Diligence and Zeal)
- Rule 1.4 (Communication)
- Rule 1.7 (Conflict of Interest)
- Rule 1.14 (Representing a Client With a Disability)
Inquiry
Inquirer seeks advice on the authority and obligations of a lawyer
appointed as guardian ad litem for a child in abuse and neglect proceedings
with respect to potential tort claims arising in connection with the child’s
placement. For example, inquirer asks whether the lawyer must (or may)
bring a claim for negligence on the child’s behalf for injuries sustained
from scalding water in a foster home in which the child has been placed
as a result of the neglect proceedings. Inquirer asks a number of subsidiary
questions relating to injuries to the child resulting from someone’s negligence.
Inquirer asks whether the guardian ad litem can
retain counsel, including herself or himself, and if so, whether approval
of the child’s parents must be sought and obtained. Inquirer also asks
whether the guardian ad litem has immunity for improperly pursuing or
failing to pursue a claim on behalf of the child.
Discussion
Inquirer presents questions of substantive law as well as questions
of legal ethics under the Rules of Professional Conduct. The Committee
only addresses the ethical questions, but must do so in the context of
the role and authority of the guardian ad litem in child abuse and neglect
proceedings in the District of Columbia.
Background: The Guardian ad Litem’s Role in Child Abuse and Neglect
Proceedings
The Superior Court has jurisdiction to adjudicate allegations of child
abuse and neglect. The court has authority to alter the custodial placement
of a child, terminate parental rights and take other actions designed
to protect a child’s well-being.
Where a child is alleged to have been abused
or neglected, and proceedings commence in Superior Court, the parent(s)
or other involved adults are represented by counsel. In addition, the
Court appoints “a guardian ad litem who is an attorney to represent
the child in the proceedings.” D.C. Code § 16-2304(b).1
See also Super. Ct. Neg. R. 27. The role of the guardian ad litem in neglect
proceedings has been subject to a great deal of discussion in the legal
literature.2
As the District of Columbia Court of Appeals has observed, “[t]he
definition of the precise roles of the attorney and the guardian ad litem
is still evolving and not without difficulty.” S.S. v. D.M., 597
A.2d 870, 877 (D.C. 1991) (footnote omitted). The Committee understands
that, in the absence of a conflict, in the District of Columbia, the guardian
ad litem acts as lawyer for the child.3
The responsibilities of the guardian ad litem
are quite broad. The Practice Standards mandate that the guardian ad litem
engage in ongoing review of the child’s well-being and report to the court.
The guardian ad litem is also expected to “ensure that realistic
goals are set in the case and that appropriate time periods are set for
reviewing progress toward those goals.” Id. In the event of an order
for termination of parental rights, the guardian ad litem is responsible
“for following the case and scheduling in-court reviews to ensure
that prompt adoptive action is taken.” Id. In In re L.H., the court
held that the guardian ad litem even had the authority to file a petition
for termination of parental rights.
The duration of the appointment is open-ended.
Although the appointment stems from a single judicial “proceeding”
in which custody, an adjudication of neglect or termination of parental
rights is at issue, D.C. Code §§ 16-918(b), 16-2304(b), the obligations
deriving from the appointment may continue until the child turns twenty-one
because of the duty to monitor the progress of the child and periodically
report to the court. The Superior Court Rules governing the duration of
the appointment reflect these expectations, and may be contrasted to the
duration of appointment of lawyers for children in custody matters brought
in domestic relations proceedings. As to the latter, Super. Ct. Dom. Rel.
R. 17 provides that the appearance of an attorney is deemed to have terminated
when a judgment or final order is entered from which no appeal has been
taken. In neglect proceedings, by contrast, until the case is closed the
appearance continues and withdrawal may only be accomplished with leave
of court. Super. Ct. Neg. R. 27. Attorneys from Counsel for Child Abuse
and Neglect have advised the Committee that a lawyer may act as a guardian
ad litem for a child involved in neglect proceedings for many years.
1. Does the guardian ad litem appointed in the abuse and neglect
proceeding have an obligation to initiate tort claims on behalf of the
child?
No. Scope of representation is usually governed by agreement between
lawyer and client.4
Comment [4] to Rule 1.2(a) of the Rules of Professional Conduct, however,
addresses situations where the scope of representation is determined
in a fashion other than by lawyer-client agreement. Comment [4] states
that “The objectives or scope of services provided by the lawyer
may be limited by agreement with the client or by the terms under which
the lawyer’s services are made available to the client” (emphasis
added). The comment goes on to give examples: a retainer defining the
scope of representation, a legal aid agency limiting its work to certain
types of cases and an insurer restricting representation to matters
involving insurance coverage.
Thus, where a lawyer is appointed to represent
an individual in a particular proceeding, the lawyer’s obligation will
be defined by the statute, regulation or orders governing the appointment.
For example, a lawyer appointed for a criminal defendant is not required
to represent the defendant with respect to landlord-tenant matters,
nor even regarding alleged constitutional violations in connection with
the defendant’s conditions of confinement (except to the extent relevant
to the disposition of the criminal charge itself). Here, the guardian
ad litem is appointed to represent the child “in the [neglect]
proceeding,” D.C. Code § 2304(b). However broad the responsibilities
attendant to representation in those proceedings may be, the scope of
the appointment nevertheless is limited to matters concerning custody
and placement. In the absence of a statutory obligation to represent
the child in other matters, then, we believe the lawyer has no ethical
obligation to represent the child regarding other claims the child may
have, including independent actions in tort, even for injuries inflicted
during a placement made as a result of the neglect proceedings.
2. Does the guardian ad litem have an obligation to advise the child
or responsible adults of potential claims against third parties the
child may have?
A lawyer ordinarily is not required to provide advice about matters
or potential claims not within the scope of the retainer agreement or
appointment. In Informal Opinion 1465 (1981), the American Bar Association
Standing Committee on Ethics and Professional Responsibility addressed
the question whether a public defender representing a criminal defendant
on appeal has an obligation to advise the client of a potential civil
claim for malpractice against the lawyer who represented the client
at trial. The Committee held that the ABA Model Code neither prohibited
nor required such advice. It noted that under Ethical Consideration
2-2 of the ABA Model Code,5
which advises lawyers “to assist lay-persons to recognize legal
problems because such problems may not be self-revealing and often are
not timely notice,” it is “proper” for appellate counsel
to advise the client of a possible malpractice claim. The Committee
found that there was no obligation, however, to do so.
The D.C. Rules of Professional Conduct contain
similar advice. Comment [4] to Rule 2.1 notes that “In general,
a lawyer is not expected to give advice until asked by the client.”
The Comment goes on to note, however, that “A lawyer ordinarily
has no duty to initiate investigation of the client’s affairs or to
give advice that the client has indicated is unwanted, but a lawyer
may initiate advice to a client when doing so appears to be in the client’s
interest.” (Emphasis added.)
The circumstances here, however, are not ordinary.
Although Comment [4] gives no clue when the lawyer has an obligation
to initiate advice to the client even in the absence of a request for
it, we believe this is one such circumstance. The unique role of the
guardian ad litem in abuse and neglect cases leads us to conclude that
if the lawyer for a child identifies significant potential claims of
the child against third parties, the lawyer has the obligation to notify
the child or those responsible for the child’s care (and in appropriate
cases, the court) of the potential claims and, when necessary to preserve
them, take reasonable steps to file notices required by statute.
There exist a number of elements of the role
of the guardian ad litem plays that lead us to this conclusion. The
guardian ad litem is responsible for monitoring many aspects of the
child’s life under circumstances where others have been alleged to fail
in that responsibility; because of the child’s youth and isolation from
the family, the guardian ad litem is likely to be the only possible
source of legal advice available to the child concerning potential claims;
and the duration of the appointment puts the guardian ad litem in a
good position to make reasonable judgments about potential claims. The
lawyer, accordingly, should exercise judgment whether investigation
or action may be warranted and, if so, what steps should be taken.
This limited duty finds support as well from
Rule 2.1, describing the lawyer’s role as adviser, Rule 1.3, requiring
diligent representation, and Rule 1.4, mandating communication with
clients. Rule 2.1 provides that when representing a client, “a
lawyer shall exercise independent professional judgment and render candid
advice.” As indicated above, this duty is generally limited to
the matter in which representation is provided, but where there is no
other likely source of advice, a narrow reading of the duty does nothing
more than guarantee that rights will be lost.
Comment [8] to Rule 1.3 is also relevant. That
Comment addresses the situation where, as here, the lawyer serves a
client “over a substantial period in a variety of matters.”
In such circumstances, the Comment advises, “the client sometimes
may assume that the lawyer will continue to serve on a continuing basis
unless the lawyer gives notice of withdrawal.” The Comment goes
on to state that it is the responsibility of the lawyer to assure that
the client understands the limits of the representation.
Finally, Comment [3] to Rule 1.4 states: “The
guiding principle is that the lawyer should fulfill reasonable client
expectations for information consistent with (1) the duty to act in
the client’s best interests, and (2) the client’s overall requirements
and objectives as to the character of the representation.”
These comments, read together, suggest that
the lawyer has an obligation at least to assure that colorable claims
for compensation do not simply drift away because no one else is aware
of them, especially in a situation where the child is unlikely to turn
elsewhere for help. The guardian ad litem is responsible for understanding
and reporting on the client’s well-being during the pendency of the
neglect proceeding and may be the only person who has knowledge of the
potential claim or is in a position to take steps to protect the client’s
interests regarding the claim. The child can reasonably expect the lawyer
not to allow strong claims to be abandoned. Accordingly, we believe
the Rules impose an obligation to inform the child or responsible adult
of potential claims for injuries the lawyer is aware of, and, where
statutory notice requirements exist, to preserve potential claims the
lawyer reasonably believes warrants preservation.
We stress the narrowness of this obligation
to advise and to preserve. It is not a duty to investigate potential
claims. Nor is it a duty to take steps to preserve all potential claims,
but only those that come to the lawyer’s attention and which the lawyer
reasonably believes may be colorable. Nor, finally, is there any duty
to provide representation in these matters. In all cases the lawyer
is expected to exercise reasonable judgment whether the potential claims
should be the subject of advice and preservation.
3. May the guardian ad litem appointed in the neglect proceeding initiate
tort claims on behalf of the child?
When the guardian ad litem seeks to initiate actions beyond the
scope of the appointment, the guardian ad litem’s actions must be governed
by the more general rules applicable to the representation of children.
This Committee has not previously addressed these questions. Three rules
in particular, Rules 1.2, 1.7 and 1.14, are especially relevant to the
determination whether the guardian ad litem may proceed with a tort
action on behalf of the child.
Rule 1.2 provides that the client and the lawyer
mutually agree on the objectives of representation. Unless the child
is too young to consult, the child’s minority does not obviate the obligation
to consult with the client concerning the bringing of a tort claim as
an element of the normal lawyer-client relationship. Rule 1.14(a) provides:
When a client’s ability to make adequately considered decisions
in connection with the representation is impaired, whether because
of minority, mental disability, or for some other reason, the lawyer
shall, as far as reasonably possible, maintain a normal client-lawyer
relationship with the client.
Comment [1] to Rule 1.14(a) elaborates
on the obligation to seek to maintain a normal lawyer-client relationship
with a child or a person with a disability. It recognizes generally
that “a client lacking in legal capacity often has the ability
to understand, to deliberate upon, and reach conclusions about matters
affecting the client’s well-being.” The Comment goes on to recognize
that children “as young as five or six years, and certainly those
of ten or twelve” are entitled to have their opinions concerning
custody given some legal weight.
Rule 1.14 thus embraces research on child development
suggesting that children often have the capacity to, and therefore should,
participate in legal decisions affecting them. The extent of their involvement
and decision-making role depends on the age and individual characteristics
of the child. The lawyer therefore must make an assessment of the client’s
ability to participate, and “as far as reasonably possible”,
invite the child to make decisions about the potential claim. Rule 1.14(b)
admonishes the lawyer to seek appointment of a guardian or take other
protective action only if the lawyer “reasonably believes that
the client cannot adequately act in the client’s own interest.”
Thus, if the child is able to participate in the decision whether to
bring a tort claim, she must be given an opportunity to do so in a manner
appropriate to the child’s age and stage of development.
If, after consulting with the child as appropriate,
the guardian ad litem and the child agree that a tort action should
be brought, may the guardian ad litem represent the child?
We believe that Rule 1.7 precludes the guardian
ad litem from entering into a retainer agreement on the child’s behalf
and acting as lawyer for the child in tort actions unless an additional
guardian ad litem is appointed for that case. Rule 1.7(b)(4) prohibits
a lawyer from representing a client “where the lawyer’s professional
judgment could be adversely affected by the lawyer’s responsibility
to or interests in a third party or the lawyer’s own financial interests.”
The conflict in this situation is obvious,
since in entering an agreement to represent the child, the guardian
ad litem would be acting on behalf both of the child and on behalf of
herself in a transaction where the lawyer’s financial interests are
directly at stake and are adverse to those of the child (e.g., what
fee should be charged?). The situation is similar to the one this Committee
considered in Opinion 156 (1985), where a guardian ad litem sought to
consent, on behalf of the child, to simultaneous representation of the
child and prospective adoptive parents. We observed there that the “lawyer
cannot provide disinterested consent [on behalf of the child] to his
own employment by the prospective parents.” Similarly here, the
guardian ad litem cannot consent on the child’s behalf to bringing a
case or entering a financial arrangement with the guardian ad litem.
Further, post-retainer conflicts problems, e.g., making decisions in
the litigation, particularly about settlement, preclude the guardian
ad litem from acting as both guardian ad litem and lawyer for the child
in the tort action. See Michigan Standing Committee on Professional
and Judicial Ethics Op. RI-213 (1994).
Accordingly, the guardian ad litem cannot consent,
on behalf of the child, to her own retention to bring tort litigation
on behalf of the child. Even if consent to proceed in the litigation
has been obtained elsewhere,6
the guardian ad litem cannot proceed in the dual roles of lawyer in
the tort case and guardian ad litem in the abuse or neglect case7
unless another decision-maker is available to direct the litigation
in the tort case.
This requires a third party decision maker, e.g., a parent, a guardian
ad litem separately appointed for that tort case, or referral to another
lawyer for the tort litigation. Even with third party participation,
the guardian ad litem who proceeds with representation in the tort case
must be vigilant about potential conflicts between representation in
the tort litigation and responsibilities as guardian ad litem in the
abuse and neglect case. Without additional facts, we are not prepared
to say that the potential conflicts in the two roles require a per se
rule precluding representation in both proceedings so long as a separate
guardian ad litem is appointed for the tort case.8 The consequences of
a per se rule, moreover, would be to further limit access to legal representation
to children who already have the greatest difficulty obtaining counsel.
In addition, the guardian ad litem is likely to be in the best position
to learn the facts of the alleged tort action and make appropriate judgments
about its chances of success and financial value.
4. If the lawyer acting as guardian ad litem brings a case on behalf
of the child, does he or she have immunity for improperly pursuing or
failing to pursue a claim for legal action on behalf of the child?
This question is one of substantive law beyond the purview of the Committee.
Inquiry No. 92-11-41
Adopted: November 15, 1994
- The statute provides, in relevant part:
The Superior Court shall in every case involving a neglected
child which results in a judicial proceeding, including the termination
of the parent and child relationship pursuant to subchapter III of
this chapter, 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 interests.
The role and responsibilities of a guardian ad litem in other proceedings
may differ.
- Some commentators argue that the guardian
ad litem in a neglect proceeding should be an independent advisor to
the court on the question of the child’s best interests, while
others contend that the guardian ad litem should advocate for the child
in the same way as a lawyer represents any other client. Yet a third
group takes a view that where the guardian ad litem’s assessment
of the child’s best interests is consistent with the child’s
wishes, the guardian ad litem should act as the lawyer for the child;
if the views of the guardian and the lawyer conflict, the guardian ad
litem adheres to the “best interests” standard, but another
lawyer is appointed to represent the child. The question has been the
subject of opinions of legal ethics committees, see, e.g., Ariz. Op.
86-13, Wis. Op. E-89-13 (1989), as well as discussion in the literature
on child advocacy. See generally M. Soler et al., Representing the Child
Client (1993).
- The Court of Appeals has noted that while
the guardian ad litem is expected to make an independent investigation
of and make a judgment about the child’s best interests, so
long as the views of the guardian ad litem and child coincide, the guardian
ad litem is expected to “represent and advocate for” the
child’s best interests. In re L.H., 634 A.2d 1230 (1993); see
also S.S., supra at 876. Counsel for Child Abuse and Neglect, a branch
of the Family Division of Superior Court, has issued Practice Standards
for Attorneys in Neglect Cases in the District of Columbia Superior
Court. Those standards suggest that unless the guardian’s assessment
of best interests conflict with the child’s wishes, the role of
the guardian ad litem in neglect proceedings is as an advocate for the
child.
In the event that the guardian ad litem’s
assessment of the child’s best interests conflict with the views
of the child, the Practice Standards advise that counsel notify the
court and ask that separate counsel be appointed. The court may appoint
a second attorney to serve as the child’s counsel, representing
the child’s views, while the guardian ad litem notifies the court
of his or her assessment of the child’s best interests. In the
Matters of A.S. and J.S., 118 D.W.L.R. 2221, 2227 n. 15 (Super Ct. Oct.
11, 1990).
- Rule 1.2 appears to incorporate the substantive
law that governs the lawyer-client representation agreement.
- Ethical Considerations under the Model
Code are aspirational in character.
- See also Superior Court Civil Rule 17(c),
governing bringing suits on behalf of children. Whether the parents
need to be involved in the decision is a matter of substantive law that
the Committee does not address.
- Ethics committees in other jurisdictions
have opined that to act as guardian ad litem and lawyer does not pose
an inherent conflict, but these opinions did not address the special
problems in tort cases. Wis. Legal Ethics Op. E-89-13 (1989), Ariz.
Ethics Comm. Op. 86-13 (1986).
- See N.H. Ethics Op. 1088-0/15 (1989) (lawyer
who was appointed guardian ad litem for two minor children who were
the victims of felonious assault and participated in plea negotiations
in which the defendant plead nolo contendere may represent the children
through their mother in a civil suit unless the lawyer may be called
as a witness in the trial of the civil action). N.Y. State Bar Ass’n
Ethics Op. 648 (1993), decided under the Model Code’s “appearance
of impropriety” standard, advised that law guardians, the equivalent
of guardians ad litem here, should “take particular care to avoid
even the appearance that he or she has taken advantage of the fiduciary
relationship between guardian and child to obtain valuable subsequent
employment as counsel.”
|
