Ethics Opinion 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.
- 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)
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.
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  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  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  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  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  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  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  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.
1. 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.
2. 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).
3. 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).
4. Rule 1.2 appears to incorporate the substantive law that governs the lawyer-client representation agreement.
5. Ethical Considerations under the Model Code are aspirational in character.
6. 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.
7.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).
8. 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.”