The views expressed herein have not been approved by the House of Delegates or the Board of Governors of the American Bar Association, and accordingly, should not be construed as representing the policy of the American Bar Association.
May a parent’s lawyer communicate with a child who is represented by a guardian ad litem (GAL) without the GAL’s consent? A recent Virginia ethics opinion says no.
In Virginia, GALs represent children as lawyers. Therefore, Virginia Rule of Professional Conduct 4.2 applies. Rule 4.2 prohibits a lawyer from communicating about the subject of the representation with a person known to be represented by another lawyer without the consent of that lawyer or separate legal authority.
The opinion cites courts and ethics opinions in other jurisdictions that have held Rule 4.2 prohibits lawyers from communicating with a child once a GAL has been appointed, unless the GAL consents or a court authorizes contact.
The Supreme Court of Wisconsin, in Disciplinary Proceedings Against Kinast, 530 N.W.2d, 390, 391, stated that Rule 4.2 “protect[s] litigants from being intimidated, confused, or otherwise imposed upon by counsel for an adverse party.” The court stressed that children are just as entitled to that protection as adult litigants.
The Court of Special Appeals in Auclair v. Auclair, 730 A.2d 1260 (1999) approved Kinast’s ruling, but permitted the opportunity for a child represented by a GAL to seek a private attorney’s advice.
State bar ethics committees in North Dakota, New York, and Utah have reached similar conclusions:
North Dakota’s ethics committee said that when a lawyer-GAL represents a child’s best interests, Rule 4.2 prohibits communication with the child without the GAL’s consent or a court order.
The New York State Bar Association’s ethics committee said a parent’s attorney in a custody case cannot question a child represented by a law guardian without the law guardian’s consent. The committee clarified that a parent’s consent does not affect whether a parent attorney may speak with a represented child; the GAL must still consent.
Utah’s ethics committee said that except in the case of a mature minor seeking a second opinion or independent representation, an attorney may not communicate with a represented child about the subject of representation without the GAL’s consent or court permission.
The Virginia ethics committee also explored whether a child’s GAL may communicate with the parent without consent from the parent’s lawyer. It similarly concluded that Rule 4.2 prohibits such communication without consent from the parent’s lawyer or court permission.
Finally, the Virginia opinion considered whether a government lawyer violates Rule 4.2 by asking a social worker or investigator to speak with a child who is represented by a GAL. The ethics committee concluded that Rule 4.2 applies to lawyer-directed communications by nonlawyers with represented people. The committee stressed that while a government lawyer may advise on the information being sought, the lawyer may not mastermind or script the interview.
Virginia Legal Ethics Opinion 1870, October 4, 2013.