OCDC Opinion Often Violated, Lawyers Say

From – Missouri Lawyers Weekly

By: Ann Corrigan

November 3, 2003
Although they should know better, some attorneys routinely violate ethical rules by talking to children in domestic cases even though a guardian ad litem has been appointed, according to family lawyers.

The situation often arises when an attorney for the custodial parent forgets that the GAL in many ways is acting as the lawyer for the children. And as a recent opinion from the Office of Chief Disciplinary Counsel points out, Rule of Professional Conduct 4-4.2 generally prohibits a lawyer from communicating about the subject of the representation with a party represented by another lawyer.

“A lot of attorneys that don’t do a lot of domestic work think it’s OK,” said Bruce Hilton, a St. Louis family lawyer. The violation usually happens, Hilton said, when the attorney asks the children whether they would prefer to stay with mom or with dad — an important issue since one of the statutory factors for deciding custody is the preference of the child. “Some lawyers want to talk to the kids about that, and it really puts the kids in the middle.”

Statutory Framework

Guardians ad litem are most often appointed under two Missouri statutes, said Hilton. These two statutes describe the guardian ad litem’s role in different ways.

Under Sect. 210.160 of the Child Protection and Reformation Act, the court must appoint a guardian ad litem in every case involving an abused or neglected child that results in a judicial proceeding. The guardian “appears for and represents” the child in that proceeding. This statutory language clearly reflects the attorney-client relationship between the guardian ad litem and the child, Hilton noted. As such, any communication should be prohibited if the guardian ad litem is not present.

By contrast, Sect. 452.423 empowers the court in its discretion to appoint a guardian ad litem for a child in dissolution actions or legal separation cases where custody, visitation or child support is a contested issue. While the appointment of a guardian ad litem is only discretionary in those cases, the court must appoint a guardian ad litem in any case involving allegations of child abuse or neglect.

‘Best Interest’

When appointed under Sect. 452.423, the guardian ad litem is the “legal representative” of the child and is considered to represent the “best interest” of the child. The guardian ad litem has the authority to examine, cross-examine and subpoena witnesses and to offer testimony at any hearings involving the child. These are roles an attorney is able to do on behalf of a client and support the interpretation of the guardian ad litem’s role as an attorney for the child, said Hilton.

The Missouri Supreme Court described the role of guardians ad litem in Missouri juvenile and family court matters in an order entered Sep. 17, 1996 establishing standards for guardians ad litem in Missouri courts. In those comments, the court noted that the role of a guardian ad litem and a lawyer for the child “are different and must be clearly distinguished.” The court further noted that a “lawyer guardian ad litem is not the lawyer for the child, and therefore, advocates the best interests of the child rather than merely representing the child’s preferences.”

The Supreme Court’s comments state that the guardian ad litem should make sure the child understands the legal process, ensure the child’s wishes are made known to the court and inform the court of what the guardian ad litem believes is in the best interest of the child. The GAL also has the right to limit the amount of court appearances or depositions involving the child if he or she believes these matters are not in the best interest of the child.

Richard Eisen, a lawyer from St. Louis who occasionally is appointed as a guardian ad litem in domestic matters, agrees with the informal advisory opinion’s position. “Once a guardian ad litem has been appointed, there is a presumption that communications between the guardian ad litem and the child are confidential. It is very similar to the attorney-client relationship,” he said. “After that point, you cannot have a direct conversation with the children about the situation at hand.” He added that a lawyer may greet a child who may be accompanying his parent to an office visit but cannot question the child about his or her relationship with his parent.

“The GAL has a dual role,” says Lori Levine, a family law practitioner in Jefferson City. “They’re an advocate but an advocate in a different way. That still doesn’t separate that they are the attorney for the child. Their advocate’s role is advocating for the best interest of the child.”

The need to interview children represented by a guardian ad litem arises in two instances, says Levine, and depends on the age of the child and what the child knows. “Sometimes the child is a good fact witness in terms of what’s going on in the home,” says Levine, referring to a situation involving allegations of neglect or abuse. “Other times, children are going to offer information about their preferences, and the lawyer wants to get a sense of the ‘whys’ of those preferences.” Levine gave as an example a child’s preference to live with a parent who has no bedtime or junk food restrictions — reasons underlying the child’s preference but which are not in his best interest.

In either event, Levine said it is important that the GAL be notified of an interview of a child in advance of that interview. In protecting the best interest of a child, a GAL may deny a request to talk with a child to protect that child’s emotional stability. Levine noted a case she recently had involving very young children represented by a GAL who advocated that the voice of the children could best be heard through their therapist. Levine also stated that the GAL sometimes can serve as a gatekeeper and facilitator of communications be-tween attorneys and children by coordinating, reducing and in some instances eliminating meetings with counsel of both parents.

Despite the reasons for the appointment of the GAL, once that appointment has been made, there should be no communications with the child by either parent’s attorney unless the guardian ad litem is present, said Levine. “I have taken this position for years that once a guardian ad litem has been appointed to represent the child, the child has counsel just as any other party with counsel,” she said. “There have been occasions where I wanted to talk to kids and they have a GAL, and I have asked to talk to them with the GAL in their presence. It’s always up to the GAL.”

Spare The Child

Although the advisory opinion only refers to the custodial parents’ attorneys, Levine feels that the opinion will be read more broadly to encompass attorneys of both parents.

The prohibition against communicating with children who have had a guardian ad litem appointed for them has a secondary benefit of sparing those children some of the stress and confusion caused by one or both parents’ attorneys questioning them.

“Kids are susceptible to the pressure and stress already and they don’t need the extra stress of being talked to by lawyers for the parties,” saidLeigh Joy Carson, a lawyer in St. Louis who frequently serves as a guardian ad litem in dissolution and custody proceedings. Carson said she has seen many instances where lawyers representing the parents have talked to the children about their parents’ case.

She said that lawyers representing parents in a custody or dissolution proceeding sometimes talk with their client’s children because they think they are helping the children. “These attorneys say that it’s all about the kids, which is false,” said Carson. “They can’t be looking after the best interest of the kids because they have a duty to represent their client, the parent,” she added. “I think it’s absolutely grotesque that they have to issue an opinion on this,” said Carson. “To me, it’s just common sense.”