Protecting Your Client’s Interests

From – Missouri Lawyers Weekly

October 8, 2001

By Leigh Joy Carson

Do you just tell your client that the guardian ad litem is the lawyer for the children and tell him or her to call and set up a time to meet?  I would submit that you are making a big mistake.  In fact, you may have lost your client’s case for custody by doing so.

First, you have told your client that the GAL is the attorney for the children.  Sure, that is easier for the client to understand than the amorphous concept of the GAL representing the best interests of the children (what exactly does that mean anyway), but how do you look when the GAL tells the client what his or her true role is?  You look uneducated or sloppy or both.  Take the time to explain the GAL’s role in terms that the client can understand.  If there are older children and the GAL is in a position to recommend to the court that an attorney be appointed to represent the child, you will have prepared your client for the possibility, remote as it may be.

Second, you have failed to prepare your client for what may be the key event in the case.  All of us are deeply influenced by first impressions, and the GAL is no exception.  I understand the theory that as the attorney you cannot make a leopard lose its spots, nor can you direct your client to be untruthful.  Preparation is not, however, changing your client’s basic nature or telling him or her what to say in the sense of being dishonest.  It is helping the client understand the role of the GAL and the general nature of the questions to expect.

Is there a GAL out there who does not ask each parent what the good qualities of the other parent are?  I have yet to deal with such a creature in more than a decade of practicing family law.  It is seriously damaging and – depending on the other facts of the case – potentially fatal when a parent answers “none.”  Your client must have an answer to that question.  You should have a stock set of possibilities for your client to consider and if none of your suggestions triggers an answer from the client, explore what the initial attraction was (other than the obvious) to the other parent.  Explain to your client that acknowledging a positive quality (or two) in the other parent is not a detriment to their case in any way, but a sign that the client will encourage the relationship between the other parent and the children.  Repeat and repeat that the judge will likely believe that one of the greatest gifts that any parent can give to the child is the ability to love the other parent and that the GAL also needs to believe that the client is not only able, but willing, to give that gift.

In the same vein, your client should be prepared to discuss his or her weaknesses (or areas of improvement) as a parent.  Again, emphasize to the client that an admission of an area for improvement is not a weakness in the case, but a positive.  Ideally, the client can also describe a course of action or plan to improve in that weak area.

Likewise, the client should be able to discuss the children in an appropriate way.  And an adolescent who is asked by the GAL to “describe yourself” should be counseled to give comments about his or her interests, goals, achievements, social, athletic and academic achievements, while an adolescent who is not as highly functioning will respond with a recitation of age, grade in school, height and weight.

The client needs to display emotion and feeling when talking about the child.  The client must describe the child and also his or her relationship with the child in a meaningful way, such as “we were both so proud when he rode his bike without training wheels.”

The client must understand that the GAL is not necessarily a friend and that the GAL may pass along some or all of what the client says to the “other side.”  Nonetheless, truthfulness is essential.  One of the quickest ways to alienate the GAL is to be untruthful.

As the attorney, you should consider offering to accompany to client to the meeting(s) with the GAL.  You should not dominate the meeting, but a gentle reminder from you to the client to “answer the question” or “listen” may be helpful.  Just like in a deposition, the client is most likely to get into trouble when he or she stats rambling and volunteering information.  Remember at all times that the GAL is another attorney in the case whose opinion may be contrary to the client’s position.  You and the client should carefully consider giving information to the GAL that has not been requested.  Dishonestly or less than complete disclosure of information is certainly not appropriate, but volunteering may be deadly.

Help the client by giving the GAL copies of all of the pleadings.  It is silly to the give the GAL copies of your client’s pleadings only.  Even if you think the discover relates only to financial issues, give it to the GAL.  Prepare releases for your client to sign so the GAL may obtain copies of school, counseling and, if applicable, medical records of the children.  Consider having one release for both you and the GAL and copy the GAL with the letter requesting that the records be sent to both of you and indicating that you will bear the costs associated with production of the records for both attorneys.

Make certain that you maintain regular contact with the GAL.  Be sure to understand the GAL’s position and what information he or she needs.  Remember that there are ultimately only two possibilities: the GAL is for you or against you.  If the GAL is for you, be sure to help in any way you can and be careful not to do anything to jeopardize that opinion and to the extent possible, use the GAL to beat on the other side.  If the GAL is against you, use whatever you can to beat on the GAL.

Make certain that you client pays the fees that are ordered.  If possible, consent to judgments for additional fees requested by the GAL.  Consider having your client paying the fees directly to the GAL, who will then file an acknowledgement of satisfaction of judgment.  Don’t waste the GAL’s time with collection.  Facilitate the GAL’s focus on the best interests of the children.

Last but not least, know your GAL.  Of you have not worked with him or her before, find someone who has.  If the GAL is new, find someone who has had a case with him or her or went to law school with him or her.  Educate yourself about the GAL’s personal situation.  Know the person you are dealing with, plan your approach and work it.  Your preparation of yourself and your client may be dispositive.  So can the lack of preparation.  Prepare.  There is no more important issue in a domestic case than custody of a child.