By Richard E. Crouch
The new Virginia Legal Ethics Opinion 1870 clearly reemphasizes that a guardian ad litem is counsel for the child, and nothing else. No testimony, no cross-examination, (no report?) no delegation of judicial functions, etc. But the voluminous past definitions and rigid connotations of that powerful word, counsel, bring with them much baggage, which requires the Committee to say a whole lot more, setting the stage for unintended consequences that could be not only unwelcome, but breathtaking.
As the slavish loyalty to abstract concepts unfolds, a reader can’t help wondering if the legal profession has not painted itself into a corner insofar as practicality, and workability of the system, are concerned. Rule 4.2 and Rule 8.4 are involved here. In brief, it is now clear that no lawyer, not even a parent’s lawyer, can talk to the child without the GAL’s permission, leaving it open of course for the GAL to impose whatever conditions she chooses. The LEO clearly states that the parents can’t give their permission: “consent by the child’s parent for the parent’s attorney to speak with the child is not pertinent.” And, following the inexorable logic as dogmatically as possible, the GAL can’t talk to the parents without their lawyer’s permission.
The State Bar has previously ruled (LEO 1725 and 1729) that the GAL is subject to the Rules of Professional Conduct unless those rules are inconsistent with the duties of a guardian ad litem. But the ambiguity that left us with is now resolved. The Committee acknowledged that a GAL is ordered to interview all parties to the dispute, including the parents, but that doesn’t mean she can do it without their counsel’s permission. The GAL is not “authorized by law” to communicate ex parte with these represented persons.
And as the Bar has made clear in previous Opinions and emphasizes throughout this one, you can’t use a lay proxy to violate the ex parte rule. Can the investigating social workers, or their agency’s lawyer, talk to represented parents? To children who have a GAL? The State Bar says not unless the GAL consents, or “unless the law or court order authorizes a lawyer to communicate ex parte with the represented child.” And while the Opinion says “Rule 4.2 does not prohibit a non-lawyer social worker or investigator from independently contacting the represented child,” it does prohibit it if “a government lawyer directs or controls the content of the communication through an intermediary such as a social worker or investigator.” But given the inflexibility of all these absolute prohibitions, perhaps the looming elephant in the corner is whether the parents themselves can communicate with the child (when he hasn’t been taken away yet) without getting their own lawyer in trouble, especially if the lawyer has advised them on how and how not to talk to their child about the case or about the other parent. So everyone can stay on edge until another LEO or disciplinary case comes along.