State Bar of Arizona Ethics Opinions

00-06: Confidentiality; Guardians; Lawyer-Client Relationship; Minors
9/2000

A lawyer appointed solely as guardian ad litem for a juvenile where the juvenile has separate counsel is not in an attorney-client relationship with the juvenile and, therefore, not bound by ER 1.6's ethical duties of confidentiality. See Ariz. Op. 86-13 for the ethical issues posed when a lawyer is appointed as both counsel and guardian ad litem for a juvenile. [ERs 1.2, 1.6, 1.14]

FACTS[1]

 

The juvenile court may appoint an attorney as a guardian ad litem for a juvenile in a delinquency proceeding where the minor's mental status is at issue.  Additionally, a delinquency petition may be prosecuted concurrently with a dependency proceeding in which a guardian ad litem has been appointed.  Whatever the reason for the appointment of a guardian, a different lawyer represents the juvenile.

 

QUESTIONS PRESENTED

 

  1. Does an attorney appointed as a guardian ad litem for a juvenile observe the ethical rules governing attorneys, particularly the duty of confidentiality, where the juvenile is represented by separate counsel? 
  2. Do the ethical duties of the attorney-guardian ad litem vary depending on whether the lawyer who represents the juvenile has an opportunity to advise the juvenile before the juvenile speaks with the guardian ad litem? 

RELEVANT ETHICAL RULES

 

ER 1.2.            Scope of Representation

 

            (a)            A lawyer shall abide by a client's decisions concerning the objectives of representation, subject to paragraphs (c), (d) and (e), and shall consult with the client as to the means by which they are to be pursued.  A lawyer shall abide by a client's decision whether to accept an offer of settlement of a matter.  In a criminal case, the lawyer shall abide by the client's decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial and whether the client will testify.

 

* * * *

 

ER 1.6            Confidentiality of Information

 

            (a)            A lawyer shall not reveal information relating to representation of a client unless the client consents after consultation, except for disclosures that are impliedly authorized in order to carry out the representation, and except as stated in paragraphs (b), (c) and (d) or ER 3.3(a)(2).

 

            (b)            A lawyer shall reveal such information to the extent the lawyer reasonably believes necessary to prevent the client from committing a criminal act that the lawyer believes is likely to result in death or substantial bodily harm.

 

            (c)            A lawyer may reveal the intention of his client to commit a crime and the information necessary to prevent the crime.

 

            (d)            A lawyer may reveal such information to the extent the lawyer reasonably believes necessary to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceedings concerning the lawyer's representation of the client.

 

ER 1.14.            Client Under A Disability

 

            (a)            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.

 

            (b)            A lawyer may seek the appointment of a guardian or take other protective action with respect to a client, only when the lawyer reasonably believes that the client cannot adequately act in the client's own interest.

 

RELEVANT ARIZONA ETHICS OPINIONS

 

Ariz. Ops. 86-13, 93-09, and 96-01

OPINION        

The juvenile court may appoint a guardian ad litem for certain juveniles where there is evidence that inpatient mental health evaluation and treatment is required.  See generally A.R.S. §§ 8-273(G) and 8-274(D) (Adopted 4/24/00).  In those instances, the court must also appoint counsel for the child.  Id.  It is also possible for a juvenile to be represented by counsel and to have a guardian ad litem where delinquency and dependency petitions are pending at the same time.  See A.R.S. §§ 8-221(I) and 8-522; Ariz.R.Juv.Proc., Rule 22.  In either situation, an attorney appointed as a guardian ad litem has different responsibilities from the lawyer representing the minor child.  The guardian ad litem must "protect the juvenile's best interests."  A.R.S. § 8-221(I).  The lawyer representing the minor, on the other hand, generally follows the "client's decisions."  ER 1.2(a).  Not surprisingly, what the juvenile-client wants and what is in the child's best interests may not be the same.  This potential divergence between a juvenile-client's wishes (or the advice provided by the lawyer representing the juvenile) and what an attorney-guardian ad litem believes is in the best interests of the child may cause ethical problems where the roles are not well defined or distinctions between the roles are not closely observed.

 

Attorneys routinely function in roles that draw upon their experience in and knowledge of the law, even though they do not act directly as a lawyer.  It is undisputed that attorneys are still bound by the Rules of Professional Conduct regardless of whether their primary function includes an attorney-client relationship or whether other attorneys are involved.  See Ariz. Op. 96-01 (attorney-mediator).  The application of a particular ethical rule to an attorney acting in another role depends upon the language of the rule and the conduct involved.  See, e.g., Ariz. Op. 93-09 (Rule 1.7 does not apply to attorney-legislator).

 

ER 1.6 imposes the duty of confidentiality on the lawyer concerning information obtained from the client-lawyer relationship.  By its direct language, ER 1.6 assumes that the lawyer represents a client.[2]  Of course, whether a client-lawyer relationship exists for any specific purpose depends on the circumstances.  In the situation presented, the attorney-guardian ad litem does not have a client-lawyer relationship.  The lawyer representing the juvenile has the duties pertaining to clients.

 

In Ariz. Op. 86-13 the Committee considered whether an attorney could "accept employment as both the guardian ad litem and the attorney for the minor child."  While concluding that a lawyer may act in both roles, it advised that the first obligation is to the "minor client" rather than the child ward.  Additionally, if the roles began to conflict, the attorney could withdraw as guardian ad litem and continue as counsel.  Such a conflict would never develop in this instance because the attorney-guardian ad litem would have never assumed the ethical duties imposed in the client-lawyer relationship.  The separate appointment of counsel and a guardian ad litem avoids the ethical problems addressed in Ariz. Op. 86-13.

 

The Committee concludes that ER 1.6 does not apply to an attorney-guardian ad litem where the child also has separate counsel.  Likewise, most of the other duties flowing from the client-lawyer relationship would not apply to the attorney-guardian ad litem in this situation, although inquiring attorney has not provided facts from which the Committee might address the application of other rules.

 

The attorney-guardian ad litem should make clear to the child that although he or she is a lawyer, the court appointed the attorney as guardian ad litem to look after the child's best interests, which may or may not coincide with what the child wants at any given time.  The attorney-guardian ad litem can inform the child that the lawyer representing the minor will act more in accordance with the minor's wishes.  Since in many instances the child may be operating under a disability that resulted in the appointment of a guardian ad litem, it is especially important for all attorneys to keep the roles separate and distinct.[3]

 

This final point disposes of the second query, whether the ethical duties of the attorney-guardian ad litem differ depending on whether the lawyer representing the minor has had an opportunity to advise the minor about speaking with others.  An attorney-guardian ad litem's responsibilities exist independent of the duties of the lawyer who represents the minor.  The attorney-guardian ad litem must work with the child's best interests in mind.[4]  It is understandable that the lawyer representing the minor may wish to advise the minor not to talk to others about the conduct in question, possibly including the attorney-guardian ad litem, because the conversation may not be privileged.  Nonetheless, the attorney-guardian ad litem is not ethically bound to act in the place of the lawyer representing the minor.  To do otherwise would cause confusion that both the attorney-guardian ad litem and the lawyer representing the minor should avoid and affirmatively guard against. 

This Opinion is limited to situations where an attorney is appointed to act exclusively as a guardian ad litem in juvenile court proceedings.  If the attorney has a dual appointment to act also as the child's attorney, then Ariz. Op. 86-13 applies.  Additionally, this Opinion may not be applicable to other settings in which an attorney may have "guardian" responsibilities arising out of the legal representation.



[1] Formal Opinions of the Committee on the Rules of Professional Conduct are advisory in nature only and are not binding in any disciplinary or other legal proceedings.  Ó State Bar of Arizona 2000

[2] ER 1.6 also attaches when the lawyer agrees to consider whether a client-lawyer relationship shall be established.  Preamble to Rules of Professional Conduct.

[3] Juvenile court records and proceedings may be closed to the public.  A.R.S. § 8-208(E-G); Ariz.R.Juv.Proc., Rule 7(c).  This has occasionally been referred to as the rule of confidentiality in juvenile proceedings.  See, e.g., In re Juvenile Action No. JV-132744.  188 Ariz. 180, 182, 933 P.2d 1248 (App. 1996).  Nonetheless, the ward may not understand that communications to the attorney-guardian ad litem may be disclosed even in a "confidential" hearing.  Therefore, the ward should be affirmatively told that a lawyer's duty of confidentiality does not apply to an attorney acting only as a guardian ad litem.

[4] It has been stated that a lawyer who is required to determine the child's best interests, as compared with following the child's expressed preference, is functioning in a "nontraditional role."  ABA Standards of Practice For Lawyers Who Represent Children in Abuse and Neglect Cases, § B-5, Commentary (1996).  This observation supports the conclusion that the attorney-guardian ad litem does not and should not assume the "traditional" duties inherent in the attorney-client relationship.