Commentary, 0817 UTBJ, Vol. 30, No. 4. 46

AuthorMartha Pierce, J.

Commentary

Vol. 30 No. 4 Pg. 46

Utah Bar Journal

August, 2017

July, 2017

What Not to Say to a Guardian ad Litem

Martha Pierce, J.

Let’s just say I was disappointed and worried, but not surprised, when I read Ted Weckel’s commentary “On Becoming a More Effective Private Guardian ad Litem” in the May/June 2017 Utah Bar Journal.

Disappointed that Mr. Weckel’s description of Utah’s Guardian ad Litem program did not reflect our statutes, rules, case law, or actual practice. Worried that our office would be flooded with even more requests for production of documents (disallowed under Utah Code Section 78A-6-902(12)) and subpoenas for us to testify in our own cases (disallowed under Utah Rule of Professional Conduct 3.7). Worried that a less informed guardian ad litem, private guardian ad litem, or judge might, relying on the article, breach ethical rules or commit reversible error. Ultimately, I was not surprised because the article repeats common misperceptions about attorneys guardian ad litem (GAL) in Utah. Which brings me to:

What not to say to a Guardian ad Litem:

“It’s like you’re a low-budget custody evaluator.”

We’re not custody evaluators, expert witnesses, fact-finders, parenting coordinators, special masters, third-party neutrals, or visitation supervisors. See Utah R. Jud. Admin. 4-903 (qualifications for custody evaluators); Utah R. Prof’l Conduct 3.7 (lawyer as witness); In re A.D., 2000 UT App 216, ¶ 11, 6 P.3d 1137 (appropriate to quash subpoena for GAL to testify).

We don’t file reports. We file pleadings and memoranda. We don’t make recommendations. We argue our positions supported by admissible evidence. Utah Code Ann. § 78A-6-314(3)(b).

Our independent investigation is to help us “obtain, first-hand, a clear understanding of the situation and needs of the minor.” Id. §§ 78A-2-705(12)(b), 78A-6-902(3)(c).

“Oh, you don’t have to attend! This meeting is just for the attorneys on the case.”

We are attorneys on the case. We have party status. In re A.C.M., 2009 UT 30, ¶ 20, 221 P.3d 185.

“I didn’t receive your discovery.”

If you’re waiting for discovery from us, it’s going to be a long wait. Our records are not subject to subpoena or discovery. Utah Code Ann. § 78A-6-902(11)(b). Unless you have a legislative subpoena, we can’t help you. Id.

“So, what did the child tell you?”

So, what did your client...

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