Vol. 10, No. 3, Pg. 31. Lawyers Should Examine the New Guidelines for Guardians Ad Litem.

• Author: By Pamela Robinson and Roy Stuckey

South Carolina Lawyer

1998.

Vol. 10, No. 3, Pg. 31.

Lawyers Should Examine the New Guidelines for Guardians Ad Litem

30Lawyers Should Examine the New Guidelines for Guardians Ad LitemBy Pamela Robinson and Roy StuckeyLawyers are appointed every day to serve as guardians ad litem for children in family court disputes about child custody, abuse and neglect, and other issues. While lawyers are trained to represent clients, they are for the most part uninformed about the functional differences between lawyers and guardians.

In South Carolina, there are no statutes or cases that fully define the roles and responsibilities of guardians ad litem. Consequently, it is difficult for some lawyers to determine what to do and how to act when they are appointed as guardians.

New guidelines for guardians ad litem for children in family court have been developed by the Representation of Children Subcommittee of the Bar's Children's Committee. The House of Delegates approved the guidelines in June. The new guidelines will help educate lawyers and others about the roles and responsibilities of guardians ad litem for children and to encourage some changes in the way guardians discharge their duties.

While there are some similarities in the functions of guardians and lawyers, there are also some significant differences that can trap the unwary. For example, communications between guardians ad litem and children are not protected by an evidentiary privilege. The attorney-client privilege does not arise just because a guardian ad litem happens to be a lawyer. Thus, a lawyer who is appointed to serve only as a child's guardian ad litem might be compelled to testify about conversations with the child. Also, it is possible that at least some portions of a guardian ad litem's files are discoverable. See Deasy-Leas v. Leas, 693 N.E.2nd 90 and S.C. Code § 20-7-690 (11).

Another difference is that guardians are not absolutely required to maintain the confidences of their wards. Although it is generally understood that guardians should maintain the confidentiality of information received from their wards, they can choose to disclose confidential information if they believe it would be in the best interests of the children. The new guidelines clarify the distinctions between guardians ad litem and lawyers for children, and they suggest how...