Notices
| Publication year | 2010 |
| Pages | 0088 |
First Publication of Proposed Formal Advisory Opinion No. 09-R3
Pursuant to Rule 4-403(c) of the Rules and Regulations of the State Bar of Georgia, the Formal Advisory Opinion Board has made a preliminary determination that the following proposed opinion should be issued. State Bar members are invited to file comments to this proposed opinion with the Formal Advisory Opinion Board at the following address:
State Bar of Georgia
104 Marietta Street, NW
Suite 100
Atlanta, Georgia 30303
Attention: John J. Shiptenko
An original and one (1) copy of any comment to the proposed opinion must be filed with the Formal Advisory Opinion Board by July 15, 2010, in order for the comment to be considered by the Board. Any comment to a proposed opinion should make reference to the request number of the proposed opinion. Any comment submitted to the Board pursuant to Rule 4-403(c) is for the Board's internal use in assessing proposed opinions and shall not be released unless the comment has been submitted to the Supreme Court of Georgia in compliance with Bar Rule 4-403(d). After consideration of comments, the Formal Advisory Opinion Board will make a final determination of whether the opinion should be issued. If the Formal Advisory Opinion Board determines that an opinion should be issued, a final draft of the opinion will be published, and the opinion will be filed with the Supreme Court of Georgia.
PROPOSED FORMAL ADVISORY OPINION NO. 09-R3
QUESTION PRESENTED:
May an attorney who has been appointed to serve both as legal counsel and as guardian ad litem for a child in a termination of parental rights case advocate termination over the child's objection?
SUMMARY ANSWER:
When it becomes clear that there is an irreconcilable conflict between the child's wishes and the attorney's considered opinion of the child's best interests, the attorney must withdraw from his or her role as the child's guardian ad litem.
OPINION:
Relevant Rules
This question squarely implicates several of Georgia's Rules of Professional Conduct, namely Rule 1.14. Rule 1.14, dealing with an attorney's ethical duties towards a child or other client with a disability, provides that "the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client." Comment 1 to Rule 1.14 goes on to note that "children as young as five or six years of age, and certainly those of ten or twelve, are regarded as having opinions that are entitled to weight in legal proceedings concerning their custody."[1]
This question also involves Rule 1.2, Scope of Representation, and Rule 1.7, governing conflicts of interest.[2] Comment 4 to Rule 1.7 indicates that "[l]oyalty to a client is also impaired when a lawyer cannot consider, recommend or carry out an appropriate course of action for the client because of the lawyer's other competing responsibilities or interests. The conflict in effect forecloses alternatives that would otherwise be available to the client."[3]
Finally, this situation implicates Rule 3.7, the lawyer as a witness, to the extent that the guardian ad litem must testify and may need to advise the court of the conflict between the child's expressed wishes and what he deems the best interests of the child. Similarly, Rule 1.6, Confidentiality of Information, may also be violated if the attorney presents the disagreement to the Court.
Statutory Background
Georgia law requires the appointment of an attorney for a child as the child's counsel in a termination of parental rights proceeding.[4] The statute also provides that the court may additionally appoint a guardian ad litem for the child, and that the child's counsel is eligible to serve as the guardian ad litem.[5] In addition to the child's statutory right to counsel, a child in a termination of parental rights proceedings also has a federal constitutional right to counsel.[6]
In Georgia, a guardian ad litem's role is "to protect the interests of the child and to investigate and present evidence to the court on the child's behalf."[7] The best interests of the child standard is paramount in considering changes or termination of parental custody. See, e.g., Scott v. Scott, 276 Ga. 372, 377 (2003) ("[t]he paramount concern in any change of custody must be the best interests and welfare of the minor child"). The Georgia Court of Appeals held in In re A.P. based on the facts of that case that the attorney-guardian ad litem dual representation provided for under O.C.G.A. § 15-11-98(a) does not result in an inherent conflict of interest, given that "the fundamental duty of both a guardian ad litem and an attorney is to act in the best interests of the [child]."[8]
This advisory opinion is necessarily limited to the ethical obligations of an attorney once a conflict of interest in the representation has already arisen. Therefore, we need not address whether or not the dual representation provided for under O.C.G.A. § 15-11-98(a) results in an inherent conflict of interest.[9]
Discussion
The child's attorney's first responsibility is to his or her client.[10] Rule 1.2 makes clear that an attorney in a normal attorney-client relationship is bound to defer to a client's wishes regarding the ultimate objectives of the representation.[11] Rule 1.14 requires the attorney to maintain, "as far as reasonably possible...a normal client-lawyer relationship with the [child]."[12] An attorney who "reasonably believes that the client cannot adequately act in the client's own interest" may seek the appointment of a guardian or take other protective action.[13] Importantly, the Rule does not simply direct the attorney to act in the client's best interests, as determined solely by the attorney. At the point that the attorney concludes that the child's wishes and best interests are in conflict, the attorney should petition the court for removal as the child's guardian ad litem, disclosing only that there is a conflict which requires such removal.
The attorney should not reveal the basis of the request for the appointment of a guardian ad litem to preserve confidentiality and so as not to compromise the child's position.[14] An exception to the duty of confidentiality may arise "[w]here honoring the duty of confidentiality would result in the children's exposure to a high risk of probable harm."[15]
The attorney should not reveal further information received during the representation, nor should the attorney otherwise use the information received from the child in confidence to advocate a position not desired by the child.[16] This contrasts with the attorney's ability to disclose such information to the court in service of the child's wishes.[17]
The attorney is under an affirmative ethical obligation to seek to have a new guardian ad litem appointed following his withdrawal as guardian, as Comment 3 to Rule 1.14 explains that "the lawyer should see to [the appointment of a legal representative] where it would serve the client's best interests." If the conflict between the attorney's view of the child's best interests and the child's view of his or her own interests is severe, the attorney may seek to withdraw entirely following Rule 1.16 or seek to have a separate guardian appointed.[18]
The attorney may not withdraw as the child's counsel and then seek appointment as the child's guardian ad litem, as the child would then be a former client to whom the former attorney/guardian ad litem would be adverse.[19]
This conclusion is in accord with many other states.[20] For instance, Ohio permits an attorney to be appointed both as a child's counsel and as the child's guardian ad litem.[21] Ohio ethics rules prohibit continued service in the dual roles when there is a conflict between the attorney's determination of best interests and the child's express wishes.[22] Court rules and applicable statutes require the court to appoint another person as guardian ad litem for the child.[23] An attorney who perceives a conflict between his role as counsel and as guardian ad litem is expressly instructed to notify the court of the conflict and seek withdrawal as guardian ad litem.[24] This solution (withdrawal from the guardian ad litem role once it conflicts with the role as counsel) is in accord with an attorney's duty to the client.[25]
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