Notice
| Publication year | 2012 |
| Pages | 0066 |
Formal Advisory Opinion Issued Pursuant to Rule 4-403(d)
The second publication of this opinion appeared in the December 2010 issue of the Georgia Bar Journal, which was mailed to the members of the State Bar of Georgia on or about Dec. 14, 2010. The opinion was filed with the Supreme Court of Georgia on Jan. 18, 2011. The State Bar of Georgia and the requestor each filed a Petition for Discretionary Review with the Supreme Court of Georgia pursuant to Rule 4-403(d), which the Supreme Court granted on March 3, 2011. On January 9, 2012, the Supreme Court of Georgia issued an Order approving Formal Advisory Opinion No. 10-2. Following is the full text of the opinion. In accordance with Bar Rule 4-403(e), this opinion is binding upon all members of the State Bar of Georgia, and the Supreme Court shall accord this opinion the same precedential authority given to the regularly published judicial opinions of the Court.
FORMAL ADVISORY OPINION NO. 10-2 Approved And Issued On January 9, 2012 Pursuant to Bar Rule 4-403
By Order of The Supreme Court of Georgia Supreme Court Docket No. S11U0730
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, particularly, 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]...
To continue reading
Request your trial