Notices
| Citation | Vol. 22 No. 1 Pg. 0086 |
| Pages | 0086 |
| Publication year | 2016 |
Notice of Filing of Formal Advisory Opinion in Supreme Court
Second Publication of Proposed Redrafted Formal Advisory Opinion No. 10-2 Hereinafter known as “Formal Advisory Opinion No. 16-2”
Members of the State Bar of Georgia are hereby NOTIFIED that the Formal Advisory Opinion Board has issued the following Formal Advisory Opinion, pursuant to the provisions of Rule 4-403(d) of Chapter 4 of the Rules and Regulations of the State Bar of Georgia approved by order of the Supreme Court of Georgia on May 1, 2002. This opinion will be filed with the Supreme Court of Georgia on or after August 31, 2016.
Rule 4-403(d) states that within 20 days of the filing of the Formal Advisory Opinion or the date the publication is mailed to the members of the Bar, whichever is later, only the State Bar of Georgia or the person who requested the opinion may file a petition for discretionary review thereof with the Supreme Court of Georgia. The petition shall designate the Formal Advisory Opinion sought to be reviewed and shall concisely state the manner in which the petitioner is aggrieved. If the Supreme Court grants the petition for discretionary review or decides to review the opinion on its own motion, the record shall consist of the comments received by the Formal Advisory Opinion Board from members of the Bar. The State Bar of Georgia and the person requesting the opinion shall follow the briefing schedule set forth in Supreme Court Rule 10, counting from the date of the order granting review. A copy of the petition filed with the Supreme Court of Georgia pursuant to Rule 4-403(d) must be simultaneously served upon the Formal Advisory Opinion Board through the Office of the General Counsel of the State Bar or Georgia. The final determination may be either by written opinion or by order of the Supreme Court and shall state whether the Formal Advisory Opinion is approved, modified, or disapproved, or shall provide for such other final disposition as is appropriate.
In accordance with Rule 4-223(a) of the Rules and Regulations of the State Bar of Georgia, any Formal Advisory Opinion issued pursuant to Rule 4-403 which is not thereafter disapproved by the Supreme Court of Georgia shall be binding on the State Bar of Georgia, the State Disciplinary Board, and the person who requested the opinion, in any subsequent disciplinary proceeding involving that person.
Pursuant to Rule 4-403(e) of Chapter 4 of the Rules and Regulations of the State Bar of Georgia, if the Supreme Court of Georgia declines to review the Formal Advisory Opinion, it shall be binding only on the State Bar of Georgia and the person who requested the opinion, and not on the Supreme Court, which shall treat the opinion as persuasive authority only. If the Supreme Court grants review and disapproves the opinion, it shall have absolutely no effect and shall not constitute either persuasive or binding authority. If the Supreme Court approves or modifies the opinion, it shall be binding on all members of the State Bar and shall be published in the official Georgia Court and Bar Rules manual. The Supreme Court shall accord such approved or modified opinion the same precedential authority given to the regularly published judicial opinions of the Court.
Proposed Redrafted Formal Advisory Opinion No. 10-2 Hereinafter known as “Formal Advisory Opinion No. 16-2”
STATE BAR OF GEORGIA ISSUED BY THE FORMAL ADVISORY OPINION BOARD PURSUANT TO RULE 4-403 ON JUNE 14, 2016 FORMAL ADVISORY OPINION NO. 16-2 (Redrafted Version of Formal Advisory Opinion No. 10-2)
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 diminished capacity, 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 2 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]
This situation also 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. Finally, 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 shall additionally appoint a guardian ad litem for the child, and that the child’s counsel is eligible to serve as the guardian ad litem unless there is a conflict of interest between the lawyer’s duty as an attorney for the child and the lawyer’s “considered opinion” of the child’s best interest 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) (the predecessor to O.C.G.A. § 15-11-262(d)) 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. § 15-11-262(d) 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 must petition the court for removal as the child’s guardian ad litem. The attorney must consider Rule 1.6 before disclosing any confidential client information other than that there is a conflict which requires such removal. 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 under Rule 1.16(b)(3).[14]
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 owe a continuing duty of confidentiality.[15]
This conclusion is in accord with many other states.[16] For instance, Ohio permits an attorney to be appointed both as a child’s counsel and as the child’s guardian ad litem.[17] 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.[18] Court rules and applicable statutes require the court to appoint another person as guardian ad litem for the child.[19] 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.[20] 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.[21]
Connecticut’s Bar Association provided similar advice to its attorneys, and Connecticut’s legislature subsequently codified that position into law.[22]...
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