Notice

• Citation: Vol. 23 No. 7 Pg. 0084
• Pages: 0084
• Publication year: 2018

Notice Vol. 23 No. 7 Pg. 84 Georgia Bar Journal June, 2018

Formal Advisory Opinion Issued Pursuant to Rule 4-403

The second publication of this opinion appeared in the August 2016 issue of the Georgia Bar Journal, which was mailed to the members of the State Bar of Georgia on or about August 8, 2016. FAO No. 16-2 is the redrafted version of FAO No. 10-2. FAO No. 16-2 was filed with the Supreme Court of Georgia on November 10, 2016. A petition for discretionary review was filed with the Supreme Court of Georgia on November 29, 2016, which the Court granted on January 23, 2017. On April 16, 2018, the Supreme Court of Georgia issued an order approving FAO No. 16-2 and retracting FAO No. 10-2. In accordance with Rule 4-403 (e) FAO No. 16-2 is binding upon all members of the State Bar of Georgia, and the Supreme Court of Georgia shall accord the opinion the same precedential authority given to the regularly published judicial opinions of the Court.

STATE BAR OF GEORGIA FORMAL ADVISORY OPINION NO. 16-2

Approved And Issued On April 16, 2018 Pursuant to Bar

Rule 4-403 By Order of the Supreme Court of Georgia

Thereby Replacing FAO No. 10-2

Supreme Court Docket No. S17U0553

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...