Ethically Speaking
| Jurisdiction | Wyoming,United States |
| Citation | Vol. 37 No. 3 Pg. 48 |
| Pages | 48 |
| Publication year | 2014 |
John M. Burman, Emeritus Carl M. Williams Professor of Law & Ethics University of Wyoming College of Law.
A Lawyer as a Representative Part Via: Guardians Ad Litem
Alarge percentage of the cases filed in Wyoming's District Courts, possibly over half, are family matters, often involving the custody of minor children. If custody becomes disputed, many judges appoint a lawyer to act as guardian ad litem ("'GAL") for the children. Also, in most juvenile cases, a lawyer is appointed as a GAL for the juvenile. Both lawyers and judges need to know about the different roles, ethically and otherwise, that GALs play This column and the next one will look only at the ethical issues, as the other differences would fill a book.[1]
As the possibility of a lawyer acting as a GAL is quite high, and the power of GALs is immense, knowing about their different ethical duties is important. Fortunately, the Wyoming Rules provide some guidance.
In 2002, amendments relating to GALs were made to the Wyoming Rules. Those amendments were the result of proposals from the GAL Committee. The rule changes are both unique and important. This column, and the next, provides background to the GAL Committee recommendations and attempts to explain how those amendments affect Wyoming lawyers.[2]
Four years earlier, in 1998, the Wyoming Supreme Court issued Clark v. Alexander,[3] the first opinion that addressed some of the issues surrounding GALs. The court adopted the "hybrid" model.[4] One person acts as lawyer and GAL. A problem with that model is that the rules, as then in existence, created difficulties for lawyers acting as GALs: "we . . . acknowledge the 'hybrid' nature of the role of attorney/guardian ad litem . . . necessitates a modified application of the Rules of Professional Conduct."[5] The Rules, according to the court, "require compromise" in order for a lawyer to fulfill the dual role of lawyer/guardian ad litem.[6] How to compromise was not answered, though the court mentioned Rules 1.2 (Allocation of authority), 1.4 (Communication), and 1.6 (Confidentiality) as being among the problematical ones. As described in the next column, all were changed.
In Clark, the court provided important guidance for GALs. It noted, however, that "[i]n Wyoming, the role of. . . [a] guardian ad litem in custody cases is not addressed by statute [and] . . . case law had failed to clearly delineate the parameters of the duties incumbent upon" GALs:[7]
Our decision here does not address many areas of chronic confusion in the appointment of a guardian ad litem . . . we urge our courts, legislators, professionals, and concerned citizens to undertake a consolidated effort to address the appointment of counsel and guardians ad litem for Wyoming's children.[8]
In response, the GAL Committee was formed by the Joint Judiciary Committee. It was charged with reviewing the existing statutes and rules regarding guardians ad litem and proposing changes. Among the recommendations of the GAL Committee were changes to the Rules.
Shortly after the GAL Committee was formed, the court again confronted the issue of the proper role of a GAL in Pace v. Pace.[9] The labors of the GAL Committee had yet to bear fruit, and the court spoke again of the need to clarify the role of and develop standards for GALs:
We reiterate our plea briefly stated in Clark .... [W]e urge our courts, legislators, professionals, and concerned citizens to undertake a consolidated effort to address the appointment of counsel and guardians ad litem for Wyoming's children.[10]
In 2001, the GAL Committee proposed amendments to the Rules, to begin to address the myriad questions surrounding GALs. In particular, the proposed amendments were aimed at clarifying that a lawyer appointed as a GAL represents the best interests of the individual, rather than the individual's preferences.
The Role of a Guardian ad Litem
Normally a lawyer represents clients. Accordingly, "[the] lawyer shall abide by client's decisions concerning the objectives of the representation . . . ."[11] Those objectives should be determined, however, only after the lawyer has provided the client with an informed understanding of his or her legal rights, as well as their practical implications. To that end, " [a] lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation . . . ."[12] The assumption is that, "the client, when properly advised and assisted, is capable of making decisions about important matters."[13] That...
To continue reading
Request your trial