Ethically Speaking
| Jurisdiction | Wyoming,United States |
| Citation | Vol. 37 No. 4 Pg. 50 |
| Pages | 50 |
| 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 IVb: Guardians Ad Litem
The last Ethically Speaking column ended with: "[w]hen a lawyer acts as a [Guardian ad Litem] GAL, the lawyers ethical duties shift. Fortunately the "Wyoming Rules of Professional Conduct" [the Rules], unlike the Model Rules [of Professional Conduct], describe those changes."[1] This column is about those changes.
The Background
As the June column explained, the law about GALs in Wyoming is less clear than it should be. As a result, Wyoming lawyers have had inadequate guidance.
The Wyoming Supreme Court's holdings in Clark[2] and Pace,[3] adopting the hybrid model of lawyer-GAL, answered a few questions, but raised more. Perhaps most significantly, the decisions did not clearly answer the fundamental question of whether a GAL represents the best interests of the individual, or that individual's interests, i.e., what he or she wants. The potential conflict is apparent. Answering that question was a key issue the GAL Committee, appointed by the Joint Judiciary Committee, sought to answer.[4] The "answer" came in 2002, as proposed changes to the Rules, which were ultimately adopted, and then modified slightly when the Rules were significantly revised in 2006.
The 2002 Amendments, as Modified in 2006
The first change was to the Preamble (the Preamble provides "general orientation" to the Rules[5] ), which describes the roles a lawyer may play (¶ 2). Although changed slightly in 2006, the 2002 amendments made important changes to that paragraph, changes that remain in effect. In addition to acting as advisor, advocate, negotiator, intermediary[6] and evaluator, a lawyer may play a very different role as a GAL. "As a guardian ad litem," according to the Preamble, "a lawyer represents the best interests of the individual for whom the lawyer has been appointed to act, and the lawyer's obligations pursuant to these rules shift accordingly"[7]
The second part of the change, "the lawyer's obligations pursuant to these rules shift accordingly," indicates that a lawyer appointed as a GAL has different ethical responsibilities. Those differences are reflected in the changes which are discussed below.
Rule 1.2 is entitled "Scope of representation and allocation of authority between client and lawyer? Among other things, the Rule describes the division of responsibility between a lawyer and the lawyer's client. Generally, a lawyer "shall abide by a client's decisions concerning the objectives of representation," subject to paragraphs (c), (d), and (e), and shall consult with the client as to the means by which they are to be pursued.[8] That general rule is "subject to" paragraph (e), among other things, which was initially adopted in 2002 as 1.2(f), and has, since 2006, been 1.2(e). That paragraph makes it plain that a different standard applies when a lawyer is a GAL:
When a lawyer is appointed to act as a guardian ad litem, the lawyer shall represent what he or she reasonably believes to be in the best interests of the individual. The lawyer shall not, therefore, be bound by the individual's objectives for the representation. The lawyer shall, however, consult with the individual, in a manner appropriate to the age and/ or abilities of the individual, as to the objectives the lawyer intends to pursue, as well as the means by which those objectives will be pursued.[9]
The amendment, now 1.2(e), contains four important changes, each of which is in bold. First, the lawyer is to act based on his or her "reasonable belief." That term is defined to mean that "the lawyer believes the matter in question and that the circumstances are such that the belief is reasonable."[10] The lawyer must, in other words, subjectively believe that some action is in the person's best interests, and that belief must be the objectively reasonable belief of the proverbial reasonable lawyer.
The second and third changes are intertwined. A GAL must advocate "the best interests" of the individual. In doing so, the lawyer "is not bound" by the client's objectives, as a lawyer normally is.
While "best interests" is not defined by the...
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