UPON THE REQUEST OF A MEMBER OF THE SOUTH CAROLINA BAR, THE ETHICS ADVISORY COMMITTEE HAS RENDERED THIS OPINION ON THE ETHICAL PROPRIETY OF THE INQUIRER’S CONTEMPLATED CONDUCT. THIS COMMITTEE HAS NO DISCIPLINARY AUTHORITY. LAWYER DISCIPLINE IS ADMINISTERED SOLELY BY THE SOUTH CAROLINA SUPREME COURT THROUGH ITS COMMISSION ON LAWYER CONDUCT.
Ethics Advisory Opinion 97-15
There is a family court child abuse investigation/court proceeding involving allegations that parents abused their minor children. Each parent has a lawyer, the children have a guardian ad litem, and the children's guardian ad litem has a lawyer. The children do not have a lawyer. One of the minor children, a teenager, goes to the office of parent's lawyer and wants to give a statement recanting her earlier statement against her parents.
QUESTIONS:
(1) Can the lawyer talk to the child?
(2) If so, before he talks to the child, does he have to notify counsel for either the guardian ad litem, the parents, or the state handling the matter in family court?
(3) Does he have to have the guardian ad litem present when he talks to the child?
SUMMARY:
Under Rule 4.2, parent's lawyer must notify the guardian ad litem and her or his counsel and gain consent prior to communicating with the child.
OPINION:
Rule of Professional Conduct 4.2 states:
In representing a client, a lawyer shall not communicate about the subject of the representation with a party the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized by law to do so.
In the instant inquiry, the child at issue is not directly represented by counsel. The court, however, has appointed a guardian ad litem to represent the interests of the child. That guardian is represented by counsel.
Section 20-7-110(1) of the Children's Code provides that in all child abuse and neglect proceedings, "Children must be appointed legal counsel and a guardian ad litem by the family court. Counsel for the child in no case may be the same as counsel for the parent, guardian, or other person subject to the proceeding or any governmental or social agency involved in the proceeding." SC Code Ann. Section 20-7-110(1) (1996 Cum. Supp.). It appears from the facts set forth in the inquiry that the family court has not appointed the children with separate counsel as required by the Children's Code.
A mechanical application of Rule of Professional Conduct 4.2 would result in parent's lawyer freely communicating with child without violating the Rule. Such an application is, however, disingenuous. It is the opinion of the Committee that the child in this scenario must be considered to be represented by counsel, and any direct communication would violate Rule 4.2.
"A guardian ad litem is a representative of the court appointed to assist it in properly protecting the interest of an incompetent person." Shainwald v. Shainwald, 395 S.E.2d 441,444 (S.C. App, 1990). Further, "[t]he requirement that the children have independent legal representation....reflects the conviction that the children are best served by the presence of a vigorous advocate free to investigate, consult with them at length, marshall evidence, and to subpoena and cross-examine witnesses." Id. Simply put, "the duty of a guardian ad litem or next friend is to look after the infant's interest and to act for him in all matters relating to the suit as he might act for himself if he were of capacity to so do." Fleming v. Asbill, 483 S.E.2d 751,754 (S.C. 1997) (citations omitted).
The child in this inquiry does not have the legal capacity to represent itself. The guardian has been appointed to represent the interests of the child in the family court proceeding. Because the interests of the child are represented by counsel (through the guardian ad litem), and the Children's Code also requires that independent counsel be appointed to the child, parent's lawyer would violate Rule 4.2 in communicating with child. Notably, this prohibition against contact without notification and consent of counsel cannot be waived by the child in initiating the contact. See ABA Formal Opinion 95-396 at Part VII.
It is the opinion of this Committee that parent's lawyer must, at a minimum, notify the guardian ad litem and the guardian's counsel and gain consent prior to communicating with child.