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 98-02
An attorney is appointed to be a guardian ad litem for a child in a family court case. The child talks with the guardian ad litem and discusses the case. The child wants the guardian ad litem to advocate a position that the guardian does not believe to be in the best interests of the child.
QUESTIONS:
1. As long as the attorney maintains a strict guardian ad litem role and does not act as an attorney, may he or she reveal the confidences of the child?
2. What actions by the attorney acting as a guardian ad litem would cause that role to alter, thereby creating an attorney-client relationship?
SUMMARY:
1. Yes. A guardian, not acting also as the attorney for the ward, may reveal confidences of the child to the court as necessary to carry out the functions of the guardianship or to protect the interests of the child.
2. It is impossible to define what events may create an attorney/client relationship. In the present inquiry, however, clearly an attorney/client relationship would be created at such time as the position of the ward was advocated to the court by the guardian.
OPINION:
(As recognized in this Committee's Opinion 97-15, "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, S.C. ,395 S.E.2d 441(Ct. App. 1990). "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 do so." Fleming v. Asbill, S.C. , 483 S.E.2d 751 (1997) (citations omitted). In the instant inquiry, the nature of the "confidences of the child" in danger of being revealed is unclear. It is the duty of the guardian to act in the best interest of the child. This duty cannot be jeopardized by a child who wishes the guardian to advocate a position not in that child's best interests. Such a scenario would undermine the very purpose of the appointment of the guardian. The guardian must, therefore, protect the child's interests, even if it means divulging information the child would prefer was not known. With respect to the second question of the inquiry, it is the opinion of the Committee that even if attorney may be called upon by the court to act as an advocate for the child, such a role would not conflict with the best interests of the child. The attorney represents the guardian ad litem rather than the child directly. Because the child lacks the capacity to make decisions for him or herself, he or she cannot directly enter into an attorney-client relationship. As we noted in Opinion 83-14, "[t]he guardian ad litem can determine what is in the best interest of the alleged incompetent that he represents and then, as his attorney, actively advocate that position. We recognize that there are circumstances that create a conflict between the roles of a guardian ad litem and an attorney. If at the outset, it appears that it will be precarious for an individual to serve in both capacities, then the attorneys or the court should divide the responsibilities." Such a conflict arose in Opinion 91-26, where an attorney was both guardian ad litem and advocate in a potential involuntary commitment proceeding. The Committee noted Rule 3.7 of the Rules of Professional Conduct does not allow an attorney to act as witness and advocate. "If the attorney will likely be a witness as to his findings while serving as guardian ad litem, he is disqualified to serve as counsel of a minor during judicial or emergency commitment proceedings." S.C. Bar Eth. Adv. Op. 91-26. See also, S. C. Code Ann. Section 20-7-110(1) ("Children must be appointed legal counsel and a guardian ad litem by the family court." (emphasis added)).