Virginia Lawyers Weekly

A new Legal Ethics Opinion from the Virginia State Bar lays out the ethical duties of a guardian ad litem to report suspected child abuse or neglect.

The LEO is a response to an effort in the 2008 General Assembly to add guardians to the statutory list of persons who must report such activity.

Sen. Stephen H. Martin, R-Chesterfield, introduced a bill this past winter to include GALs among the professionals and individuals who must report suspected abuse to the state.

Virginia Code § 63.2-1509 requires “physicians, nurses, teachers, etc.” to report suspicion of abuse or neglect to the Department of Social Services. The “etc.” already encompasses, among others, mental health professionals, social workers, child care employees and law enforcement and probation officers. Martin’s measure would have made the statute apply to “[A]ny guardian ad litem appointed by a court to represent a child.”

Senate Bill 387 was carried over to the 2009 session of the legislature with the understanding that a legal ethics opinion would be sought on the issue, according to Lelia Baum Hopper, director of the court improvement program for the Supreme Court of Virginia. The Supreme Court opposed the legislation.

The court has established qualifications and performance standards that an attorney must meet to be appointed as a GAL.
In the hypothetical addressed in proposed LEO 1844, the parents of a 7-year-old girl are involved in a contentious custody and visitation dispute. The mother asserts that the father is abusing the child and that the child does not want to visit him. The father denies any abuse and contends that the mother is using the allegation to deprive him of custody and visitation.

The child tells the GAL that she is afraid of her father and does not want to visit him but asks the attorney not to repeat what she says because she is afraid her parents might get angry with her.

The hypothetical asks what obligation the attorney has to keep the child’s comments confidential in light of Rule 1.6 of the Code of Professional Conduct and Rule 8:6 of the Rules of the Supreme Court of Virginia.

The LEO concludes that the GAL must make a thorough investigation of the circumstances and arrive at an independent evaluation of the risk of probable harm to the child. “That assessment then leads to the determination of whether the GAL has a duty, as an advocate for the child’s best interests, to disclose to the court or appropriate authority information necessary to safeguard the best interests of the child.”

Hopper said the proposed LEO “is a cogent statement of what the [GAL’s] responsibilities are” and “what the practice is and should be.”

Efforts to reach Martin for comment on the LEO and on his plans for pursuing the legislation were unsuccessful.

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