A proposed Virginia State Bar Legal Ethics Opinion has drawn fire from lawyers who work in juvenile and domestic relations courts.
Under proposed LEO 1870, a child is considered to be “represented” by a guardian ad litem when lawyers try to gather information from parties in a case.
Rule 4.2 of the Rules of Professional Conduct, generally barring lawyers from talking with someone represented by another lawyer, would apply once a GAL is appointed to represent a child.
That would mean that other lawyers could not talk with a child without approval from the GAL or the court. It might also block the GAL from talking directly with the child’s parents if they had their own lawyers. Local government attorneys could not direct social workers to talk to a child without the okay of the GAL or the judge, according to a VSB summary of the proposed LEO.
When the VSB put the proposal out for comment, the bar got an earful. Local government attorneys, lawyers who serve as GALs for children and a prosecutor all protested that the proposed LEO would cramp the fact-finding process and change the role of the GAL from an independent advocate for the child’s best interest to an adversarial lawyer.
“They may not be familiar with the day-to-day realities of representing juveniles,” said Manassas city attorney Martin R. Crim in an interview about the proposal from the VSB’s Standing Committee on Legal Ethics.
The proposed opinion ignores the real world of court cases involving child welfare, said lawyers who commented to the VSB.
Guardians ad litem are often appointed promptly in cases of alleged child abuse and neglect, reported Meghan S. Roberts, an assistant city attorney in Alexandria. To have to ask permission before interviewing the alleged victim would needlessly hamper a proper investigation, she said.
“A LEO that might hinder free discourse between the child and worker would not be in the best interest of the child,” Roberts wrote. “We are also concerned this opinion essentially undermines the statutory authority given to CPS investigators – for the purpose of assuring child safety.”
The opinion misconstrues the relationship between local government lawyers and social workers, said Crim in comments to the committee. “Social workers are not alter egos of DSS attorneys,” he wrote.
Such an opinion would effectively halt the delivery of child welfare services in many localities, wrote Campbell county attorney David W. Shreve. “Social Workers simply cannot communicate with a Guardian ad litem each time they need to communicate with a child,” he said.
Moreover, the proposed LEO would turn a GAL from an “independent party” to an adverse party, said Wilfredo Bonilla Jr. and Ryan C. Samuel, both assistant city attorneys in Chesapeake.
The roles of GAL for a child and attorney for a child are separate and distinct under Virginia law, the two argue. Making the GAL into a lawyer for the child would cramp the GAL’s own investigation and result in the child’s best interest not being represented, Bonilla and Samuel said.
The GAL should have a free hand to investigate and advise the court, said Barbara S. Jenkins of Charlottesville, who practices as a GAL. Giving parents’ lawyers control over communications bogs down the process, she said.
“Almost all attorneys realize how important it is for the GAL to be able to obtain a complete picture of the family in order to give the court wise recommendations,” she wrote. “Only once in my 12 years of practicing as a GAL has an attorney elected to be present during the home visit and instructed his client not to speak to me without his being present.”
The result was an awkward and unpleasant interview, Jenkins said, because of the adversarial atmosphere.
In Virginia, the duties of a GAL stretch beyond those anticipated in the typical lawyer-client relationship, argued J. Michael Sharman of Culpeper. The proposed LEO “would instantly and automatically convert the role of the child’s guardian ad litem to one of a mere civil counsel for the child,” Sharman wrote.
One prosecutor added his voice in opposition. Thomas G. Smith, an assistant commonwealth’s attorney in Culpeper County, contended prosecutors would have their hands tied in investigations of crimes against children if they had to get approval to talk to the child.
The prosecutor “is in no way in an adversarial role toward the victim or witness,” Smith wrote.
The VSB legal ethics committee was to meet Thursday to consider the comments on proposed LEO 1870.
“I am hoping they will make some changes to it to recognize the special role of a guardian ad litem for a child,” Crim said.