| LEO Num | Topics | Summary | Date |
1893
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| (Minor children pursue lawsuits through a "next friend" (typically the child's parent or guardian) acting in the child's name. A lawyer representing such a "next friend" takes direction from the "next friend," although the lawyer represents the child rather than the "next friend." A parent or other such "next friend" should "frequently reassess potential conflict throughout the representation" —because (among other things) the lawyer may desire to protect the parent's lien from medical expenses incurred on the child's behalf, which will be paid out of the child's recovery against the tortfeasor. A conflict might arise if the parent wishes to settle a child's claim for an amount that will satisfy such a lien, but might not maximize the child's recovery. If the "next friend" is the child's parent or guardian, the lawyer "may presume" that the "next friend" is acting in the child's best interest, unless the lawyer "has reason to believe" otherwise. If the "next friend" is not the child's parent or guardian, such a presumption does not exist. If a conflict arises, the lawyer cannot obtain the necessary consent from the child or from the conflicted "next friend." In that situation, the lawyer may seek a guardian ad litem's appointment or judicial approval of an infant settlement — and the lawyer "must advise the parent to seek independent counsel." In other situations involving a conflict, the lawyer may petition the court to appoint a substitute "next friend." | 4/12/2023 |
1844
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| A lawyer acting as a guardian ad litem for a 7-year-old girl (who has asked the lawyer not to disclose her father's abusive behavior -- which the father denies) must balance the duty of confidentiality with his role as a GAL under Virginia Supreme Court Rule 8:6. "[L]awyers serving as GALs are subject to the Rules of Professional Conduct as they would be in any other case, except when the special duties of a GAL conflict with such rules," and must generally protect the child's confidences. However, the GAL's compliance with Supreme Court Rule 8:6 and the Standards governing GALs "may justify the disclosure of confidential information "pursuant to Rule 1.6(b)(1) which allows the disclosure of confidences "to comply with law or a court order." For example, "the GAL may learn from the child that a custodian is taking illegal drugs and may use that information to request that the court order drug testing of the custodian." Because "the GAL not only serves as the child's advocate but is obliged to identify and recommend the outcome that best serves the child's interests," the GAL "needs to investigate information obtained from and about the child in order to ascertain certain facts," after which the GAL can assess "the risk of probable harm to the child" and then determine "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. That disclosure would be permitted in light of the Committee's analysis earlier in this opinion of Rule 1.6(b)(1), where a lawyer can reveal protected information to the extent reasonably necessary to comply with law." | 12/18/2008 |
1617
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| A lawyer acting as an executor, trustee, guardian, attorney-in-fact or other fiduciary is bound by the Code. In discussing a lawyer's duty to render accountings, the Bar concludes that the duty varies with the type of fiduciary relationship. However, the duty of accounting may not be waived. | 2/17/1995 |
1626
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| A lawyer acting as guardian ad litem for a child in a custody dispute may later represent the Department of Social Services in an appeal of a J&DR court ruling, because "there is an identity of interest between Child and the Department." | 2/17/1995 |
1894
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| A lawyer faces several conflicts issues if she jointly represents multiple children who might have been abused at a childcare center, especially if there is only a limited insurance fund to pay all of the claimant clients. As “next friend” of each child, a parent can consent to such a joint representation. If there is only a limited fund available to settle all of the case, the settlement must comply with Rule 1.8(g)’s “aggregate settlement” rule - including a unanimous agreement among all the clients about “how the settlement is allocated and what amount shall be distributed to each.” In such an “aggregate settlement” situation, the lawyer may not participate in such an aggregate settlement if even one client disagrees with the settlement. To obtain court approval of the settlement, a guardian ad litem (GAL) must be appointed for the minor children. Such GALs are subject to the Virginia ethics rules “as they would be in any other case, except when the special duties of a GAL conflict with such rules.” If there is a limited fund for an aggregate settlement, the GAL must agree with that arrangement. A GAL “must be appointed to waive the lawyer’s conflict in representing multiple children.” A single GAL may represent all of the minor children, because a court has “[t]he final decision as to the division of the settlement proceeds or recovery.” A GAL must also be appointed if the efforts fail and litigation begins. | 4/20/2022 |
1810
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| A lawyer may act as a guardian ad litem for a child even though the lawyer previously practiced in the same law firm as another lawyer now representing the husband in a custody dispute in which the lawyer serves as the child's guardian ad litem, because the lawyer acting as guardian ad litem "did no work on the matter and learned no information about it" while the lawyer was at that firm; although the lawyer did not need consent to proceed, any possibly required consent would have to come from the court rather than from the wife/mother. | 12/10/2004 |
0608
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| A lawyer may act as a guardian ad litem in a mental health commitment hearing even if the lawyer's wife is the supervisor of a social worker-witness and even if the ward is not capable of giving informed consent. | 9/14/1984 |
0957
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| A lawyer may not continue representing the former executive director of the Department of Social Services in a wrongful discharge action against the Department while also acting as a guardian ad litem for a child whose custody is in dispute because of alleged illegal actions by the former executive director. Although consent might cure this conflict, the lawyer cannot obtain consent from the child. | 8/2/1987 |
1769
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| A lawyer may not represent a client in seeking a guardianship for another client who has become incompetent (the conflict would be imputed to all of the other lawyers with whom the disqualified lawyer practices) -- although under Rule 1.14 the lawyer may on his or her own seek the appointment of a guardian for an incompetent client. | 2/10/2003 |
0857
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| A lawyer may represent someone accused of murdering his sister even though the lawyer had earlier acted as guardian ad litem for the defendant's mother (who was incompetent to testify). | 10/31/1986 |
1870
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| A minor child's guardian ad litem acts as a lawyer when assisting the child, and therefore must consent to ex parte communications with the child by a lawyer representing a parent or guardian. Lawyers serving as guardians ad litem are "subject to the applicable Rules of Professional Conduct governing lawyers unless those ethical obligations are inconsistent with the lawyer's obligations or duties" as a guardian ad litem, so guardians ad litem likewise may not communicate ex parte with represented parent or guardians without their lawyers' consent. Many courts' form orders appointing lawyers as guardian ad litem indicate that they shall have access to parties to any proceeding, but such orders do not allow such lawyers' reliance on the "authorized by law" exception to the general prohibition on ex parte communications. Courts may specifically authorize guardians ad litem to communicate ex parte with parents or guardians. Prosecutors or local government lawyers representing governmental entities may not communicate ex parte with a child represented by a guardian ad litem, and may not "use a social worker, police officer, or other investigator as an intermediary in civil matters" to circumvent Rule 4.2. In such a civil setting, government lawyers do not violate Rule 4.2 "merely by requesting a social worker or investigator to communicate with a represented person" entitled by law to engage in such communications, and may "advise generally what information the lawyer seeks." However, such government lawyers "may not 'mastermind' or 'script' the interview or dictate the content of the communication," because such conduct would violate Rule 8.4(a) by "circumventing Rule 4.2 through the actions of another." The "law enforcement" exception to the ex parte prohibition applies to "investigative contacts related to possible criminal law violations, which means that government lawyers in that criminal setting may "instruct or direct" investigators or agents to communicate ex parte with children represented by guardians ad litem, and "may also give advice regarding the content of the communication with a represented person." | 10/4/2013 |
1463
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| A part-time Assistant Commonwealth's Attorney may act as a guardian ad litem in proceedings before the Juvenile & Domestic Relations Court as long as there are no pending criminal or civil proceedings in which the Commonwealth's Attorney might have to participate. | 6/9/1992 |
1729
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| Although lawyers acting as guardians ad litem generally must comply with the ethics rules, "the relationship of the GAL and child is different from the relationship of attorney and client," and the "specific duty of the guardian ad litem should prevail" if there is any conflict with a lawyer's standard ethics responsibility. A guardian ad litem who must testify on a disputed issue of material fact may continue to represent the child despite the witness-advocate rule, because the lawyer's statutory duty to "advise the court" about the child's interest and welfare trumps the witness-advocate rule (which would otherwise prohibit the guardian's representation of the child in the hearing). | 3/26/1999 |
0607
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| As long as the client consents, a lawyer may be paid by an inmate's wife to act as the inmate's guardian ad litem. | 9/18/1984 |
1831
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| Just as the court appoints a guardian ad litem, so the court must approve payment of the guardian ad litem's fee by a third party such as an insurance carrier (neither the minor nor the guardian can consent to such payment by a third party). Any lawyer paid by a third party must "maintain professional independence from that third party payor" and fulfill the ethical duty of confidentiality to the client. | 9/6/2006 |
1725
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| Lawyers who serve as guardians ad litem must follow the ethics rules "whether or not an attorney-client relationship exists" with the children, and therefore must obtain consent if they will simultaneously be representing the Department for Social Services on some matters and acting as guardians ad litem on other unrelated matters. The lawyers need consent because "even where the legal matters are dissimilar, the simultaneous representation of adverse clients is improper unless the clients consent and waive the conflict." Because the children are incapable of giving consent, a court must grant the consent. | 4/20/1999 |
1893
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| Minor children pursue lawsuits through a "next friend" (typically the child's parent or guardian) acting in the child's name. A lawyer representing such a "next friend" takes direction from the "next friend," although the lawyer represents the child rather than the "next friend." A parent or other such "next friend" should "frequently reassess potential conflict throughout the representation" - because (among other things) the lawyer may desire to protect the parent's lien from medical expenses incurred on the child's behalf, which will be paid out of the child's recovery against the tortfeasor. A conflict might arise if the parent wishes to settle a child's claim for an amount that will satisfy such a lien, but might not maximize the child's recovery. If the "next friend" is the child's parent or guardian, the lawyer "may presume" that the "next friend" is acting in the child's best interest, unless the lawyer "has reason to believe" otherwise. If the "next friend" is not the child's parent or guardian, such a presumption does not exist. If a conflict arises, the lawyer cannot obtain the necessary consent from the child or from the conflicted "next friend." In that situation, the lawyer may seek a guardian ad !item's appointment or judicial approval of an infant settlement - and the lawyer "must advise the parent to seek independent counsel." In other situations involving a conflict, the lawyer may petition the court to appoint a substitute "next friend." | 4/12/2023 |