When a court-appointed guardian ad litem is also a lawyer and is represented by trial counsel, can opposing counsel contact the GAL directly under Rule 4.2?

Plain-English summary

In a medical malpractice action brought for an injured child and the parents, a private lawyer was appointed by the court as guardian ad litem for the minor, and that GAL is represented by the plaintiff-attorneys. At mediation, defense counsel asked to meet privately with the GAL; plaintiff-attorneys refused, citing Rule 4.2(a). Defense counsel argued that, because the GAL is a lawyer who "represents" the child, the GAL must independently evaluate the defense's positions and the plaintiff-attorneys cannot control whether the GAL meets with them. The question is whether a GAL who is a lawyer is still a represented client for Rule 4.2 purposes.

The opinion concludes the GAL is a represented party, not co-counsel. Under N.C. Rule of Civil Procedure 17(a) and (b), a minor's action is brought through a guardian ad litem, and as a party the GAL may choose to be represented by counsel and to let counsel make litigation-strategy decisions (citing Rule 1.2, cmt. [1], on the lawyer's responsibility for technical and tactical means). The fact that the GAL is a lawyer does not convert the GAL into co-counsel. Opposing counsel must therefore comply with Rule 4.2 and respect the GAL's trial counsel's decision to deny a private communication with their client.

The opinion adds that a GAL's role and responsibilities are set by the appointing court, statute, and case law, and are the same whether or not the appointee is a lawyer; but a lawyer-GAL must carry out the GAL role consistent with the Rules of Professional Conduct, meaning the lawyer must be honest, avoid conflicts of interest, and exercise professional judgment on matters within the GAL's purview, such as whether to accept a settlement proposal. On whether a lawyer-GAL represented by separate counsel is entitled to a court-awarded fee, the opinion declines to opine, treating it as a question of law for the court rather than the Ethics Committee.

In practice

Under the North Carolina rules as they stood at the time of the opinion, the analysis turns on the GAL's status as a party rather than as a lawyer in the case. The opinion holds that a lawyer serving as GAL who is represented by counsel is a represented person under Rule 4.2, so opposing counsel needs that counsel's consent to communicate and must honor a refusal of a private meeting.

Per the opinion, the lawyer-GAL must still discharge the GAL role consistent with the Rules, acting honestly, avoiding conflicts, and exercising independent judgment on settlement and other matters within the GAL's purview; whether such a GAL may receive a court-awarded fee is left to the court.

Common questions

Q: Is a guardian ad litem who is a lawyer a represented client for Rule 4.2?

A: Yes. The opinion concludes the GAL is a party who may be represented by counsel, so opposing counsel must comply with Rule 4.2 and not communicate with the GAL without that counsel's consent.

Q: Does the GAL being a lawyer make the GAL co-counsel in the case?

A: No. The opinion concludes the fact that the GAL is a lawyer does not make him or her co-counsel for litigating the case.

Q: Can opposing counsel insist on meeting privately with the GAL?

A: No. The opinion concludes opposing counsel must respect the decision of the GAL's trial counsel to deny a request to communicate privately with their client.

Q: What duties does a lawyer serving as GAL still owe?

A: The opinion concludes the lawyer-GAL must fulfill the GAL role consistent with the Rules, being honest, avoiding conflicts of interest, and exercising professional judgment on matters within the GAL's purview, such as settlement decisions.

Background and rules framework

The opinion interprets Rule 4.2(a) (no communication with a represented person without the consent of that person's counsel, corresponding to Model Rule 4.2) as applied to a guardian ad litem who is represented by trial counsel. It draws on Rule 1.2 and its comment [1] (allocation of authority; the lawyer's responsibility for technical and tactical means, corresponding to Model Rule 1.2), and on N.C. Rule of Civil Procedure 17 governing the GAL's role.

Citations and references

Rules of Professional Conduct:

• MR 4.2 / NC Rule 4.2(a) (communication with a represented person)
• MR 1.2 / NC Rule 1.2, cmt. [1] (lawyer's responsibility for technical and tactical means)

Statutes and rules:

• N.C. Gen. Stat. §1A-1, Rule 17(a), (b) (real party in interest; guardian ad litem for a minor)
• Rule .0102(g), 27 N.C.A.C. 1D, Section .0100 (the Ethics Committee does not opine on questions of law)

Cases:

• Satler v. Purser, 12 N.C. App. 206, 182 S.E.2d 850 (1971), guardian ad litem role.

See also

• NC State Bar 2004 FEO 11: Lawyer Appointed as Guardian Ad Litem
• NC State Bar 2006 FEO 19: Communication by a Guardian Ad Litem With a Represented Person
• NC State Bar 2022 FEO 1: Attorney Serving Dual Role of Guardian Ad Litem and Advocate
• DC Bar Op. 295: Communication Restrictions on a Lawyer Acting as Guardian Ad Litem

Source

• Landing page: https://www.ncbar.gov/for-lawyers/ethics-and-governing-rules/ethics-opinions/opinions/2002-formal-ethics-opinion-8/

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Inquiry #1:

An action alleging medical malpractice was brought on behalf of Child, who was injured, and Child's Mother and Father. Plaintiff-Attorneys represent Child, Mother, and Father. The defendants are represented by Defense-Attorneys. A private lawyer (Guardian Ad Litem) was appointed by the court to serve as guardian ad litem for the minor. At mediation, Defense-Attorneys asked to meet privately with Guardian Ad Litem to discuss Child's case. Plaintiff-Attorneys denied the request, maintaining that Guardian Ad Litem is their client and, pursuant to Rule 4.2(a) of the Rules of Professional Conduct, Defense-Attorneys may not communicate with their represented client without their consent. Defense-Attorneys contend that, as a lawyer, Guardian Ad Litem "represents" Child and, therefore, has a professional responsibility to exercise independent professional judgment on behalf of Child, which includes making an independent inquiry of Defense-Attorneys' proposals and positions. Defense-Attorneys further contend that Plaintiff-Attorneys may not interfere with Guardian Ad Litem's decision on whether to communicate privately with Defense-Attorneys.

If a guardian ad litem is a lawyer, is he or she still a client represented by counsel for the purposes of Rule 4.2, thus prohibiting direct contact by opposing counsel without consent of the guardian ad litem's lawyer?

Opinion #1:

Rule 17(a) and (b) of the North Carolina Rules of Civil Procedure require an action to be brought by the "real party in interest" and, in the case of a minor, by a general guardian or, if there is none, by an appointed guardian ad litem. As a party, the guardian ad litem may choose to be represented by legal counsel and permit legal counsel to make decisions about the strategy for the litigation. See Rule of Professional Conduct 1.2, cmt. [1] ("In questions of means, the lawyer should assume responsibility for technical and legal tactical issues...."). The fact that the guardian ad litem is a lawyer does not make him or her co-counsel for the purpose of litigating the case. Therefore, opposing counsel must comply with Rule 4.2 and respect the decision of the guardian ad litem's trial counsel to deny a request to communicate privately with their client, the guardian ad litem.

The role and responsibilities of a guardian ad litem are established by the court making the appointment as well as by statute and case law. See, e.g. , N.C.G.S. 1A-1, Rule 17; Satler v. Purser, 12 NC App 206, 182 SE 2d 850 (1971). These remain the same whether the person appointed is a lawyer or not. Nevertheless, if a lawyer is appointed, he or she must fulfill the responsibilities of the guardian ad litem in a manner that is consistent with the requirements of the Rules of Professional Conduct. This means that the lawyer must be honest, avoid conflicts of interest, and exercise professional judgment in making decisions about matters that are within the purview of the guardian ad litem such as whether a settlement proposal should be accepted.

Inquiry #2:

If separate legal counsel represents a guardian ad litem who is a lawyer, is the guardian ad litem entitled to a court-awarded attorney's fee?

Opinion #2:

Whether a guardian ad litem who is a lawyer is entitled to a court-awarded fee is a question for the court and not for the Ethics Committee. See Rule .0102(g) of the Procedures for Ruling on Questions of Legal Ethics, 27 N.C.A.C. 1D, Section .0100 (Ethics Committee generally does not respond to inquiries that seek opinions on issues of law).