Is a North Carolina lawyer appointed only as a parent's guardian ad litem bound by the Rules of Professional Conduct, and what changes if the same lawyer is also the parent's counsel?

Plain-English summary

A lawyer is appointed guardian ad litem for a respondent parent with diminished capacity in a Termination of Parental Rights action; the indigent parent also has separate appointed counsel. In In re Shepard, the court of appeals held that in a TPR action based on parental incapability, a parent's GAL who is a lawyer but is not providing legal representation may testify about parental capability, even against the ward's interest at the termination hearing, reasoning that the Rules of Professional Conduct do not appear to govern a GAL acting purely as a guardian.

On whether a lawyer appointed solely as GAL is governed by the Rules, the opinion concludes the GAL has no client-lawyer relationship with the parent and so is not governed by the Rules that create duties owed to clients (such as confidentiality), citing RPC 249. Some rules still apply outside the professional relationship (for example, Rule 8.4 reaches dishonesty in a business transaction), but the client-duty rules do not. The opinion adds it may be prudent for the GAL to explain to the parent that the GAL is not acting as the parent's lawyer.

On a lawyer appointed as both counsel and GAL, the opinion concludes the lawyer must comply with Rule 1.6 and keep communications confidential. On conflicts, the opinion concludes that if the GAL role is limited to safeguarding the parent's procedural due process, that role is consistent with representing the parent and creates no conflict of interest, while expressly taking no position on whether an expanded GAL role could produce a conflict.

On the practical tension when the parent has separate counsel, the opinion declines to opine on how the GAL performs guardian duties (those are not lawyer duties to a client), but concludes the parent's lawyer may, after informing the parent that the GAL owes no duty of confidentiality and could be called to testify about parental capability, advise the client whether to be candid with the GAL based on the lawyer's case-by-case judgment about the client's interests.

In practice

Under the North Carolina rules as they stood at the time of the opinion, the analysis turns on whether the lawyer occupies a client-lawyer relationship. The opinion holds that a lawyer acting only as GAL is outside the client-duty rules, while a lawyer who is both counsel and GAL owes the parent the full Rule 1.6 confidentiality duty.

Per the opinion, where the parent has separate counsel, that lawyer must explain the GAL's lack of a confidentiality duty and the possibility of GAL testimony, then exercise case-by-case judgment in advising the client whether to confer candidly with the GAL.

Common questions

Q: Is a lawyer appointed only as a parent's GAL bound by the Rules of Professional Conduct?

A: Not by the client-duty rules. The opinion concludes the GAL has no client-lawyer relationship, so rules like confidentiality do not apply, though rules governing non-client conduct (such as Rule 8.4) still do.

Q: If one lawyer is both counsel and GAL, must communications be kept confidential?

A: Yes. The opinion concludes the lawyer must comply with Rule 1.6 and keep client communications confidential.

Q: Is there a conflict in serving as both counsel and GAL?

A: Not where the GAL role is limited to protecting procedural due process. The opinion finds that role consistent with representing the parent and takes no position on an expanded GAL role.

Q: Can the parent's separate lawyer advise the parent to speak candidly with the GAL?

A: Yes. After explaining that the GAL owes no confidentiality duty and could testify about parental capability, the lawyer may, based on case-by-case judgment, advise the parent whether to be candid.

Background and rules framework

The opinion interprets Rule 1.6 (confidentiality, corresponding to Model Rule 1.6), Rule 1.7 (conflicts of interest, corresponding to Model Rule 1.7), and Rule 8.4 (misconduct, corresponding to Model Rule 8.4), with reference to the Scope and Preamble comments on when the Rules apply. It relies on In re Shepard and RPC 249.

Citations and references

Rules of Professional Conduct:

• MR 1.6 / NC Rule 1.6 (confidentiality of information)
• MR 1.7 / NC Rule 1.7 (conflicts of interest)
• MR 8.4 / NC Rule 8.4 (misconduct reaching non-client conduct; Preamble cmt. [3])
• NC Rule 0.2, Scope, cmt. [4] (confidentiality requires a client-lawyer relationship)

Cases:

• In re Shepard, 03-212 (N.C. App. filed Jan. 20, 2004), GAL may testify as to parental capability

Other opinions cited:

• RPC 249 (a GAL without a client-lawyer relationship is not governed by client-duty rules)

See also

• NC State Bar 2006 FEO 9: Pursuing a Frivolous Claim at a GAL's Direction
• NC State Bar 2006 FEO 19: Guardian ad Litem Communication With a Represented Person

Source

• Landing page: https://www.ncbar.gov/for-lawyers/ethics-and-governing-rules/ethics-opinions/opinions/2004-formal-ethics-opinion-11/

Original opinion text

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

Inquiry #1:

Attorney A is appointed guardian-ad-litem (GAL) for a respondent parent with diminished capacity in a Termination of Parental Rights (TPR) action. The parent is indigent and, pursuant to N.C. Gen. Stat. § 7B-1111(a)(6), has also been appointed legal counsel, Attorney B. In In re Shepard, 03-212 (N.C. App. filed January 20, 2004), the court of appeals held that, in a TPR action based upon parental "incapability," a parent's GAL, who is a lawyer but is not providing legal representation to the parent, "may testify as to the ward's parental capability, and ultimately against the interest of their ward as to the termination hearing."

The basis for the court's decision stems from the observation that the North Carolina State Bar's Rules of Professional Conduct do not appear to govern the conduct of a GAL who acts "purely as a guardian and not an attorney.". at 8. The court also suggested that the role of the GAL is to ensure that the parent receives procedural due process by helping to explain and execute his or her rights.

Is a lawyer, appointed solely as GAL for the parent, governed by the Rules of Professional Conduct?

Opinion #1:

The court in Shepard recognized that some of the Rules of Professional Conduct create duties that are owed only in the professional client-lawyer relationship. For example, the confidentiality rule only applies when a lawyer has a client-lawyer relationship or has agreed to consider the formation of one. Scope, cmt. [4]. Conversely, there are other rules that apply although a lawyer is acting in a non-professional capacity. For example, a lawyer who commits fraud in a business transaction has violated Rule 8.4 by engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation. Preamble, cmt. [3].

The GAL does not have a client-lawyer relationship with the parent, and therefore, would not be governed by the Rules of Professional Conduct relating to duties owed to clients. See RPC 249. Notwithstanding the above, it may be prudent for the GAL to explain fully to the parent, to the extent possible, his or her role in the litigation, specifically that the GAL is not acting as the parent's lawyer.

Inquiry #2:

If the court appointed a lawyer to serve both as lawyer for the parent and as the parent's GAL, do the Rules of Professional Conduct require that the lawyer keep all communications confidential?

Opinion #2:

Yes. A lawyer serving as both lawyer and GAL for a parent in a TPR action must comply with Rule 1.6 of the Rules of Professional Conduct. Rule 1.6 generally prohibits a lawyer from revealing information acquired during the professional relationship unless the client gives informed consent or one of the exceptions allowing disclosure applies.

Inquiry #3:

If the court appoints the same lawyer as counsel for the parent and as the parent's GAL, does the lawyer have a conflict of interest?

Opinion #3:

The Shepard court acknowledged that there exists little guidance on the role or specific duties of a GAL, but suggested that the role of the GAL is guardian of the parent's procedural due process. Shepard, at 7. If the role of the GAL is limited to ensuring procedural due process for the parent by helping to explain and execute his or her rights, then this role is consistent with the role of a lawyer representing a client. Therefore, there is no conflict of interest in undertaking representation as both GAL and lawyer. The Ethics Committee takes no position at this time as to whether the GAL has additional responsibilities or whether an expanded role could result in a conflict of interest.

Inquiry #4:

Assume the parent has separate appointed counsel. Under Shepard, how can the parent's GAL perform his duties with competence if the parent has been advised by her lawyer that she should not share confidential information with the GAL?

Opinion #4:

The performance of the GAL's duties, as distinct from a lawyer's duties to a client, is not a matter upon which the Ethics Committee can opine.

Inquiry #5:

Assume the facts in Inquiry #4. Can the parent's lawyer ever advise the client to confer candidly with the GAL under the Rules of Professional Conduct?

Opinion #5:

Yes. In light of the Shepard decision, a lawyer should inform the parent, to the extent possible, that the GAL does not owe the parent a duty of confidentiality and that the GAL could be called upon to testify as to parental capability. Then, the lawyer must analyze each case and determine whether the parent's full disclosure to the GAL will accomplish the goals of the representation. If the lawyer believes full disclosure is appropriate under the circumstances, he or she may advise the client that he may be candid with the GAL. Likewise, a lawyer may reasonably conclude that full disclosure would not be in the parent's interests and may advise the client against it.