Can a lawyer who served as a child's law guardian in an abuse proceeding later represent the child in a civil damages suit against the abuser?

Plain-English summary

A lawyer appointed under Family Court Act section 249 as law guardian for a child who was the alleged victim of sexual abuse asked whether the lawyer could later represent that child in a civil damages action against the alleged abuser. The committee answered yes, subject to qualifications, breaking the inquiry into four subsidiary questions.

First, the committee found nothing inherent in the law-guardian role that precludes the later representation; advising the child about further remedies appears within the guardian's charge, and serving as both guardian and attorney for a child is normally permissible. But because the guardian-child relationship is one of extraordinary trust, the lawyer must take particular care to avoid even the appearance of exploiting that fiduciary relationship to obtain paid subsequent employment (Canon 9; DR 5-101(A)).

Second, on confidentiality, the committee found no bar: the lawyer would represent the same party (the child) in both matters and owed no duty to the alleged abuser, so no relationship of confidence with the abuser would be implied. It distinguished a contrary Nassau County opinion and noted that information learned might still be a secret of the child to be preserved in the child's interest (DR 4-101(A), (B)). Third, if the lawyer acquires direct knowledge of facts such that the lawyer will or ought to be called as a witness, the lawyer should not act as the child's advocate in the civil action (DR 5-101(B)). Fourth, on conflict with the non-offending parent, the committee held the lawyer must act in the child's best interest even where the parent's views differ (citing N.Y. State 496), and cautioned against representing both the parent and the child in the civil action except with extreme care, given the risk of diverging interests and conflicting confidences.

Currency note

This opinion was issued in 1993, under New York's former Code of Professional Responsibility, which New York replaced with the Rules of Professional Conduct in 2009. The provisions on personal-interest conflicts, confidentiality, and the lawyer-as-witness rule have since been revised. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Can a child's law guardian later represent the child in a damages suit against the abuser?

A: Under this opinion, yes, subject to qualifications. The committee found nothing inherent in the law-guardian role that precludes the related representation of the same child.

Q: Does the guardian's prior role create a confidentiality problem with the abuser?

A: No. The committee held the lawyer owed no duty of confidence to the alleged abuser, so the later representation of the child does not breach a duty to the abuser.

Q: What if the law guardian might be a witness in the civil case?

A: Then the lawyer should not act as the child's advocate in that action, under the lawyer-as-witness rule (DR 5-101(B)).

Background and rules framework

The opinion interpreted DR 5-101(A) (personal-interest conflicts and avoiding the appearance of self-dealing), DR 5-101(B) (the lawyer-as-witness rule), and DR 4-101(A) and (B) (confidences and secrets), along with Canons 4, 5, and 9 of New York's former Code. The closest Model Rule analogues are Rule 1.7 (personal-interest conflicts), Rule 1.6 (confidentiality), and Rule 3.7 (lawyer as witness). New York replaced the Code with the Rules of Professional Conduct in 2009; the provisions cited here are historical.

Citations and references

Rules of Professional Conduct:

• MR 1.7 (personal-interest conflicts)
• MR 1.6 (confidentiality of information)
• MR 3.7 (lawyer as witness)
• NY DR 5-101(A), (B); DR 4-101(A), (B)

Other opinions cited:

• N.Y. State 496 (1978): the attorney for a child acts in the child's best interest even when the parent's views differ
• N.Y. State 514 (1979): improper for a guardian ad litem to later serve as counsel to the conservator appointed
• N.Y. State 635 (1992): the lawyer-as-witness limitation

See also

• NY State Bar Op. 656: Contacting a child who has a law guardian
• NY State Bar Op. 790: Law guardian conflict; agency nonlegal services
• NY State Bar Op. 1069: Simultaneous representation of an immigrant child and the proposed guardian

Source

• Landing page: https://nysba.org/opinion-648/