Does the no-contact rule bar a lawyer who serves as both a child's attorney and guardian ad litem from contacting represented parties?

Currency note

The Board withdrew this opinion by Advisory Opinion 2024-02 on February 2, 2024; it is no longer current guidance. It was also issued in 2006, before Ohio's adoption of the Ohio Rules of Professional Conduct (effective February 1, 2007), and the Board flagged it as a "CPR Opinion" interpreting the former Ohio Code of Professional Responsibility. The anti-contact rule is now Ohio Prof. Cond. R. 4.2. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule or requirement mentioned here.

Plain-English summary

The Board addressed whether the anti-contact rule, DR 7-104(A)(1), restrained a lawyer who had been appointed to the dual role of a child's attorney and guardian ad litem. It concluded that it did. Because such a lawyer communicates during the course of representing a client (the child is a represented party), the rule was triggered, and communication on the subject of the representation with a represented person or party was improper unless counsel consented or the contact was authorized by law, such as by a court order or court rule.

The opinion drew the line at the content of the contact. It concluded that communication that is administrative in nature, such as scheduling appointments or meetings, is not communication "on the subject of the representation" and so falls outside the restraint. The Board followed the District of Columbia Bar's Opinion 295 (2000), which had reached the same result for a guardian ad litem acting as a child's lawyer: contact solely to arrange how to reach or meet the child is administrative and permitted.

The opinion was limited to the dual-role appointment. It expressly did not address a lawyer appointed to serve only as a guardian ad litem. The Board also noted, citing In re Baxter, that when the best-interest role and the client's wishes conflict, the lawyer's highest duty is to the client and the court should appoint a separate guardian ad litem.

Common questions

Q: Did the no-contact rule apply to a lawyer acting as both a child's attorney and guardian ad litem?

A: Yes. The opinion concluded that because the lawyer represents the child as a client, DR 7-104(A)(1) applied to contact on the subject of the representation with represented persons or parties.

Q: Could the lawyer contact a represented parent to schedule a meeting with the child?

A: Yes. The opinion concluded that administrative contact, such as scheduling appointments or meetings, is not communication on the subject of the representation and so is not barred.

Q: When was contact with a represented person allowed?

A: Per the opinion, only with the consent of that person's counsel or where authorized by law, such as a court order or court rule.

Background and rules framework

The opinion interprets former Ohio Code of Professional Responsibility DR 7-104(A)(1), the anti-contact rule, which barred a lawyer from communicating on the subject of the representation with a person the lawyer knew to be represented by counsel, absent that counsel's consent or authorization by law. The Board noted the rule reaches a represented "person," not only a represented "party." The current analogue is Ohio Prof. Cond. R. 4.2 (Model Rule 4.2).

Citations and references

Rules of Professional Conduct:

• Former Ohio Code of Professional Responsibility DR 7-104(A)(1), EC 7-18 (anti-contact rule)
• Current analogue: Ohio Prof. Cond. R. 4.2 (Model Rule 4.2)

Statutes and rules:

• Juv. R. 4(C); Ohio Rev. Code 2151.281(H); Civ. R. 75 (dual appointment as child's attorney and guardian ad litem)

Cases:

• In re Baxter, 17 Ohio St.3d 229 (1985), conflict between attorney and guardian ad litem roles
• In re Williams, 101 Ohio St.3d 398, 2004-Ohio-1500, child's right to independent counsel in parental-rights termination

Other opinions cited:

• ABA Formal Op. 95-396 (1995): scope of the anti-contact rule
• District of Columbia Bar Op. 295 (2000): administrative contact by a guardian ad litem
• Ohio BPC Op. 96-1 (1996): anti-contact rule reaches represented persons

See also

• Ohio BPC Op. 1992-007: Ex Parte Communication With a Government Party
• Ohio BPC Op. 2005-003: Contact With Current and Former Corporate Employees
• Ohio BPC Op. 1996-001: Ex Parte Communication With Former Corporate Employees

Source

• Landing page: https://ohioadvop.org/advisory-opinion-index/
• Original PDF: https://www.ohioadvop.org/wp-content/uploads/2017/04/Op-06-005.pdf

Original opinion text

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

The Supreme Court of Ohio
BOARD OF COMMISSIONERS ON GRIEVANCES AND DISCIPLINE
65 SOUTH FRONT STREET, 5TH FLOOR, COLUMBUS, OH 43215-3431
(614) 387-9370 (888) 664-8345 FAX: (614) 387-9379
www.sconet.state.oh.us

                                   OFFICE OF SECRETARY




                         OPINION 2006-5
                         Issued June 9, 2006
                    Withdrawn by Adv. Op. 2024-02

[CPR Opinion-provides advice under the Ohio Code of Professional Responsibility
which is superseded by the Ohio Rules of Professional Conduct, eff. 2/1/2007.]

SYLLABUS: The DR 7-104(A)(1) restraint on communication with represented
persons and parties applies to an attorney who is appointed to serve in a dual role
as guardian ad litem and attorney for a minor child. Thus, it is improper for an
attorney, appointed to serve in a dual role as a child’s attorney and guardian ad
litem, to communicate on the subject of the representation with a represented
person or party unless there is consent by counsel or authorization by law, such
as through a court rule or court order. Communication that is administrative in
nature, such as scheduling appointments or meetings, is not communication on
the subject of the representation.

OPINION: This opinion addresses questions regarding ethical restraints on
communicating with represented persons or parties by an attorney serving in a
dual role as a child’s attorney and guardian ad litem. This opinion does not
address the situation where an attorney is appointed to serve only as a guardian
ad litem.

  Does the DR 7-104(A)(1) restraint on communication with
  represented persons or parties apply to an attorney who is
  appointed to serve in a dual role as guardian ad litem and attorney
  for a minor child?

  Is it proper for an attorney, appointed to serve in a dual role as a
  child’s attorney and guardian ad litem, to communicate with a
  represented person without permission of counsel?

Appointment as a child’s attorney and guardian ad litem

A court may appoint an attorney to serve in a dual role as a child’s attorney and
guardian ad litem. Such dual appointments are authorized by law and rules of
court. See e.g., Juv. R. 4(C) and R.C. 2151.281(H) (West 2005) authorizing a
court to appoint an attorney as a child’s attorney and guardian ad litem in
juvenile court proceedings regarding an alleged or adjudicated abused, neglected,
or dependent child and in termination of parental right and permanent custody
proceedings. See also, Civ. R. 75 authorizing a court to appoint guardian ad litem
Op. 2006-5 2

and legal counsel, if necessary, in divorce, annulment, and legal separations
actions. For examples of local court rules addressing dual appointments see Rule
27(B) of the Local Rules of Procedure for Juvenile Court, Franklin County
Common Pleas Court and Rule 15(B) of the Rules of the Domestic Relations
Division, Franklin County Common Pleas Court, Rule 9.01(B)(3) Rules of
Juvenile Court, Summit County Common Pleas Court.

A guardian ad litem’s duty is to investigate and determine what is in the child’s
best interest. The duty of a child’s attorney is to represent the child’s interests
and wishes.

   The duty of a lawyer to his client and the duty of a guardian ad litem
   to his ward are not always identical and, in fact, may conflict. The
   role of guardian ad litem is to investigate the ward’s situation and
   then to ask the court to do what the guardian feels is in the ward’s
   best interest. The role of the attorney is to zealously represent his
   client within the bounds of the law. DR 7-101; DR 7-102.

In re Baxter, (1985), 17 Ohio St.3d 229, 260.

An attorney may not serve in a dual role as a child’s attorney and guardian ad
litem when a conflict exists in carrying out the two roles. The duties conflict
when a best interest determination differs from the client’s wishes and interests.

Independent counsel is required in some proceedings. See In re Williams, 101
Ohio St. 3d 398, 403, 405, 2004-Ohio-1500 holding that a child who is the
subject of a juvenile court proceeding to terminate parental rights is a party to
that proceeding and is entitled to independent counsel in certain circumstances.
Under the facts of that case, a child repeatedly expressed a desire to remain with
the mother, but the guardian ad litem recommended permanent custody be
granted to the county job and family services agency. Id. at 399. See also In re
Baxter (1985), 17 Ohio St.3d 229, 232-33, finding that a mother, whose
appointed counsel also served as guardian ad litem was denied proper
representation of counsel in a termination of parental rights proceeding in
juvenile court. Under the facts of that case, the attorney/gal felt that the mother’s
wishes were not beneficial to the mother. Id. at 232.

When there is conflict between the two roles, the court shall appoint another
person as guardian ad litem for the ward.

   Juv.R. 4(C)(2) If a person is serving as guardian ad litem and as
   attorney for a ward and either that person or the court finds a
   conflict between the responsibilities of the role of attorney and that
   of guardian ad litem, the court shall appoint another person as
   guardian ad litem for the ward.

See also, Ohio Rev.Code Ann 2151.281(H) (“If a person is serving as guardian ad
litem and counsel for a child and either that person or the court finds that a
conflict may exist between the person’s roles as guardian ad litem and as counsel,
Op. 2006-5 3

the court shall relieve the person of duties as guardian ad litem and appoint
someone else as guardian ad litem for the child.”)

Attorneys who serve in a dual role as an attorney and guardian ad litem are
reminded that the highest duty is to the client.

  [W]hen an attorney is appointed to represent a person and is also
  appointed guardian ad litem for that person, his first and highest
  duty is to zealously represent his client within the bounds of the law
  and to champion his client’s cause. If the attorney feels there is a
  conflict between his role as attorney and his role as guardian, he
  should petition the court for an order allowing him to withdraw as
  guardian. The court should not hesitate to grant such request.

In re Baxter (1985), 17 Ohio St.3d 229, 232.

Communication by an attorney/gal with represented persons and others

Attorneys who serve in a dual role as a child’s attorney and guardian ad litem
may question how the Ohio Code of Professional Responsibility applies in
carrying out the dual responsibilities. At issue in this opinion is whether
attorneys who serve in a dual role as a child’s attorney and guardian ad litem are
subject to the DR 7-104(A)(1) restraints on communication with represented
persons or parties.

The question is of great importance since the duties of both an attorney and a
guardian ad litem necessitate communication with various persons and parties.
Some of the persons may be represented and some may not.

Responsibilities of a guardian ad litem might vary with each case, but typically
include interviewing the child, observing each parent with the child, performing
home visits, investigating and interviewing all significant persons, obtaining
records, and attending depositions. See e.g., identical rules—Rule 27(D) of the
Local Rules of Procedure for Juvenile Court, Franklin County Common Pleas
Court and Rule 15(D) of the Local Rules of the Domestic Relations Division,
Franklin County Common Pleas Court.

DR 7-104(A)(1) restrains communication with represented persons

DR 7-104(A)(1) is referred to as the anti-contact rule—it restrains communication
with represented persons and parties. EC 7-18 explains that “[t]he legal system
in its broadest sense functions best when persons in need of legal advice or
assistance are represented by their own counsel. For this reason a lawyer should
not communicate on the subject matter of the representation of his client with a
person he knows to be represented in the matter by a lawyer, unless pursuant to
law or rule of court or unless he has the consent of the lawyer for that person.”
An ABA advisory committee notes that “the anti-contact rules provide protection
of the represented person against overreaching by adverse counsel, safeguard the
client-lawyer relationship from interference by adverse counsel, and reduce the
Op. 2006-5 4

likelihood that clients will disclose privileged or other information that might
harm their interests” (ABA Formal Op. 95-396 (1995) citing Roger C. Cramton &
Lisa K. Udell, State Ethics Rules and Federal Prosecutors: The Controversies
Over the Anti-Contact and Subpoena Rules, 53 U. Pitt. L. Rev. 291, 325 (1992).

  DR 7-104 (A) During the course of his [her] representation of a
  client a lawyer shall not:

         1. Communicate or cause another to communicate on the
            subject of the representation with a party he [she] knows
            to be represented by a lawyer in that matter unless he
            [she] has the prior consent of the lawyer representing
            such other party or is authorized by law to do so.

The restriction in DR 7-104(A)(1) applies to communication with a represented
person, not just a represented party. See EC 7-18 (“[a] lawyer should not
communicate on the subject of the representation of his client with a person he
knows to be represented in the matter by a lawyer, unless pursuant to law or rule
of court or unless he has the consent of the lawyer for that person.” Emphasis
added. See also, OhioSupCt. Bd Commissioners on Grievances & Discipline, Op.
96-1 (1996).

[ABA Model rule 4.2 is similar to DR 7-104(A)(1), with the exception that by an
amendment in August 1995 the word “party” was replace by the word “person.”
Even prior to that word change, ABA Formal Op. 95-396 advised that the
prohibition as to communication with a represented party applied to represented
persons.]

Thus, under DR 7-104(A)(1), during the course of representation of a client an
attorney may not communicate on the subject of representation with a person or
party represented by a lawyer unless there is consent by the lawyer or the
communication is authorized by law.

The rule does not define communication “authorized by law” but EC 7-18 refers
to it as communication made pursuant to law or rule of court. See also ABA
Formal Ethics Op. 95-396 addressing the categories of communication that are
“authorized by law” such communication made pursuant to a constitutional
provision, statute, court rule, or in appropriate circumstances a court order.

Communication while serving in a dual role as a child’s attorney and
guardian ad litem is subject to DR 7-104(A)(1)

The District of Columbia Bar considered the application of the anti-contact rule
to a guardian ad litem whose responsibilities included acting as a child’s lawyer in
a child abuse and neglect proceeding. The bar committee advised that “[u]nder
DC Rule 4.2, the guardian ad litem may not communicate about the subject of the
representation with either of the child’s parents without notification of and
consent from the parent’s lawyer. The guardian ad litem may communicate
directly with a represented parent if the sole purpose of the communication is to
Op. 2006-5 5

obtain information about how to contact the child or to schedule a meeting with
the child. Such communication would be administrative in nature and would not
be ‘about the subject of the representation.’” District of Columbia Bar, Op. 295
(2000).

This Board agrees that the anti-contact rule applies to communication on the
subject matter of a representation by guardian ad litem who also serves as a
child’s lawyer.

Communication on the subject of representation by an attorney who serves in a
dual role as a child’s attorney and guardian ad litem is subject to DR 7-104(A)(1)
because it is communication made by an attorney during the course of
representation of a client. Whenever an attorney is appointed to serve in a dual
role as a child’s attorney and guardian ad litem, the child is a client represented
by counsel and the anti-contact rule is triggered.

When the anti-contact rule applies, communication with represented persons or
parties is improper unless there is consent of counsel or there is authorization by
law, which would include a court order or court rule permitting the
communication with the represented person or party.

Conclusion

The DR 7-104(A)(1) restraint on communication with represented persons and
parties applies to an attorney who is appointed to serve in a dual role as guardian
ad litem and attorney for a minor child. Thus, it is improper for an attorney,
appointed to serve in a dual role as a child’s attorney and guardian ad litem, to
communicate on the subject of the representation with a represented person or
party unless there is consent by counsel or authorization by law, such as through
a court order or court rule. Communication that is administrative in nature, such
as scheduling appointment or meetings, is not communication on the subject of
the representation.

Advisory Opinions of the Board of Commissioners on Grievances and
Discipline are informal, nonbinding opinions in response to prospective or
hypothetical questions regarding the application of the Supreme Court
Rules for the Government of the Bar of Ohio, the Supreme Court Rules for
the Government of the Judiciary, the Code of Professional Responsibility,
the Code of Judicial Conduct, and the Attorney’s Oath of Office.