In a juvenile dependency case, when can a parent's lawyer ask for a guardian ad litem, and must the lawyer follow the guardian's directions afterward?

Plain-English summary

In some juvenile dependency and termination-of-parental-rights cases, the court appoints guardians ad litem (GALs), often lawyers, for mentally ill parents. The opinion addresses three questions: whether a parent's lawyer may request a GAL for the client, whether a lawyer acting as a GAL has the same ethical duties and powers as in a regular lawyer-client relationship, and whether, after a GAL is appointed, the lawyer must take direction from the GAL. The conclusions are no (qualified), no (qualified), and yes (qualified).

On seeking a GAL, the opinion applies Oregon RPC 1.14, which requires a lawyer to maintain, as far as reasonably possible, a normal client-lawyer relationship with a client of diminished capacity, and permits protective action, including seeking a GAL, only when the client is at risk and cannot adequately act in their own interest. The opinion stresses that a lawyer should request a GAL only when the client consistently lacks the capacity to act in their own interests and is unlikely to regain it in a reasonable time, because in a dependency case the appointment effectively deprives the parent of counsel and decision-making authority and may itself suggest the parent's unfitness. It distinguishes the criminal aid-and-assist standard (ORS 161.360), which only pauses a trial, from the dependency context, where the case proceeds once a GAL is appointed.

On the GAL role, the opinion explains that a GAL need not be a lawyer, so a lawyer acting as a GAL performs a nonlawyer function and does not have the same ethical duties, obligations, and powers as in a lawyer-client relationship, though both a lawyer and a GAL owe a fiduciary duty. A GAL may settle claims and, with court approval, confess judgment for the incapacitated person (Alvarez v. Salvation Army). On taking direction, the opinion concludes that after a GAL is appointed the parent's lawyer generally must follow the GAL's direction and may make stipulations and agreements the parent could make if competent, and it is improper to act contrary to a GAL who adequately asserts the client's interests. At the same time, the lawyer must make an independent determination of the client's interests, monitor whether the GAL adequately protects them, and periodically inquire whether the client's competence has changed and, if appropriate, seek removal of the GAL.

In practice

This opinion was issued in 2005, after Oregon's adoption of the current Rules of Professional Conduct, so it interprets the current rule numbering, but readers should treat its specifics with care given its age and the dependency-practice context. The opinion holds that seeking a GAL is a last resort under Oregon RPC 1.14, that serving as a GAL is a distinct nonlawyer role, and that a lawyer must both follow an adequate GAL's direction and keep watch over the GAL's adequacy. Per the opinion, the analysis turns on the client's capacity to make the decisions reserved to the client and on the lawyer's continuing duty to protect the client's interests. Verify the current text of Oregon RPC 1.14 before relying on any specific point.

Common questions

Q: When should a parent's lawyer ask for a guardian ad litem in a dependency case?

A: Only as a last resort. The opinion concludes a lawyer should request a GAL only when the client consistently lacks the capacity to act in their own interests and is unlikely to regain it in a reasonable time, after maintaining as normal a relationship as possible under Oregon RPC 1.14.

Q: Does a lawyer serving as a guardian ad litem have the same duties as a lawyer for the client?

A: No, qualified. The opinion concludes that a lawyer acting as a GAL performs a nonlawyer function with different duties and powers, though both roles carry a fiduciary duty to the client or ward.

Q: Once a guardian ad litem is appointed, must the lawyer follow the guardian's instructions?

A: Generally yes. The opinion concludes the lawyer generally must take direction from a GAL who is adequately asserting the client's interests, while still independently monitoring the GAL and periodically checking whether the client's competence has changed.

Background and rules framework

The opinion interprets Oregon RPC 1.14 (client with diminished capacity), corresponding to Model Rule 1.14, together with Oregon RPC 1.6 (confidentiality, including the implied authorization to reveal information when taking protective action), in the juvenile dependency and termination-of-parental-rights setting, distinguishing the criminal fitness standard in ORS 161.360.

Citations and references

Rules of Professional Conduct:

• Oregon RPC 1.14 / Model Rule 1.14 (client with diminished capacity; protective action)
• Oregon RPC 1.6 / Model Rule 1.6 (confidentiality; implied authorization for protective action)

Statutes:

• ORS 161.360 (criminal fitness to proceed; distinguished)

Cases:

• United States v. 30.64 Acres of Land, 795 F2d 796 (9th Cir 1986) (appointment of a GAL where competency is in doubt)
• State ex rel. Juvenile Dep't of Multnomah Cnty. v. Evjen, 107 Or App 659, 813 P2d 1092 (1991)
• Alvarez v. Salvation Army, 89 Or App 63, 747 P2d 379 (1987) (GAL authority to settle and confess judgment)

See also

• CA COPRAC Op. 2021-207: Representing a Client With Diminished Capacity
• NYSBA Ethics Op. 986: Guardianship Conflict for an Incapacitated Client's Sister
• OSB Ethics Op. 2005-119: Conflicts of Fiduciaries (Personal Representative, Trustee)

Source

• Landing page: https://www.osbar.org/ethics/toc.html
• Original PDF: https://www.osbar.org/_docs/ethics/2005-159.pdf