May a lawyer serving as a child's guardian ad litem reveal the child's confidences, and when does the guardian role turn into an attorney-client relationship?

Plain-English summary

An attorney appointed as guardian ad litem for a child in a family court case faced a child who wanted the guardian to advocate a position the guardian did not believe served the child's best interests. The inquiry asked whether, as long as the attorney kept a strict guardian-ad-litem role and did not act as the child's attorney, the guardian could reveal the child's confidences, and what actions would alter the role into an attorney-client relationship.

The committee, drawing on its Opinion 97-15 and South Carolina cases, described a guardian ad litem as a representative of the court appointed to protect the interests of a person who cannot protect his own, with a duty to act in the child's best interests. It reasoned that this duty cannot be jeopardized by a child who wants the guardian to advocate a position contrary to the child's best interests, since that would undermine the purpose of the appointment. The guardian must therefore protect the child's interests even if that means divulging information the child would prefer kept private.

On the second question, the committee found it impossible to define exhaustively what events create an attorney-client relationship, but concluded that in this inquiry such a relationship would arise when the guardian advocated the ward's position to the court. It noted the attorney represents the guardian ad litem rather than the child directly, because a child lacking capacity cannot directly enter an attorney-client relationship. Citing Opinion 83-14, it recognized that a guardian may also serve as attorney and advocate the best-interests position, but warned (per Opinion 91-26) that Rule 3.7 bars a lawyer from acting as both witness and advocate, so a guardian likely to testify to his findings is disqualified from serving as counsel in commitment proceedings, and the roles should be divided where serving in both would be precarious.

Currency note

This opinion was issued in 1998, before the South Carolina Bar's adoption of the 2005 revisions to the Rules of Professional Conduct. 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 Treat this page as historical context, not current guidance.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 guardian ad litem disclose a child's confidences?

A: The committee concluded yes, where the attorney serves only as guardian ad litem (not also as the child's lawyer): the guardian may reveal confidences to the court as necessary to carry out the guardianship or protect the child's interests.

Q: What if the child wants the guardian to argue a position the guardian thinks is harmful to the child?

A: Per the opinion, the guardian's duty to act in the child's best interests controls and cannot be overridden by the child's wishes; the guardian must protect those interests even by disclosing information the child would prefer withheld.

Q: When does the guardian-ad-litem role become an attorney-client relationship?

A: The committee said it would arise when the guardian advocates the ward's position to the court, and cautioned that under Rule 3.7 a guardian likely to testify to his findings cannot also serve as the child's counsel.

Background and rules framework

The opinion addressed the guardian ad litem's confidentiality duties and the witness-advocate rule, applying South Carolina RPC 3.7 (lawyer as witness), corresponding to Model Rule 3.7, and the confidentiality principles of RPC 1.6 (Model Rule 1.6). It relied on the committee's prior Opinions 97-15, 83-14, and 91-26, and on S.C. Code Ann. Section 20-7-110(1) requiring appointment of both counsel and a guardian ad litem for children in family court.

Citations and references

Rules of Professional Conduct:

• South Carolina RPC 3.7 / Model Rule 3.7: lawyer as witness; cannot act as both witness and advocate.
• South Carolina RPC 1.6 / Model Rule 1.6: confidentiality of information.

Statutes:

• S.C. Code Ann. Section 20-7-110(1): children must be appointed legal counsel and a guardian ad litem by the family court.

Cases:

• Shainwald v. Shainwald, 395 S.E.2d 441 (S.C. Ct. App. 1990), role of a guardian ad litem.
• Fleming v. Asbill, 483 S.E.2d 751 (S.C. 1997), guardian ad litem's duty to the ward.

Other opinions cited:

• S.C. Bar Ethics Ops. 97-15, 83-14, 91-26: guardian-ad-litem role, dual roles, and the witness-advocate conflict.

See also

• SC Bar Ethics Op. 04-08: Ex-Guardian ad Litem Conflict
• SC Bar Ethics Op. 06-10: GAL Blocks Discovery of Assets

Source

• Landing page: https://www.scbar.org/for-lawyers/quicklinks/legal-resources/ethics-advisory-opinions/ethics-advisory-opinion-98-02/

Original opinion text

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

UPON THE REQUEST OF A MEMBER OF THE SOUTH CAROLINA BAR, THE ETHICS ADVISORY COMMITTEE HAS RENDERED THIS OPINION ON THE ETHICAL PROPRIETY OF THE INQUIRER’S CONTEMPLATED CONDUCT. THIS COMMITTEE HAS NO DISCIPLINARY AUTHORITY. LAWYER DISCIPLINE IS ADMINISTERED SOLELY BY THE SOUTH CAROLINA SUPREME COURT THROUGH ITS COMMISSION ON LAWYER CONDUCT.

Ethics Advisory Opinion 98-02

An attorney is appointed to be a guardian ad litem for a child in a family court case. The child talks with the guardian ad litem and discusses the case. The child wants the guardian ad litem to advocate a position that the guardian does not believe to be in the best interests of the child.

QUESTIONS:

1. As long as the attorney maintains a strict guardian ad litem role and does not act as an attorney, may he or she reveal the confidences of the child?
2. What actions by the attorney acting as a guardian ad litem would cause that role to alter, thereby creating an attorney-client relationship?

SUMMARY:

1. Yes. A guardian, not acting also as the attorney for the ward, may reveal confidences of the child to the court as necessary to carry out the functions of the guardianship or to protect the interests of the child.
2. It is impossible to define what events may create an attorney/client relationship. In the present inquiry, however, clearly an attorney/client relationship would be created at such time as the position of the ward was advocated to the court by the guardian.

OPINION:
(As recognized in this Committee's Opinion 97-15, "A guardian ad litem is a representative of the court appointed to assist it in properly protecting the interest of an incompetent person." Shainwald v. Shainwald, S.C. ,395 S.E.2d 441(Ct. App. 1990). "The duty of a guardian ad litem or next friend is to look after the infant's interest and to act for him in all matters relating to the suit as he might act for himself if he were of capacity to do so." Fleming v. Asbill, S.C. , 483 S.E.2d 751 (1997) (citations omitted). In the instant inquiry, the nature of the "confidences of the child" in danger of being revealed is unclear. It is the duty of the guardian to act in the best interest of the child. This duty cannot be jeopardized by a child who wishes the guardian to advocate a position not in that child's best interests. Such a scenario would undermine the very purpose of the appointment of the guardian. The guardian must, therefore, protect the child's interests, even if it means divulging information the child would prefer was not known. With respect to the second question of the inquiry, it is the opinion of the Committee that even if attorney may be called upon by the court to act as an advocate for the child, such a role would not conflict with the best interests of the child. The attorney represents the guardian ad litem rather than the child directly. Because the child lacks the capacity to make decisions for him or herself, he or she cannot directly enter into an attorney-client relationship. As we noted in Opinion 83-14, "[t]he guardian ad litem can determine what is in the best interest of the alleged incompetent that he represents and then, as his attorney, actively advocate that position. We recognize that there are circumstances that create a conflict between the roles of a guardian ad litem and an attorney. If at the outset, it appears that it will be precarious for an individual to serve in both capacities, then the attorneys or the court should divide the responsibilities." Such a conflict arose in Opinion 91-26, where an attorney was both guardian ad litem and advocate in a potential involuntary commitment proceeding. The Committee noted Rule 3.7 of the Rules of Professional Conduct does not allow an attorney to act as witness and advocate. "If the attorney will likely be a witness as to his findings while serving as guardian ad litem, he is disqualified to serve as counsel of a minor during judicial or emergency commitment proceedings." S.C. Bar Eth. Adv. Op. 91-26. See also, S. C. Code Ann. Section 20-7-110(1) ("Children must be appointed legal counsel and a guardian ad litem by the family court." (emphasis added)).