WHO IS THE CLIENT? The Ethical Duties of the attorney serving as the

Guardian Ad Litem as well as the attorney for the child

By Paul Shipp, An attorney with KANSAS LEGAL SERVICES

120 Grant Ave, Garden City, KS 67846

Phone: 620-275-0238; Fax: 620-275-4999

I. The debate over the dual role of the guardian ad litem

Is the GAL the child’s attorney? Or not? Kansas is not the only

jurisdiction to struggle with the evolving role of the child’s attorney. A great deal

of the debate centers on the role of the guardian ad litem (GAL), what exactly the

GAL is supposed to do, and who the GAL actually represents. This section of the

outline merely scratches the surface of the past debate. The reader is exposed to

some aspects of the debate over whether the child is the client, or whether the

attorney actually represents the fictitious “best interests of the child.” This

discussion is provided so that the recent changes of the law (in Kansas) can be

placed in context of what the legislature, and the Kansas Supreme Court, now

expect of attorneys who work on cases involving children.

a. The debate in Kansas

In The Practitioner’s Guide to Kansas Family Law, (2000 Edition) the

debate regarding the role of the guardian ad litem (GAL) was succinctly outlined:

The statute provides that the guardian ad litem, who must be an

attorney, “shall make an independent investigation of the facts

upon which the petition is based and shall appear for and

represent the child.” Thus, by statute, the child is the client.

Under the Model Rules of Professional Conduct, attorneys are

obligated to “abide by a client’s decisions concerning the lawful

objectives of representation.” In effect, therefore, the statute

requires a guardian ad litem to determine what the child wants to

achieve and then to work to reach those goals.

The problem is an apparent conflict between the statute

and orders of the Kansas Supreme Court. The Supreme

Court has ordered that guardians ad litem must investigate and

determine what is in a child’s best interests and then represent the

child’s best interests in all proceedings. Practitioners in this area

quickly realize that what a child wants is rarely what is in that

child’s best interests. Thus, guardians ad litem are placed in the

position where they must often present and argue contradictory

positions before the court.

(Emphasis added). David J. Brown, “Child In Need of Care and Juvenile

Proceedings,” Chapter 16, The Practitioner’s Guide to Kansas Family Law, (2000

Edition), p. 16-9.

In the case of In the Matter of the Marriage of Ross, 245 Kan. 591, 783

P.2d 331 (1989) the Supreme Court of Kansas held that it was the duty of the

GAL to “. . . appear for and represent the best interests of the child.” At Syl. ¶2.

The said holding was issued at the time K.S.A. 38-1505 clearly stated that the

GAL “shall appear for and represent the child,” apparently in direct contradiction

to what the statute iterated. Which was it to be? Was the attorney to represent the

child, or the best interests of the child?

The author’s first hand experience as to how GAL’s handled the dilemma

in the past was to explain to the Court when the child’s position, as to what should

happen, was in direct opposition to the GAL’s position. This approach was

required by the Kansas Supreme Court in Kansas Administrative Order No. 100,

Re: Guidelines for Guardians Ad Litem (Hereafter Order 100).

Another aspect of the dual-role that has caused debate is whether or not

the GAL can function as both an attorney and as a fact witness. The debate stems

from the old Order 100. The Order provided that the GAL should “provide

reports at every hearing, such reports being written or oral at the discretion of

each judicial district.” Many counties in the state would utilize the GAL as a fact

witness, because the GAL would conduct an independent fact investigation. The

issue becomes whether or not that is appropriate under the Rules of Professional

Conduct, Rule 3.7:

A lawyer shall not act as an advocate at trial in which the lawyer is

likely to be a necessary witness . . .

The debate has been settled with the recent changes in the law.

b. The debate in other jurisdictions

The Indiana University School of Law sponsored a symposium in 1998 to

discuss the issue of whether the GAL is more an attorney, or more a protector of

the best interests of the child. The University sponsored the symposium because

in its clinical program (much like Washburn University’s) its students represent

children in the capacity of GAL. Frances Hill, Associate Professor, published

some of the findings of the symposium in the Law School’s journal, see Frances

Gall Hill, “Clinical Education and the ‘Best Interest’ Representation of Children

in Custody Disputes: Challenges and Opportunities in Lawyering and Pedagogy,

73 Ind. L.J. 605 (1998).

One of the conclusions of the symposium was that there are two models of

representation: 1) the “guardian ad litem model” and 2) the “attorney-client”

model. The said law journal article does an excellent job of outlining the

differences in the said models. Provided below is a rather extended quotation

from the article that illustrates the significant differences in the said models.

The GAL Model:

This discussion focuses on attorneys serving as GALs for children

in custody and visitation litigation, rather than representing

children in the traditional attorney-client relationship. In this

context, a GAL serves as an officer of the court appointed to

represent the best interest of the child. The GAL conducts a

thorough investigation into the custody and visitation issues and

may submit a written report to the court and the parties in advance

of the hearing. The GAL facilitates settlement among the parties.

The GAL may be statutorily authorized to subpoena and cross-

examine witnesses, or may simply undertake these tasks as a

licensed attorney. The GAL may testify in the hearing and

advocate for the best interest of the child. The GAL should clearly

present the child's wishes, even if inconsistent with the GAL's

recommendation.

In representing the best interest of the child, the GAL is not

required to adhere to the stated desires of the child. However, two

significant factors with regard to a verbal child are (1) ascertaining

whether the child wants to forward a position in the custody

dispute, and (2) bringing that position, or other articulated needs

and desires of the child, clearly and accurately before the court.

The GAL will question the stated desires of the child to determine

if they are the result of parental pressure, impulse, or some other

motive inconsistent with the child's best interest. The GAL

assesses the child's capacity for decisionmaking to determine the

weight to be accorded the child's stated desires. The child's

communications to the GAL are not privileged, but the GAL may

disclose those communications only as necessary to investigate or

promote the best interest of the child, and only as required by

statute or due process of law to ensure the fairness of the custody

proceeding.

Ideally, the GAL-child relationship in a custody proceeding is

based on honesty and respect. The GAL must repeatedly define her

role to the child (in age-appropriate terms), clarifying that she is

not serving as the child's attorney and that their conversations are

not confidential. The GAL must spend enough time with the child

to ascertain her needs and desires, yet maintain the detachment

necessary to question the source and validity of the child's

statements through independent investigation. Even though the

GAL is not bound by the child's wishes and may of necessity share

her confidences, the GAL must always accord the child respect and

honor the child's autonomy as appropriate to the child's age and

maturity. The depth of the relationship and the extensiveness of the

communications between the child and the GAL are defined by the

child's capacity and need to participate in the legal process. Older,

mature children will be given greater encouragement to share

information and facilitate the investigation by identifying persons

or other information sources pertinent to the custody issue. Based

upon the child's maturity and interest, the GAL may keep the child

informed regarding the investigation, negotiations, and litigation.

Generally, all verbal children should be advised of the substance of

a GAL recommendation and encouraged to state needed changes

or corrections in the recommendation. The GAL may give the

child the opportunity to testify in the courtroom or in chambers,

and in other situations the GAL may attempt to protect the child

from being compelled to testify by parents' counsel.

The Attorney-Client Model:

The attorney-client model for representing children, as opposed to

the GAL model outlined above, needs little explanation to the

extent that it adheres to the traditional ethical rules and procedures

for lawyering. Proponents for the attorney-client model, as

opposed to the GAL model, urge that children are best served

when they are allowed to determine the goals of the representation,

when they are fully informed on the matters of the representation,

and when they develop a trusting relationship with their attorney

through preservation of confidences. However, these proponents

acknowledge that many children lack the cognitive ability and

judgment to direct the litigation in their own interest, and in that

sense are "impaired" within the meaning of Rule 1.14 of the Model

Rules of Professional Conduct. As for "impaired" children, the

attorney may direct the litigation with appropriate input from the

child, and the attorney should determine the options that best serve

the child's legal interests, considering the child in the context of his

environment.

If the reader is interested in a more comprehensive discussion of the topic the

reader should review the article in its entirety.

This past year (2003) the Kansas Legislature struggled with the two

models and decided to basically adopt both. As a result, K.S.A. 38-1505 was

changed, clearly outlining the role of the GAL as representing “the best interests

of the child” and naming a second attorney to actually “represent the child,” in the

event the child or the GAL requests a second attorney be appointed; especially

when the GAL’s position and the child’s position differ. The attorney currently

serving as a GAL, or as an attorney for a child in any proceeding would do well in

reviewing the new statute, as well as the newly revised Kansas Supreme Court

Administrative Order 100.

II. The solution to the debate; no dual role

Provided in the appendix of these materials is a copy of the Old Version of

K.S.A. 38-1505, Exhibit A, as well as the New Version of K.S.A. 38-1505,

Exhibit B; also provided is the old and new Administrative Order 100 (Guidelines

for Guardians Ad Litem) of the Supreme Court of Kansas, exhibit C and D

respectively. Also included is a copy of the Order Appointing Guardian Ad

Litem, Exhibit E, that the Judge may use at the time the GAL is appointed. These

materials are provided for the express purpose of assisting the practitioner in

representing the client.

There are differences between the old and new systems. A comparison of

the differences in the two systems is helpful and illustrates “clarification” with

regard to the role of the GAL, and the attorney who represents the child,

ultimately, who the client is and what the attorney’s ethical obligations are.

The differences in the old and new systems provide a framework in which

attorneys can apply the traditional attorney-client relationship when representing

children. The attorney is to represent his/her client, as any attorney would

represent his/her client.

Another significant change in the statute providing clarification is that the

GAL is no longer to “. . . appear for and represent the child.” but is to actually to

“. . . appear for and represent the best interests of the child.” The fictitious

person, “the best interests of the child,” is now the actual client of the GAL. The

statute goes on to allow the court to appoint a second attorney to actually

“represent the child.” The second attorney is appointed whenever the child and

the GAL disagree as to what should happen in the case, and this should occur only

“upon good cause shown.” The statute is silent as to whose burden it is to show

“good cause,” and there may likely be a debate in that area at a later time when a

party appeals a judge’s ruling not to appoint an attorney (not discussed in this

outline).

Another significant difference between the old and new systems,

providing additional clarification, is that the GAL used to “provide reports at

every hearing, such reports being written or oral at the discretion of the judge.”

Under the new rule the GAL should, “Not submit reports and recommendations to

the court,” and should not “act as a witness or testify in any proceeding in which

he or she serves as guardian ad litem,” except as permitted by the exceptions to

the Kansas Rules of Professional Conduct, Rule 3.7. Instead of serving as a

witness the GAL is now to present a case as any other attorney would present a

case. The Kansas Supreme Court, upon publication of the new Order 100

explained in comment to that rule that the changes were made

. . . so that the rule conforms with the 2003 amendments to K.S.A.

38-1505, which changed the GAL’s role from representing the

child to representing the best interests of the child. . . the former

rule created an ethical problem for th GAL by requiring the GAL

to serve both as an advocate and as a witness in the same matter,

which is prohibited by Kansas Rules of professional Conduct 3.7.

Several courts have recognized that it is unethical and

inappropriate for GALs to be both advocates and witnesses in the

same proceeding. K.C. Clark v. Alexander, 953 P.2d 145 (Wyo.

1998), In re Marriage of Hollister, 496 N.W.2d 642 (Wis. 1992),

and S.S. v. D.M., R.M, and J.S., 597 A.2d 870 (D.C. App. 1991).

In addition, Michigan and Tennessee have recognized the problem

and dealt with it by rule.

III. The ethical duties of the GAL and the attorney for the child

It is apparent that the ethical duties of the GAL, and the attorney for the

child are no different than that of any other attorney in the traditional sense. Even

though the attorney-client relationship is much like any other situation,

representing children presents unique challenges.

a. Competency

The Kansas Rules of Professional Conduct, Rule 1.1, provide that:

A lawyer shall provide competent representation to a client.

Competent representation requires the legal knowledge, skill,

thoroughness and preparation reasonably necessary for the

representation.

In the annotations and comment to the above rule it is outlined that the lawyer

does not always need special training or prior experience to handle legal problems

of a type with which the lawyer is unfamiliar, however the Kansas Supreme Court

does require the GAL to:

Participate in prerequisite education prior to appointment as a

guardian ad litem which consists of not less than six (6) hours

including one (1) hour of professional responsibility, and

participate in annual continuing education consisting of not less

than six (6) hours. Areas of education should include, but are not

limited to, dynamics of abuse and neglect; roles and

responsibilities; cultural awareness; communication and

communication with children skills and information gathering and

investigatory techniques; advocacy skills; child development;

mental health issues; permanence and the law; community

resources; professional responsibility; special education law;

substance abuse issues; school law; and the code for the care of

children. Such hours of continuing education, if approved by the

Continuing Legal Education Commission, shall apply to the

continuing legal education requirements of Supreme Court Rule

802 and the minimum total hours annually required by that rule are

not modified by these guidelines. The appointing judge or designee

shall have the authority to approve the prerequisite education and

continuing education not otherwise approved by the Continuing

Legal Education Commission. Guardians ad litem shall be

responsible for maintaining a record of their own participation in

prerequisite and continuing education programs. Upon the request

of the appointing judge or designee, the guardian ad litem shall be

required to provide evidence of compliance with this order.

Order 100. The Supreme Court of Kansas does require that the attorney serving

as the GAL actually get some type of special training, and pay special attention to

issues that deal with children. GAL’s are required to participate in six (6) hours

of continuing legal education that will keep the GAL abreast of the topics the

GAL will deal with during the course of representing the best interests of the

child. It is logical that the attorney who actually represents the child should

probably do something similar to what the Kansas Supreme requires of the GAL.

b. Confidentiality

Rule 1.6, Confidentiality of Information, provides that:

(a) A lawyer shall not reveal information relating to representation

of a client unless the client consents after consultation . . .

The issue is, “how does the GAL abide by rule 1.6?” The GAL cannot get the

“best interests of the child” to “consent after consultation”; and so what exactly is

the GAL’s obligation under Rule 1.6?

It must be remembered that the GAL does not represent the child, and

therefore has no duty of confidentiality to the child. Kansas has not yet addressed

this issue in the context of this new system; however, Wyoming did so in K.C.

Clark v. Alexander, 953 P.2d 145 (Wyo. 1998). The Wyoming Supreme Court

held that the GAL does not have the usual ethical duty of client confidentiality

because relevant information provided by the child must be brought to the judge’s

attention.

On October 29, 1997, the Kansas Bar Association issued an ethics opinion

addressing this very question, (however, in the context of the old law) while not

necessarily controlling, the opinion is certainly helpful. The KBA Ethics Opinion

(LEO 97-5), like the Wyoming case, opines that:

An attorney who is appointed by the court to serve as a GAL in a

CINC proceeding does not have an attorney-client relationship

with the child and owes no duty of confidentiality to the child.

The ethical question for the GAL is how to explain this situation to the child,

because the child is not the client of the GAL. Kansas Rules of Professional

Conduct, 4.2 (Communication with Person Represented by Counsel) and 4.3

(Dealing with Unrepresented Person) should be considered.

The Indiana Law Review, quoted above [and paraphrased extensively

below] suggests that because the child's communications to the GAL are not

privileged that the GAL may disclose those communications, but only as

necessary to investigate or promote the best interest of the child.

The relationship the GAL has with the child should be based on honesty

and respect. It will be vital for the GAL to repeatedly define his or her role to the

child (in age-appropriate terms) and at times it will be necessary to clarify to the

child that his/her conversations with the GAL are not confidential. It will be

important that the GAL spend enough time with the child to ascertain his or her

needs and desires, yet maintain the detachment necessary to question the source

and validity of the child's statements. Even though the GAL is not bound by the

child's wishes he/she may of necessity share the child’s confidences. The GAL

must always accord the child respect and honor.

The attorney who actually represents the child has a bit of a different, yet

unique scenario, where he or she must view the attorney-client relationship as it is

traditionally viewed. The American Bar Association does recommend that the

attorney for the child keep in mind rule 1.14, Client Under a Disability. The ABA

does define the “Child’s Attorney” as:

. . . a lawyer who provides legal services for a child and who owes

the same duties of undivided loyalty, confidentiality, and

competent representation to the child as is due an adult client.

American Bar Association Standards of Practice For Lawyers Who Reprent

Children in Abuse and Neglect Cases (1996), p.1. In the commentary of the said

ABA publication the ABA states that:

These Standards explicitly recognize that the child is a separate

individual with potentially discrete and independent views. To

ensure that the child's independent voice is heard, the child's

attorney must advocate the child's articulated position.

Consequently, the child's attorney owes traditional duties to the

child as client consistent with ER 1.14(a) of the Model Rules of

Professional Conduct. In all but the exceptional case, such as with

a preverbal child, the child's attorney will maintain this traditional

relationship with the child/client. As with any client, the child's

attorney may counsel against the pursuit of a particular position

sought by the child. The child's attorney should recognize that the

child may be more susceptible to intimidation and manipulation

than some adult clients. Therefore, the child's attorney should

ensure that the decision the child ultimately makes reflects his or

her actual position.

In reality the role of the attorney for the child is very different than that of the

GAL, and what the attorney will actually say to the child will be very different, as

the attorney-client relationship is established. Order 100 does require that the

GAL explain the “role of the guardian ad litem in terms the child can understand.”

What follows is a suggestion as to what the GAL may wish to say to the child

upon appointment in a case, as well as what the attorney may wish to say to the

child in the same or similar case. What is provided is only a suggestion; and

should be altered depending upon the age, education and experience of the child.

WHAT THE GAL MAY WISH TO SAY THE CHILD

It is important that you understand what I am to do in your case. I

am not your attorney. I am not your lawyer. I am an

attorney/lawyer and the Judge has given me the job to be your

Guardian Ad Litem. It is my job to protect you and do what I think

is in your best interests. I will talk to a lot of people and try to

figure out what is best for you and work hard to make sure that you

get what I think is best for you. I want you to talk to me so that I

can help you. I want you to tell me what you want to happen in

your case and why. It is possible that we may not agree about

what is best for you. [For example, sometimes children want to

stay with their family, and sometimes that is not the best thing; if

you want to stay with your family and I don’t think it is best then I

will tell the Judge how you feel]. If we disagree about what is best

then I will tell the Judge about your position, explain to him or her

what you think, and he may appoint another attorney to argue what

you want to happen. I will do my best to keep everything you tell

me confidential, but you need to know that anything you tell may

be repeated by me to the Judge, to your social worker(s), to your

parent(s), etc. I want you to trust me and be honest with me

because I want what is best for you!

When speaking to the child, careful consideration as to how to explain something

like that provided above is necessary. One does not want to ‘over do it’ to the

point where the child doesn’t want to talk, however, when dealing with a person,

particularly one not experienced in dealing with legal matters, the attorney should

be certain to make his/her role as GAL clear. Rule 4.2 and 4.3.

WHAT THE ATTORNEY “FOR THE CHILD”

MAY WISH TO TELL THE CHILD

I want you to know that everything you tell me is strictly private

(basically a secret). I am not going to repeat anything you tell me,

unless you tell me I can. If your mom or dad or anyone else asks

me what you have told me I will tell that I cannot repeat it unless

you tell me I can. The law says that when a person is talking to his

or her lawyer, what he or she tells the lawyer is confidential

(secret); only between them. My obligation is to you and nobody

else. You are my boss because I am your attorney. It is my job to

help you understand what is going on and to explain things to you.

I cannot explain things to you unless you tell me the whole truth. I

will not embarrass you or try to make you feel bad about anything

you tell me. I am telling you this because I want you to know and

trust that you can tell me anything without worrying about me

repeating it. I am on your side. What do you want to happen in

your case? Why?

The above items are only suggestions.

The child’s attorney may likely find him or herself in an embarrassing

situation where the child is asking his or her attorney to advocate a position that

he or she would never seek to advocate. It is fairly predictable that the attorney

may find him or herself arguing for something that the Judge may not want to

hear. The reason the attorney was/will be appointed in the first place is because

the GAL doesn’t think the child is making a good decision. For example, a true

hypothetical:

HYPOTHETICAL!

Imagine for a moment that you are representing a Juvenile

Offender (first offense auto-theft), as his/her attorney in the

Juvenile Offender matter, and the child is being held in detention

because of a CINC case in another county. In other words, you

cannot get the kid out of detention because the CINC court retains

jurisdiction. The child was recently picked up on a bench warrant

while he/she was running away with his/her boyfriend/girlfriend;

who he/she refers to as his/her spouse. Both runaways are under

age 18 years of age and the one who is not in custody also wants to

be married to your client, and his/her parents are willing to consent

to the marriage and give their blessing on it. The child you

represent wants to be married as well, and wants the CINC case to

terminate, however, that cannot happen unless the Judge in the

CINC case consents to the marriage and terminates the case. You

have no authority in the CINC case. You learn that the GAL is not

going to recommend termination of the case and you also know

that the GAL is not going to advocate for the marriage to happen

(certainly not). What do you counsel your client, and what do you

tell your client about the CINC system? What do you tell your

client about the role of the GAL? What can you do and what can’t

you do? What is ethical and what is not ethical? (for the Child’s

Attorney in the CINC case, for the GAL in the CINC case). What

challenges (legal and ethical) will the newly appointed attorney in

the CINC case be presented with?

DISCUSSION! [Open Ended]

Jean Koh Peters, in her treatise, Representing Children in Child Protective

Proceedings (Second Edition, LexisNexis, 2001), at p. 72-73, explains the

importance of respecting one’s client, whether present or absent. She opines that

the attorney should:

. . . never act or make statements outside the presence of your

client that you would not make in front of your client. While at

first startling, this principle is neither radical nor as difficult as it

may seem at first blush. While attorneys may speak in a different

language when pressing the client’s case outside of her presence,

the depictions of the client, the statements of the client’s concerns,

and the respect for key relationships to the client must be

consistent throughout all the lawyer’s interactions in the case. The

child is entitled to have the lawyer take seriously and promote the

child’s concerns in all respects.

The above is helpful advice for the attorney caught in the situation where he or

she is advocating a position where the eyebrow of the state’s attorney, the GAL

and the Judge may be raised a bit. Hopefully, the Courts will understand the

predicament of the attorney for the child and be slow to pass judgment on the

argument(s) made by the attorney for the child. The fact is the attorney for the

child is still under the obligation to follow all of the Rules of Professional

Conduct, including that of Scope of Representation (Rule 1.2), “A lawyer shall

abide by a clients decisions concerning the lawful objectives of representation.”

In other words, the client (a child) controls the position to be presented. The

attorney for the child is obligated to be diligent in advocating the child’s position,

despite opposition, obstruction or personal inconvenience to the lawyer. See

Comment to Rule 1.3, Diligence. The attorney is also to act with commitment and

dedication to the interests of the client and with zeal in advocacy upon the client’s

behalf. Id.

SOME ONLINE MATERIALS THAT PRACTIONERS MAY FIND HELPFUL

http://www.kansaslegalservices.org/publications/index.html -- Contains materials

to assist the practitioner who actively works in the Courts for children and

their families, including Kinship Care News and Foster Care Rights and

Resources.

http://www.kansaslegalservices.org/publications/newsletters.html -- Contains

online copies of the Children’s Advocacy Resource Center (CARC)

Newsletters; past three years.

http://www.kscourts.org/council/admin100_2003amd.pdf -- A link to the full text

of the recently revised Kansas Supreme Court Administrative Order No.

100, Re: Guidelines for Guardians Ad Litem.

http://www.abanet.org/child/home2.html -- American Bar Association Center on

Children and the Law.

http://www.abanet.org/child/repstandwhole.pdf -- This is the full text of the

American Bar Association Standards of Practice For Lawyers Who

Represent Children in Abuse and Neglect Cases, quoted in these materials.

http://www.juvenilenet.org/jjtap/archives/index.html -- This site offers free online

educational materials for professionals who work with children. If you

have a high speed Internet connection you can view full length videos

about such topics as “Community Responses to Truancy: Engaging

Students in School” as well as other resources.

http://www.courts.michigan.gov/mji/resources/lgal/LGALprotocol.htm -- This is

a link to the Michigan Court’s information on GALs. Some of the recent

changes in Kansas Laws were based off of Michigan’s systems. There is a

comprehensive guide for GALs that some Kansas GALs may find helpful.