Utah State Bar Ethics Advisory Opinion Committee Opinion No. 07-02
Issued June 10, 2007
Issue: If an attorney guardian ad litem is appointed by a court for a person, may another attorney communicate with the person about the subject of the representation without the prior consent of the attorney guardian ad litem?
Opinion: When a person is represented by an attorney guardian ad litem, an attorney representing another party in the proceeding may not communicate with the person about the dispute, or arrange for the person to meet with a second attorney for such purpose, without the prior consent of the attorney guardian ad litem or authorization of the appropriate court, unless the represented person is independently seeking a second opinion or alternative representation from the attorney.
Facts: A minor is involved in a contested abuse/neglect proceeding. The minor is represented by an attorney guardian ad litem (“GAL”)1 appointed for the minor through the Utah Office of the Guardian ad Litem. With knowledge of the parent’s attorney, one of the minor’s parents asks a third attorney, who is a friend of the family, to interview the child, interview the child’s therapist and file a notice of appearance for the child in the proceeding, along with an affidavit from the children’s therapist, all without the knowledge or consent of the GAL.
We also consider the variation of a mature minor child in an abuse/neglect or custody case who has become dissatisfied with the representation being provided by the GAL and independently seeks to obtain separate representation or a second opinion from another attorney.
Conclusion: When a guardian ad litem is appointed by the court to represent a person in a judicial proceeding, another attorney may not communicate with the represented person about the subject of the representation unless the attorney first obtains the consent of the GAL or an appropriate order from a court of competent jurisdiction. Except, however, if a mature minor independently and voluntarily attempts to obtain a second opinion or independent representation from an uninvolved attorney, that attorney does not violate Rule 4.2 by speaking with the minor, even if the communication is without the GAL’s prior permission or consent. Minors also have statutory and constitutional rights that are independent of the rights of their parents and guardians. Nothing contained in this opinion is intended to affect or modify any such rights. This opinion only addresses the ethical and professional responsibilities of Utah attorneys when the minor is represented by a GAL.
For the full text of this and other Ethics Advisory Opinions go to the “Rules, Policies & Opinions” link at www.utahbar.org.
1. This Opinion assumes that the guardian ad litem is an attorney. Situations in which the guardian ad litem is not an attorney require a different analysis, which we do not address here.