January 20, 2012 14:20 Age: 2 yrs

When Children are Clients, Dual Roles May Conflict, Carter Says

The potential for conflict exists when a lawyer serves as both a child’s attorney and guardian ad litem. The Georgia Supreme Court last week unanimously approved the State Bar’s advisory on that issue, which argues when the two roles represent different outcomes, the attorney should resign as guardian. The advisory dealt with cases in which parents may lose their parental rights because of abuse or neglect.

“When it becomes clear that there is an irreconcilable conflict between the child’s wishes and the attorney’s considered opinion of the child’s best interests, the attorney must withdraw from his or her role as the child’s guardian ad litem,” the 2011 bar opinion reads.

Emory Law’s Barton Child Law and Policy Center Executive Director Melissa Carter is quoted in a Jan. 20 Fulton Daily Report article on the ethics issue.

Policy varies from county to county in Georgia, but some appoint lawyers to serve as both attorney and guardian ad litem when representing a child. Critics say when a child is a client their wishes and their best interests may not align. So when an attorney is appointed to act as both counsel and guardian, he or she should resign as guardian ad litem when potential conflict arises.

"Children who are 14 and 15 are very capable of complex decision making," Carter said. The center submitted an amicus brief that largely supports the Georgia State Bar’s advisory opinion.

The opinion raises potential violations of professional responsibility rules including loyalty to clients, maintaining client confidentiality and lawyers acting as witnesses.

“The opinion said lawyers shouldn't tell the court why they're withdrawing from a guardian role, lest they break client confidentiality,” the article reads. “But it allowed an exception if keeping silent could expose the child to a high risk of harm. The opinion maintained that if the conflict between the attorney's own view and the child's view is severe, the attorney may withdraw from the case entirely or request the appointment of a separate guardian ad litem.”

Carter said she hopes the opinion will encourage lawyers who act as guardians “to do more with respect to the child’s voice, at least equally with what they do on the best interests side.”

The court unanimously cleared the Formal Advisory Opinion No. 10-2.

Related links:

Read the Fulton Daily Report story (requires premium access)

The Barton Child Law and Policy Center

Carter’s profile

 

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