Ohio Board Advisory Opinion Op. 24-02

OCR transcription; preserved printed pages are authoritative

e Ohio Board of Professional Conduct

OPINION 2024-02
Issued February 2, 2024
Withdraws Adv. Op. 2006-5

Communication While Serving in a Dual Role as Guardian ad Litem and Attorney

SYLLABUS: A lawyer appointed to serve in a dual role as a child’s attorney and
guardian ad litem may not communicate with a represented person without permission
of counsel. If the communication is authorized by law or court order, or the
communication is solely to obtain information about how to contact the child or to
schedule an appointment with the child, then a lawyer appointed in a dual role may

contact a represented person without permission of counsel.

This nonbinding advisory opinion is issued by the Ohio Board of Professional Conduct
in response to a prospective or hypothetical question regarding the application of
ethics rules applicable to Ohio judges and lawyers. The Ohio Board of Professional
Conduct is solely responsible for the content of this advisory opinion, and the advice
contained in this opinion does not reflect and should not be construed as reflecting the
opinion of the Supreme Court of Ohio. Questions regarding this advisory opinion
should be directed to the staff of the Ohio Board of Professional Conduct.

€> Ohio Board ot Professional Conduct

THOMAS J. MOYER OHIO JUDICIAL CENTER
65 SOUTH FRONT STREET, 5™ FLOOR, COLUMBUS, OH 43215-3431
614.387.9370
www.bpc.ohio.gov

HON. D. CHRIS COOK RICHARD A. DOVE
CHAIR DIRECTOR
PATRICK M. MCLAUGHLIN D. ALLAN ASBURY
VICE- CHAIR SENIOR COUNSEL
KRISTI R. MCANAUL
COUNSEL

OPINION 2024-02
Issued February 2, 2024
Withdraws Adv. Op. 2006-5

Communication While Serving in a Dual Role as Guardian ad Litem and Attorney

SYLLABUS: A lawyer appointed to serve in a dual role as a child’s attorney and
guardian ad litem may not communicate with a represented person without permission
of counsel. If the communication is authorized by law or court order, or the
communication is solely to obtain information about how to contact the child or to
schedule an appointment with the child, then a lawyer appointed in a dual role may

contact a represented person without permission of counsel.
APPLICABLE RULES: Prof.Cond.R. 4.2
QUESTIONS PRESENTED:

May a lawyer appointed to serve in a dual role as a child’s lawyer and guardian

ad litem communicate with a represented person without permission of counsel?
ANALYSIS:

This opinion addresses ethical restraints on communicating with represented
persons by a lawyer serving in a dual role as a child’s attorney and guardian ad litem. It
does not address the situation where a lawyer is appointed to serve only as a guardian

ad litem.

Op. 2024-02 2

Appointment as a Child’s Attorney and Guardian ad Litem

A court may appoint a lawyer to serve in a dual role as a child’s attorney and
guardian ad litem. See e.g., Juv. R. 4(C), Civ.R. 75, Sup.R. 48.02(A)(1), and R.C.
2151.281(H). However, a lawyer may not serve in a dual role as a child’s attorney and
guardian ad litem when a conflict exists in carrying out the two roles. Sup.R.
48.02(D)(1)&(2). The duties owed to the child conflict when the recommendations and
best interest determination of the guardian ad litem are contrary to the client’s wishes.
Id. See also In re Baxter, 17 Ohio St.3d 229 (1985). When there is a conflict between the two
roles, the court shall appoint another person as guardian ad litem for the ward. Sup.R.
48.02(D)(1)-(2).

Responsibilities and Duties of a Guardian ad Litem

The responsibilities and duties of a guardian ad item are set forth in the Rules of
Superintendence. A guardian ad litem must investigate and provide the court with
recommendations as to the best interest of the child. Id. To provide the court with
recommendations the guardian ad litem must become informed about the facts of the
case and contact all relevant parties. Sup.R. 48.03(D)(1). This includes interviewing the
child, if age and developmentally appropriate, outside of the presence of the parents,
foster parents, guardians, or physical custodians. Sup.R. 48.03(D)(3). A guardian ad litem
must also interview the parties, foster parents, guardians, physical custodians, and other
significant individuals who may have relevant knowledge regarding the issues of the
case. Sup.R. 48.03(D)(6). Upon request of the individual to be interviewed, the lawyer

for the individual may be present. Id.
Communication with Represented Persons

Prof.Cond.R. 4.2 provides that in representing a client, a lawyer shall not
communicate about the subject of the representation with a person the lawyer knows to
be represented by another lawyer unless the lawyer has consent of the other lawyer or is
authorized to do so by law or court order. The purpose of the “anti-contact” rule is to
protect a person who has chosen to be represented by a lawyer from possible
overreaching by other lawyers who are participating in the matter, including interference
with the client-lawyer relationship and the uncounseled disclosure of information.

Prof.Cond.R. 4.2 cmt. [1]. Where a lawyer is appointed in a dual role, the lawyer functions

Op. 2024-02 3

as a guardian ad litem and is also responsible for representing the child as a client. Thus,
the client-lawyer relationship is established, and the protections under Prof.Cond.R. 4.2

are triggered.

In addressing the “authorized by law” exception, the Board observes that the rule
itself does not define communications authorized by law, but the comments, while not
intended to be limiting, provide examples of situations that are not applicable to this
question. The Board is unaware of any law that would allow a lawyer appointed in a

dual role to communicate with represented persons absent consent of their lawyer.

In considering whether a court order appointing a lawyer as a guardian ad litem
and lawyer for a child gives that lawyer the ability to directly communicate with
represented persons without consent of their counsel, the Board reviewed both the Rules
of Superintendence and the Judicial Guide for Guardian ad Litems Programs issued by
the Supreme Court of Ohio. Guardian ad Litems Programs, Judicial Guide,

https://www.supremecourt.ohio.gov/docs/JCS/courtSvcs/resources/GALToolkit.pdf

(last accessed January 10, 2024). The Judicial Guide provides courts with a sample order
for appointing a guardian ad litem and lawyer for a child. The sample order does not
include any language giving a lawyer the ability to directly communicate with
represented parties. Further, as indicated above, Sup.R. 48.03(D)(6) provides that,
“Tu]pon request of an individual to be interviewed, the lawyer for the individual may be
present.” Thus, a standard appointment of a lawyer to serve as a guardian ad litem and
attorney for a child does not authorize the lawyer to communicate directly with
represented persons without consent of the person’s lawyer. The Board recognizes,
however, that in exceptional circumstances the rule may permit the court to issue an
order allowing a lawyer in a dual role to communicate directly with a person represented
by counsel. Prof.Cond.R. 4.2 cmt. [6].

The Board’s view on this question is supported by the conclusions of other
jurisdictions that have concluded that a guardian ad litem appointed as a lawyer for a
child may not communicate directly with a represented person about the subject of the
representation without notification and consent from the person’s lawyer. Wash. D.C.
Adv. Op. 295 (2000) and Va. Adv. Op. 1870 (2013). Wash. D.C. Adv. Op. 295 also
concluded that it is permissible to contact the represented person if the sole purpose of

the communication is to obtain information about how to contact the child or schedule a

Op. 2024-02 4

meeting with the child, because that type of communication is administrative in nature
and not about the subject of the representation. Further, the opinion observed that a
lawyer appointed as a guardian ad litem shall not use another individual, such as a social
worker, to question a represented person to obtain information about the child without

the consent of the person’s lawyer. Id. See Prof.Cond.R. 8.4(a).

The Board agrees that a lawyer appointed in a dual role may communicate with a
represented person if the sole purpose of the communication is to contact the child or
schedule a meeting with the child. The Board also agrees that a lawyer should not use
another individual, such as a social worker, to question a person represented by counsel

without the consent of the person’s lawyer.