VSB Standing Committee On Legal Ethics Seeking Public Comment On Legal Ethics Opinion 1844

Additional Info view draft of LEO 1844 (PDF)

Pursuant to Part Six: Section IV, Paragraph 10(c)(iii) of the Rules of the Supreme Court of Virginia, the Virginia State Bar’s Standing Committee on Legal Ethics (“Committee”) is seeking public comment on proposed advisory Legal Ethics Opinion 1844, Ethical Duty of Guardian Ad Litem to Investigate and Report Allegations of Child Abuse and Neglect.

This proposed opinion generally addresses the special role of a guardian ad litem (“GAL”) and the question of whether a GAL can reveal information, received from the child and against the child’s wishes, regarding possible child abuse and neglect. The Committee’s analysis considers Rule 1.6(b)(1), which specifically allows a lawyer to reveal information to the extent reasonably necessary to comply with law. The Committee’s analysis considers the unique role of a GAL as outlined in Rule 8:6 of the Rules of the Supreme Court of Virginia and the Standards to Govern the Performance of Guardian Ad Litem for Children (“The Standards”), which outline the specific duties and qualifications of a GAL appointed by the court.

As outlined in The Standards, and as agreed to in past opinions from this Committee, lawyers serving as GALs are subject to the RPC’s as they would be in any other case, except when the special duties of a GAL conflict with such rules. Notwithstanding the lawyer’s duty under Rule 1.6 to keep client information confidential, there may be times when honoring the duty of confidentiality would result in possible risk or harm to the child. During these times, the GAL needs to investigate information obtained from and about the child in order to ascertain certain facts. Only after an independent investigation, can the GAL assess the risk of probable harm to the child and make the determination regarding the duty, as an advocate for the child’s best interests, to disclose to the court or appropriate authority information necessary to safeguard the child’s best interests. If a determination is made as to the necessity of revealing certain information, that disclosure would be permitted in light of the Committee’s analysis of Rule 1.6(b)(1), where a lawyer can reveal protected information to the extent reasonably necessary to comply with law.

Inspection and Comment

The proposed advisory opinion may be inspected at the office of the Virginia State Bar, 707 East Main Street, Suite 1500, Richmond, Virginia 23219-2800, between the hours of 9:00 a.m. and 4:30 p.m., Monday through Friday. Copies of the proposed advisory opinion can be obtained from the offices of the Virginia State Bar by contacting the Office of Ethics Counsel at 804-775-0557, or can be found at the Virginia State Bar’s website at http://www.vsb.org.

Any individual, business or other entity may file or submit written comments in support of, or in opposition to, the proposed advisory opinion by filing ten copies with Karen A. Gould, the Executive Director of the Virginia State Bar, not later than December 17, 2008.

Updated: Oct 29, 2008