20030061 | Office of Legal Ethics Counsel & Advisory Committee of the Supreme Court of Missouri

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Informal Opinion Number: 20030061

Rules: 4–4.2

Transactions With Persons Other Than Clients

Communication With Person Represented by Counsel

Subject: Communication with Represented Persons; Guardian ad Litem - Lawyer Serving As

Summary: attorney for custodial parent having direct communications with children who have guardian ad litem (GAL) appointed

Reference Notes:

Reference Note: In 2009, the Missouri Supreme Court adopted Standards with Comments for Guardians ad Litem in Juvenile and Family Court Division Matters. The Comment to Standard 3 clarified the role of the guardian ad litem. It provides that the guardian ad litem is not the lawyer for the child. This Informal Opinion predates the adoption of the Standards.

QUESTION: Can attorneys for custodial parents have contact with children who have had a guardian ad litem appointed for them?

ANSWER: Although a GAL is not always the attorney for the child, generally an attorney who is a GAL is treated as functioning as an attorney. Without facts that would indicate otherwise, the initial approach would be that the attorney for a party should not communicate with the child about the matter.The key word, in relation to Rule 4 dash–4.2, is “communicate.” Rule 4 dash–4.2 does not prohibit an attorney from being in the presence of a represented party; it prohibits communication about the subject of the representation. The attorney for either parent could be in the presence of the child who has a guardian ad litem but should not communicate with the child regarding the matter. This may mean that the child would need to be kept outside the hearing of the conversation between the attorney and parent.

Informal Opinions are ethics advisory opinions issued by the Office of Legal Ethics Counsel to members of the Bar about Rule 4 (Rules of Professional Conduct), Rule 5 (Complaints and Proceedings Thereon), and Rule 6 (Fees to Practice Law) pursuant to Missouri Supreme Court Rule 5.30(c). Written summaries of select Informal Opinions are published for informational purposes as determined by the Advisory Committee of the Supreme Court of Missouri pursuant to Rule 5.30(c). Informal opinion summaries are advisory in nature and are not binding. These opinions are published as an educational service and do not constitute legal advice.

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