LEGAL ETHICS OPINION 1729 GUARDIAN AD LITEM AS VISTITATION
SUPERVISOR AND WITNESS IN SAME
MATTER
You have presented a hypothetical situation in which an attorney
is involved in litigation in which a guardian ad litem has served
as the visitation supervisor. There are contested issues of
material fact involving events which occurred during a
visitation, and the guardian ad litem will have to testify in
that regard. The guardian ad litem's testimony may be impeached
or contradicted by the testimony of one of the parties present
during the visitation.
Under the facts you have presented, you have asked the committee
to opine as to whether a guardian ad litem (GAL) can represent
the client and testify as a witness to disputed issues of
material fact, or whether a new GAL must be appointed.
The appropriate and controlling disciplinary rule relative to
your inquiry is:
DR 5-102. Withdrawal as Counsel When the Lawyer Becomes
a Witness.
(A) If, after undertaking employment in contemplated or
pending litigation, a lawyer learns or it is obvious that he
or a lawyer in his firm ought to be called as a witness on
behalf of his client, he shall withdraw from the conduct of
the trial and his firm, if any, shall not continue
representation in the trial, except that he may continue the
representation and he or a lawyer in his firm may testify in
the circumstances enumerated in DR 5-101(B)(1) through (3).
(B) If, after undertaking employment in contemplated or
pending litigation, a lawyer learns or it is obvious
that he or a lawyer in his firm may be called as a
witness other than on behalf of his client, he may
continue the representation until it is apparent that
his testimony is or may be prejudicial to his client.
The committee has previously opined that an attorney who
discovers, after undertaking employment, that he must testify as
to a material matter if he is to serve the best interests of his
client, must withdraw from the representation of that client.
Legal Ethics Opinion 462. See also Legal Ethics Opinion 901
(wife's attorney may not continue to represent wife in case
involving enforcement of property settlement agreement which
husband repudiated, where attorney was a party to the
negotiations and attorney's testimony would likely be required).
There are exceptions to this "witness-advocate" rule, but none of
these exceptions apply to your inquiry.[1]
The Code of Virginia requires that the court appoint a "discreet
and competent attorney-at-law" to serve as guardian ad litem . .
.or if no such attorney be found willing to act, the court will
appoint some other discreet and proper person. Va. Code 8.01-
9. However, Va. Code 16.1-266 (A) expressly limits any such
appointment in the juvenile and domestic relations district court
to "a discreet and competent attorney-at-law. . . ." The GAL
"shall represent the child . . .at any such hearing and at all
stages of the proceedings unless relieved or replaced in the
manner provided by law." Va. Code 16.1-288. Va. Code 8.01-9
states that "every guardian ad litem shall faithfully represent
the estate of the person under a disability for whom he is
appointed, and it shall be the duty of the court to see that the
interest of such defendant is so represented and protected." The
court may enforce this duty by removing the guardian ad litem and
appointing another one. In regard to the obligations of the
guardian ad litem, the Court of Appeals of Virginia has observed:
We note that the duties of a guardian ad litem when
representing an infant are to defend a suit on behalf
of the infant earnestly and vigorously and not merely
in a perfunctory manner. He should fully protect the
interest of the child by making a bona fide examination
of the facts and if he does not faithfully represent
the interest of the infant he may be removed. . . .
Norfolk Division of Social Services v. Unknown Father, 2 Va. App.
420, 425 n.5, 345 S.E. 2d 533, 536 n.5 (1986). The guardian has
functions that may require him or her "to assume an adversarial
role in the litigation" and to pursue "an affirmative course of
action." Virginia Rule of Court 8:6 for the Juvenile and
Domestic Relations District Courts provides:
When appointed for a child, the guardian ad litem shall
vigorously represent the child fully protecting the
child's interest and welfare. The guardian ad litem
shall advise the court of the wishes of the child in
any case where the wishes of the child conflict with
the opinion of the guardian ad litem as to what is in
the child's interest and welfare.
In determining the ethical duties of an attorney serving as a
GAL, this committee has recognized that the relationship of the
GAL and child is different from the relationship of attorney and
client. See Legal Ethics Opinion 1725. In reconciling the
differences between the traditional ethical duties an attorney
owes to a client, and the legal obligations that a GAL must
discharge, the committee believes that where fulfilling a
specific duty of a guardian ad litem conflicts with traditional
duties required of an attorney under the Code of Professional
Responsibility, the specific duty of the guardian ad litem should
prevail. When the duties do not conflict, the GAL should follow
the traditional course of action required under the Code of
Professional Responsibility.
In the facts you present, the committee believes there is a
conflict between the attorney's ethical obligations under the
"witness-advocate" rule and the attorney's duty as a GAL to
report facts to the court that were learned during the GAL's
appointment and investigation, and to make recommendations to the
court based upon such facts. If the GAL cannot report to the
court what the GAL has observed or learned during the visitation,
for fear of violating the "witness-advocate" rule, then the GAL
cannot discharge the legal obligations of his appointment.
The attorney serving as GAL is charged with the duty of "fully
protecting the child's interest and welfare." Va. S. Ct. R. 8:6.
The Order for Appointment of Guardian Ad Litem (DC-514) provides
that the guardian ad litem is appointed "to protect and represent
the interests of [child] in connection with all proceedings
involved in this matter." The Order of Appointment provides
further that the guardian ad litem "perform the duties . . .
specified on the reverse and incorporated by reference into this
order." The duties incorporated by reference include:
1. Represent the child in accordance with Rule 8:6 of the
Rules of the Supreme Court of Virginia.
2. Advise the court relative to the following: (a) the
results of the guardian ad litem's investigation of the
case; (b) the guardian ad litem's recommendation as to any
testing necessary to make an effective disposition of the
case; (c) the guardian ad litem's recommendation as to the
placement of the child and disposition of the case; (d) the
results of the guardian ad litem's monitoring of the child's
welfare and of the parties' compliance with the court's
orders; (e) the guardian ad litem's recommendation as to the
services to be made available to the child and family or
household members.
(Emphasis added). Thus, the GAL is required to investigate the
case and "advise the court" regarding "the results" of the
investigation. This requires the GAL to provide the court with
material facts that may be disputed by some party in the instant
proceeding. The GAL is required to provide the court with his
"opinion" as to "what is in the child's interest and welfare."
Rule 8:6, supra.
Enforcing the "witness-advocate" rule in the context of a GAL
complying with his legal mandate to report to the court the
results of his investigation does not serve the purpose for which
the rule was intended. One of the purposes of the "witness-
advocate" rule is to protect the client's interests in not having
testimony produced on a contested issue from a witness (lawyer)
who is obviously interested in the case's outcome and is thus
subject to impeachment for that reason. Legal Ethics Opinion
1709. The GAL is not "interested" in the case's outcome in the
same manner as an advocate for one of the parties, who is hired
as an advocate to accomplish a party's goal or objective, i.e.,
win custody of the child for a parent. Another purpose of the
rule is to preserve the integrity of the judicial system, by
avoiding any public perception that a testifying advocate has
distorted the testimony to further his or her client's cause.
Legal Ethics Opinion 1709, supra. The committee believes that
such an appearance of impropriety is not present in the context
of a GAL making his report to the court and making
recommendations which he believes to be in the child's best
interest.
Accordingly, it is the opinion of the committee that DR 5-102 is
not violated under circumstances described in your inquiry as the
rule should not apply in this context.
Committee Opinion
March 26, 1999
FOOTNOTE:
[1] The exceptions to the "witness-advocate" rule are set
out in DR 5-101 (B), permitting the testifying lawyer
and his firm to remain as trial counsel if: (1) the
testimony will relate solely to an uncontested matter
or to a matter of formality and there is no reason to
believe that substantial evidence will be offered in
opposition to the testimony; (2) the testimony will
relate solely to the nature and value of legal services
rendered in the case by the lawyer or his firm to the
client; (3) recusal would work a substantial hardship
on the client because of the distinctive value of the
lawyer or his firm as counsel in the particular case.
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