Rule 4.2 And Guardians Ad Litem

A recent ethics opinion from Virginia addresses the propriety of a guardian ad litem communicating with a represented person:

When  a lawyer has been appointed to serve as a GAL for a child in a civil  proceeding, Rule 4.2 applies and prohibits counsel for another party in that  proceeding from communicating ex parte with the child about the subject matter of that proceeding, unless the GAL  consents to such communication or unless the law or court order authorizes that  lawyer to communicate ex parte with  the represented child.  Similarly, the  lawyer serving as GAL for the child is bound by Rule 4.2 and may not have ex parte communications with another  represented party in that proceeding, unless counsel for that party consents,  or unless the GAL is authorized by law or court order to have such  communication.

Rule  4.2 also applies to lawyer-directed communications with a represented person by  non-lawyers.  However, a government  lawyer does not violate Rule 4.2 merely by requesting a social worker or  investigator to communicate with a represented person, including a child for  whom a GAL has been appointed, if the law entitles or charges the investigator  or social worker to have such communication.   While the government lawyer may request that the social worker or  investigator contact and interview a represented person, and advise generally  what information the lawyer seeks, the lawyer may not “mastermind” or “script”  the interview or dictate the content of the communication.  Such conduct would be viewed as circumventing  Rule 4.2 through the actions of another.   Rule 8.4(a).

(Mike Frisch)