Suit Against Guardian Ad Litem Fails

The Tennessee Court of Appeals affirmed dismissal of claims brought against a guardian ad litem 

On January 6, 2012, attorney Lisa Zacharias (“Defendant”) was appointed as guardian ad litem of three minor children, including the oldest, Benjamin Runyon (“Plaintiff”), to represent the best interests of the children in their parents’ divorce action. Plaintiff was still a minor when the divorce trial began on November 16, 2012; however, he turned 18 on November 27, 2012, and the trial did not conclude until January 17, 2013.

Three years later, Plaintiff commenced this civil action against Defendant claiming breach of confidentiality in her roles as his guardian ad litem and as his attorney. He contends that Defendant presented evidence to the court during his parents’ divorce action that was confidential information and the disclosure of which violated the attorney-client relationship because they were disclosed to the court after he turned 18 years of age.

The court discussed at length the role of the guardian ad litem and rejected a claim of qualified immunity.

But

Because a guardian ad litem must be an attorney, he or she is subject to the Rules of Professional Conduct in the performance of his or her duties in a legal proceeding. However, the scope and extent to which the Rules of Professional Conduct apply are subject to the exceptions mandated by the order of appointment and Rule 40A.

The Preamble to the Rules of Professional Conduct identifies exceptions to the rules of confidentiality by providing that “[a] lawyer should keep in confidence information relating to representation of a client except so far as disclosure is required or permitted by the Rules of Professional Conduct or other law.” Tenn. Sup. Ct. R. 8, Preamble § 5 (emphasis added). In this case the “other law” is Rule 40A and the order of appointment.

Moreover, and significantly, Rule 1.6 of the Rules of Professional Conduct, which pertains to the disclosure of confidential information, provides an exception that permits the disclosure of confidential information if “the disclosure is impliedly authorized in order to carry out the representation.” As noted above, Rule 40A and the order appointing Defendant as the guardian ad litem for Plaintiff and his two younger siblings expressly authorized the disclosure of confidential information if and to the extent Defendant
believed the disclosure to be in the children’s “best interests.”

Here, the order appointing Defendant as guardian ad litem provided Defendant with the following authority:

The GAL shall hereby have the authority to and shall maintain confidentially of such information obtained by and related to the GAL, except: as expressly permitted to be disclosed under this or other provision of this order or other executed release, or as permitted pursuant to another order from the Court, or as it may be necessary for, or greatly aid, the resolution of the issues. The file of the GAL shall otherwise remain confidential and not discoverable. (emphasis added).

In Plaintiff’s complaint, the only factual basis for the alleged wrongful disclosure of confidential information was that Defendant disclosed information “to the Court in Division VII without the knowledge, authority or consent of [Plaintiff].” In dismissing the case, the trial court reasoned that since the order appointing Defendant guardian ad litem expressly authorized disclosure of information to the court, Plaintiff’s complaint failed to state a claim. We agree.

(Mike Frisch)