Clarification in Virginia Ethics Rules : Virginia State Bar Updates The Code on Legal Ethics Regarding Communication With a Guardian ad Litem: LEO 1870

Author: Christopher Allen Meyer

The Virginia State Bar Standing Committee on Legal Ethics issues Legal Ethics Opinions (LEOs) concerning the ethical obligations of attorneys.  Often a LEO explains or clarifies the application to a specific situation of a particular ethical rule governing the conduct of attorneys in Virginia.   On October 8, 2013, the Committee released LEO 1870, which clarifies the ability of a lawyer in a case to communicate with a person represented by a Guardian ad Litem (GAL)[1] without the consent of the GAL.  Under Virginia law, generally an attorney may not contact a person directly who is represented by an attorney; they should contact that person’s attorney.  Apparently some attorneys thought that they did not have to go through the GAL before talking with the minor the GAL represented.

Frequently Guardian ad Litems are appointed to represent a minor child, often in a child custody proceeding, but their functions are not limited solely to domestic relations cases.[2]  The GAL is an attorney and, according to LEO 1870, represents the minor in that capacity.  Since the minor is represented by an attorney, then an attorney representing another party – such as a parent – may not contact the minor child about the issues in the case without the consent of the GAL.  This is the import of Rule 4.2 of the Rules of Professional Conduct in the Commonwealth of Virginia[3], which states;

Rule 4.2  Communication With Persons Represented By Counsel

In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized by law to do so.

Since the GAL represents the minor as an attorney, the GAL must be consulted before an attorney representing another party may speak with the minor.  Of course this works the other way as well.  Since the GAL is an attorney representing a client, the GAL may not contact one of the other parties without the consent of the attorney representing that party.

The short answer is that, under LEO 1870, a GAL must be treated just like any other attorney representing a client for the purposes of Rule 4.2.


[1] A Guardian ad Litem is an attorney who has been appointed by the Court to represent someone who legally cannot represent themselves.  The Latin phrase “ad Litem” means “for the suit”; a Guardian ad Litem is an attorney appointed to represent the person only in a particular matter (normally to pursue or defend a particular matter or lawsuit). For that matter, the Guardian ad Litem has the legal authority (and the corresponding duty) to care for the personal and property interests of the person for whom they are appointed; that person is called a “ward”. Usually, an attorney is appointed as guardian because the ward is legally incapable of caring for his or her own interests due to infancy, incapacity, or disability.

[2] On the Virginia Supreme Court website, a GAL is explained as follows: “Guardian ad litem (GAL) literally means ‘guardian for the suit.’ A guardian ad litem in Virginia is an attorney appointed by a judge to assist the court in determining the circumstances of a matter before the court. It is the fundamental responsibility of the guardian ad litem to provide independent recommendations to the court about the client’s best interests, which can be different from advocating for what the client wants, and to bring balance to the decision-making process. The GAL may conduct interviews and investigations, make reports to the court, and participate in court hearings or mediation sessions.”  See http://www.courts.state.va.us/courtadmin/aoc/cip/programs/gal/.

[3] See “Rules of Professional Conduct” at http://www.vsb.org/pro-guidelines/index.php/rules/transactions-with-persons-other-than-clients/rule4-2/.