Opinion 648

Opinion 648

6.8.1993

By Committee on Professional Ethics

NEW YORK STATE BAR ASSOCIATION

Committee on Professional Ethics

Opinion #648 – 06/08/1993 (5-93)

Topic: Law Guardian: Acceptance of Related Fee-Generating Matter for Same Client
Digest: Law Guardian may represent client in related civil matter under certain circumstances
Code: Canons 4, 5, 6, 7, 9; EC 5-1, 5-21, 7-11, 7-12; DR 4-101(A) and (B); 5-101(A) and (B)

QUESTION

May a lawyer appointed law guardian in a child protective proceeding in Family Court represent the child in a subsequent civil action seeking money damages from the parent who is the alleged abuser? If so, may the lawyer also represent the other parent?

OPINION

The State Legislature has declared as a matter of public policy “that minors who are the subject of family court proceedings … should be represented by counsel of their own choosing or by law guardians.” Family Court Act §241 (McKinney’s 1983 and 1993 Supp.) This opinion addresses the question of whether a lawyer appointed pursuant to §249 of the Family Court Act as law guardian for a child who is the victim of alleged sexual abuse may, during or following the conclusion of the child protective proceeding (see Family Court Act, art. 10), represent the child in a civil action against the alleged abuser, seeking money damages.The questions posed imply four subsidiary questions: Whether there is something inherent in the role of the law guardian that would preclude or inhibit representation of the child by the law guardian in a separate albeit related matter; whether representation of the child in the subsequent civil action would risk breach of confidences or secrets of anyone to whom the lawyer owed a duty of confidentiality; whether there is sufficient potential that the law guardian will or ought to be called as a witness so as to preclude the representation; and whether there is any conflict, present or potential, between the child and the non-offending parent that would preclude the representation.As an issue of law, a precise definition of the role of a law guardian under the Family Court Act – as counselor, advocate, protector, officer of the court or some combination thereof – is beyond the jurisdiction of this Committee. From the wording of the statute and from commentary thereon (see, e.g., the Practice Commentary to the Family Court Act §§241-249a [McKinney’s 1983 and 1993 Supp.]), however, it is apparent that the role of law guardian incorporates some of each and that it is normally permissible for an attorney to serve as both guardian and attorney for an incompetent person, including a child. That dual capacity, indeed, appears inherent in the role of law guardian. Advice to the child concerning possible further remedies for the alleged abuse beyond those remedies available in a child protective proceeding thus appears well within the scope of the child’s law guardian’s charge.At the same time, the relationship between a child and his or her law guardian can best be described as a fiduciary one of extraordinary trust and reliance, that of client to attorney and considerably more. The child, moreover, must be regarded as vulnerable and in need of particular protection of the law. See. e.g., Family Court Act §241, supra, and §249-a (limiting the circumstances in which a court may accept a minor’s waiver of the appointment of a law guardian). Under these circumstances of special trust, the law guardian should, in providing legal and other advice, take particular care to avoid even the appearance that he or she has taken advantage of the fiduciary relationship between guardian and child to obtain valuable subsequent employment as counsel. Canon 9; DR 5-101(A). Compare N.Y. State 551 (1983) (assigned counsel for an indigent client under article 18B of the County Law may not concurrently represent the client in a fee-paying matter unless the fee is contingent and will be paid from the proceeds of a successful representation and the representation has been approved by the court), with N.Y. State 514 (1979) (improper for a lawyer who served as guardian ad litem for a proposed conservatee in a conservatorship proceeding to serve subsequently as counsel to the conservator appointed as a result of that proceeding).Turning to the question of confidentiality, a lawyer’s duty arising under Canon 4 to preserve forever the confidences and secrets of a client, unless waived, precludes a lawyer from accepting subsequent representations in which the lawyer would be required to reveal the first client’s confidences or secrets or to use them to the disadvantage of the client or to the advantage of the lawyer or a third person. DR 4-101(B); N.Y. State 514, supra. In this case, however, the lawyer would be representing the same party in both proceedings. The lawyer can in no way be regarded as serving the alleged abusing parent, who is both respondent in the child protective proceeding in which the lawyer is acting as law guardian and the prospective defendant in the subsequent civil proceeding for money damages. Nor are we concerned that the law guardian will, as a consequence of the guardian’s quasi-official function in the child protective proceeding, have gained information from the respondent that the respondent would not have disclosed had he or she known that the law guardian would be opposing counsel in a subsequent civil proceeding. But see Nassau County 87-7 (1987) indexed in ABA/BNA Lawyers’ Manual on Professional Conduct at 901:6256 (a law guardian, having represented children in a custody/visitation proceeding, may not represent one parent of the children against the other in a subsequent divorce action). The circumstances of a proceeding arising out of allegations of sexual abuse are such that no relationship of confidence, trust or reliance between law guardian and respondent could reasonably be implied so as in any way to inhibit the law guardian’s subsequent use of information gained from the respondent in the child protective proceeding. (That is not to say that information learned from the respondent might not be a secret of the child, to be preserved by the law guardian in the child’s interest. See DR 4-101 (A), (B).) Thus, without agreeing or disagreeing with the conclusion reached in Nassau County Opinion 7-87, we believe the facts and circumstances posited in this opinion are distinguishable from those upon which the Nassau County opinion is based. See New Hampshire 1988-89/15 (1989) indexed in ABA/BNA Lawyers’ Manual on Professional Conduct at 901:5707 (attorney named as guardian ad litem on behalf of a child victim in a criminal proceeding arising out of allegations of sex abuse may later commence a civil action on behalf of the child against the defendant: “Regardless of the capacity in which the acquiring attorney functioned [in the criminal matter], he at no time acquired confidential information from the Defendant nor did he acquire a duty to the Defendant, then or now, that would inhibit his abilities to represent the minor children in a civil action against the Defendant.”).If, in the course of acting as law guardian or otherwise, the attorney acquires direct knowledge of facts relevant to a subsequent civil action and it becomes apparent that the attorney will or ought to be called as a witness on behalf of the child, however, the law guardian should not undertake to act as the child’s advocate in the subsequent civil action. DR 5-101(B); N.Y. State 635 (1992).We turn next to the final question of the four subsidiary questions stated at the outset: Is there any conflict, present or potential, between the interests of the child and those of the non-offending parent that would preclude representation of the child in the subsequent civil action? These questions could be pertinent in two circumstances: First, where the non-offending parent’s expressed views of what is in the child’s best interest differ from those of the child or the child’s attorney, and second, where the attorney undertakes to represent both parent and child in the subsequent civil action. In the former case, as should be obvious, the attorney represents the best interests of the child, even though as a formal matter the attorney may be regarded as representing the non-offending parent as guardian of the child and a person to whom the attorney would normally turn for advice with respect to the child’s best interests. See N.Y. State 496 (1978). If the attorney discerns that the infant’s best interests conflict with the actions or views of the parent, the attorney should, nevertheless, act in the child’s best interest. Id. The attorney should keep in mind the Code’s reminders to maintain complete loyalty to the client, EC 5-1, free of influence based on the desires of third persons, EC 5-21. These goals obtain even as to incompetent clients to whom the attorney has heightened obligations, EC 7-11, and the attorney “should obtain from the client all possible aid” in making decisions on the client’s behalf. EC 7-12. If necessary, the attorney could seek appointment of a guardian ad litem in the civil action.The latter case, in which the attorney undertakes to represent both the child and the non-offending parent, is fraught with risks, including the risk that the interests of the respective clients may diverge and that the attorney may receive confidences or secrets of one that cannot be revealed to the other without breaching the attorney’s Canon 4 duty to the confiding client and cannot be withheld from the other client without breaching the attorney’s duties to the other client under Canons 5, 6 and 7. For these reasons, we caution against representing both non-offending parent and child in a civil action such as the one described herein, except with extreme care.CONCLUSIONFor the reasons and subject to the qualifications stated herein, the questions posed are answered in the affirmative.