Guardians ad litem as surrogate parents: Implications for role definition and confidentiality

Fordham Law Review

Volumn 64, Issue 4, 1996, Pages 1785-1817

  Stuckey, Roy T ^a  

^a UNIVERSITY OF SOUTH CAROLINA   (United States)

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EID: 0030558707     PISSN: 0015704X     EISSN: None     Source Type: Journal    
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References (109)

1. Black's Law Dictionary 706 (6th ed. 1990).
2. 42 Am. Jur. 2d Infants § 174 (1969); see also Stewart v. Superior Court, 787 P.2d 126, 127 (Ariz. Ct. App. 1989) (stating that without special circumstances parents usually serve as guardians ad litem for their children); Orr v. Knowles, 337 N.W.2d 699, 705 (Neb. 1983) (explaining that parents are the natural guardians of their children); In re Lisa G., 504 A.2d 1, 5 (N.H. 1986) (providing that unless they are "unable or unwilling to act in the child's best interests" parents will serve as guardians ad litem for their children).
3. Appointments of guardians ad litem are generally authorized by legislation. Even in the absence of such authorization, however, courts have consistently ruled that they have the inherent power to appoint guardians ad litem if they believe they are needed to protect the interests of children. Welch v. Fox, 91 N.E. 145, 145 (Mass. 1910); Lisa G., 504 A.2d at 4; Moore v. Roxbury, 159 A. 357, 359 (N.H. 1932); 43 C.J.S. Infants § 228 (1978).
4. Some types of litigation in which guardians ad litem are commonly appointed for children include: abuse and neglect proceedings against one or both parents, criminal sexual conduct involving the child, divorce-custody disputes, termination of parental rights proceedings, adoptions, juvenile delinquency, cases involving medical and mental treatment issues (e.g., commitment proceedings), abortions without parental consent, and other civil lawsuits where parents are dead or are opposing parties.
5. Tara Lea Muhlhauser, From "Best" to "Better": The Interests of Children and the Role of a Guardian Ad Litem, 66 N.D. L. Rev. 633, 633 (1990); Edward Sokolnicki, Note, The Attorney as Guardian Ad Litem for a Child in Connecticut, 5 Conn. Prob. L. J. 237, 250 (1991).
6. Tara Lea Muhlhauser, From "Best" to "Better": The Interests of Children and the Role of a Guardian Ad Litem, 66 N.D. L. Rev. 633, 633 (1990); Edward Sokolnicki, Note, The Attorney as Guardian Ad Litem for a Child in Connecticut, 5 Conn. Prob. L. J. 237, 250 (1991).
7. See Kim J. Landsman & Martha L. Minow, Note, Lawyering for the Child: Principles of Representation in Custody and Visitation Disputes Arising From Divorce, 87 Yale L.J. 1126, 1127-28 & n.8, 1140 & n.63 (1978). In some jurisdictions, this hybrid is referred to as a law guardian. In re Maraziti, 559 A.2d 447, 450 (N.J. Super. Ct. App. Div. 1989); Bentley v. Bentley, 448 N.Y.S.2d 559, 560 (App. Div. 1982).
8. For the most complete lists of tasks assigned to guardians ad litem, see Landsman & Minow, supra note 6, at 1138 n.52; Wallace J. Mlyniec, The Child Advocate in Private Custody Disputes: A Role in Search of a Standard, 16 J. Fam. L. 1, 8-9 (1977-78).
9. Landsman & Minow, supra note 6, at 1138.
10. In re Barnthouse, 765 P.2d 610, 612 (Colo. Ct. App. 1988).
11. Jinanne S.J. Elder, The Role of Counsel for Children: A Proposal for Addressing a Troubling Question, Boston B.J., Jan.-Feb. 1991, at 6 (1991); Linda L. Long, When the Client is a Child: Dilemmas in the Lawyer's Role, 21 J. Fam. L. 607, 612-16 (1982-83); Gary Solomon, The Role and Ethical Responsibilities of the Law Guardian, in Child Abuse, Neglect, and the Foster Care System: 1995, at 1 (PLI Litig. & Admin. Practice Course Handbook Series No. C4-4210, 1995) ; Angela D. Lurie, Note, Representing the Child-Client: Kids are People Too: An Analysis of the Role of Legal Counsel to a Minor, 11 N.Y.L. Sch. J. Hum. Rts. 205, 205-07 (1993).
12. Jinanne S.J. Elder, The Role of Counsel for Children: A Proposal for Addressing a Troubling Question, Boston B.J., Jan.-Feb. 1991, at 6 (1991); Linda L. Long, When the Client is a Child: Dilemmas in the Lawyer's Role, 21 J. Fam. L. 607, 612-16 (1982-83); Gary Solomon, The Role and Ethical Responsibilities of the Law Guardian, in Child Abuse, Neglect, and the Foster Care System: 1995, at 1 (PLI Litig. & Admin. Practice Course Handbook Series No. C4-4210, 1995) ; Angela D. Lurie, Note, Representing the Child-Client: Kids are People Too: An Analysis of the Role of Legal Counsel to a Minor, 11 N.Y.L. Sch. J. Hum. Rts. 205, 205-07 (1993).
13. Jinanne S.J. Elder, The Role of Counsel for Children: A Proposal for Addressing a Troubling Question, Boston B.J., Jan.-Feb. 1991, at 6 (1991); Linda L. Long, When the Client is a Child: Dilemmas in the Lawyer's Role, 21 J. Fam. L. 607, 612-16 (1982-83); Gary Solomon, The Role and Ethical Responsibilities of the Law Guardian, in Child Abuse, Neglect, and the Foster Care System: 1995, at 1 (PLI Litig. & Admin. Practice Course Handbook Series No. C4-4210, 1995) ; Angela D. Lurie, Note, Representing the Child-Client: Kids are People Too: An Analysis of the Role of Legal Counsel to a Minor, 11 N.Y.L. Sch. J. Hum. Rts. 205, 205-07 (1993).
14. Jinanne S.J. Elder, The Role of Counsel for Children: A Proposal for Addressing a Troubling Question, Boston B.J., Jan.-Feb. 1991, at 6 (1991); Linda L. Long, When the Client is a Child: Dilemmas in the Lawyer's Role, 21 J. Fam. L. 607, 612-16 (1982-83); Gary Solomon, The Role and Ethical Responsibilities of the Law Guardian, in Child Abuse, Neglect, and the Foster Care System: 1995, at 1 (PLI Litig. & Admin. Practice Course Handbook Series No. C4-4210, 1995) ; Angela D. Lurie, Note, Representing the Child-Client: Kids are People Too: An Analysis of the Role of Legal Counsel to a Minor, 11 N.Y.L. Sch. J. Hum. Rts. 205, 205-07 (1993).
15. Jinanne S.J. Elder, The Role of Counsel for Children: A Proposal for Addressing a Troubling Question, Boston B.J., Jan.-Feb. 1991, at 6 (1991); Linda L. Long, When the Client is a Child: Dilemmas in the Lawyer's Role, 21 J. Fam. L. 607, 612-16 (1982-83); Gary Solomon, The Role and Ethical Responsibilities of the Law Guardian, in Child Abuse, Neglect, and the Foster Care System: 1995, at 1 (PLI Litig. & Admin. Practice Course Handbook Series No. C4-4210, 1995) ; Angela D. Lurie, Note, Representing the Child-Client: Kids are People Too: An Analysis of the Role of Legal Counsel to a Minor, 11 N.Y.L. Sch. J. Hum. Rts. 205, 205-07 (1993).
16. Model Rules of Professional Conduct Rule 1.2(a) (1983) [hereinafter Model Rules].
17. Cf. Landsman & Minow, supra note 6, at 1140-42 (explaining a guardian ad litem's role as fact finder).
18. Martin Guggenheim, The Right to Be Represented But Not Heard: Reflections on Legal Representation For Children, 59 N.Y.U. L. Rev. 76, 76-79 (1984).
19. State ex rel. Bird v. Weinstock, 864 S.W.2d 376, 384 (Mo. Ct. App. 1993) (citations omitted).
20. See Landsman & Minow, supra note 6, at 1135.
21. A child custody dispute is used for these examples because role definition issues occur most frequently in custody-visitation and abuse and neglect cases. Similar issues, however, can arise in most other situations in which guardians ad litem are appointed to represent children, though not in all. For example, guardians ad litem for children who are plaintiffs or defendants in tort litigation do not face an expectation that they will be independent fact finders for the court. The degree of the problem also varies from case to case.
22. Leary v. Leary, 627 A.2d 30, 39 (Md. Ct. Spec. App. 1993).
23. John O. v. Jane O., 601 A.2d 149, 163 (Md. Ct. Spec. App. 1992).
24. But see Utah Code Ann. § 62A-4-503 (1994) (requiring lawyers to report possible sex abuse, even if the information is received from clients whose interests may be jeopardized by such disclosures). See also Robert P. Mosteller, Child Abuse Reporting Laws and Attorney-Client Confidences: The Reality and the Specter of Lawyer as Informant, 42 Duke L.J. 203, 217 & n.40 (1992) (listing the states that require attorneys to report child abuse).
25. Model Rules, supra note 11, Rule 1.14 cmt. ("If a legal representative has already been appointed for the client, the lawyer should ordinarily look to the representative for decisions on behalf of the client.").
26. See, e.g., S.S. v. D.M., 597 A.2d 870, 877 (D.C. 1991) ("The definition of the precise roles of the attorney and the guardian ad litem for children is still evolving and not without difficulty."); Leary v. Leary, 627 A.2d 30, 37 (Md. Ct. Spec. App. 1993) ("A dichotomy exists between the attorney as guardian and the attorney as advocate, and the lines become very easily blurred.").
27. See, e.g., Elder, supra note 10, at 9-10 (suggesting that lawyers should advocate a child client's express wishes); Linda D. Elrod, Counsel for the Child in Custody Disputes: The Time is Now, 26 Fam. L.Q. 53, 69 (1992) (advocating the establishment of a publicly funded child-counsel program to protect children's interests); Guggenheim, supra note 13, at 79 (explaining the ethical dilemma of a lawyer for a young child); Long, supra note 10, at 611 (suggesting that each child client's situation be viewed on a case-by-case basis); Louis I. Parley, Representing Children in Custody Litigation, 11 J. Am. Acad. Matrim. Law. 45, 48 (1993) (suggesting that there is no one solution to the dilemma faced by an attorney representing a young child); Richard K. Schwartz, A New Role for the Guardian Ad Litem, 3 Ohio St. J. on Disp. Resol. 117, 117 (1987) (contending that a guardian ad litem should represent the child's best interests); Solomon, supra note 10, at 1 (suggesting that lawyers should present all relevant evidence of a child's interests); Lurie, supra note 10, at 207 (contending that lawyers should represent a child's desires); Robyn-Marie Lyon, Comment, Speaking of Children: The Role of Independent Counsel for Minors, 75 Cal. L. Rev. 681, 682 (1987) (suggesting that an attorney act as her child client's agent); Sokolnicki, supra note 5, at 260-61 (advocating a best interest approach).
28. See, e.g., Elder, supra note 10, at 9-10 (suggesting that lawyers should advocate a child client's express wishes); Linda D. Elrod, Counsel for the Child in Custody Disputes: The Time is Now, 26 Fam. L.Q. 53, 69 (1992) (advocating the establishment of a publicly funded child-counsel program to protect children's interests); Guggenheim, supra note 13, at 79 (explaining the ethical dilemma of a lawyer for a young child); Long, supra note 10, at 611 (suggesting that each child client's situation be viewed on a case-by-case basis); Louis I. Parley, Representing Children in Custody Litigation, 11 J. Am. Acad. Matrim. Law. 45, 48 (1993) (suggesting that there is no one solution to the dilemma faced by an attorney representing a young child); Richard K. Schwartz, A New Role for the Guardian Ad Litem, 3 Ohio St. J. on Disp. Resol. 117, 117 (1987) (contending that a guardian ad litem should represent the child's best interests); Solomon, supra note 10, at 1 (suggesting that lawyers should present all relevant evidence of a child's interests); Lurie, supra note 10, at 207 (contending that lawyers should represent a child's desires); Robyn-Marie Lyon, Comment, Speaking of Children: The Role of Independent Counsel for Minors, 75 Cal. L. Rev. 681, 682 (1987) (suggesting that an attorney act as her child client's agent); Sokolnicki, supra note 5, at 260-61 (advocating a best interest approach).
29. See, e.g., Elder, supra note 10, at 9-10 (suggesting that lawyers should advocate a child client's express wishes); Linda D. Elrod, Counsel for the Child in Custody Disputes: The Time is Now, 26 Fam. L.Q. 53, 69 (1992) (advocating the establishment of a publicly funded child-counsel program to protect children's interests); Guggenheim, supra note 13, at 79 (explaining the ethical dilemma of a lawyer for a young child); Long, supra note 10, at 611 (suggesting that each child client's situation be viewed on a case-by-case basis); Louis I. Parley, Representing Children in Custody Litigation, 11 J. Am. Acad. Matrim. Law. 45, 48 (1993) (suggesting that there is no one solution to the dilemma faced by an attorney representing a young child); Richard K. Schwartz, A New Role for the Guardian Ad Litem, 3 Ohio St. J. on Disp. Resol. 117, 117 (1987) (contending that a guardian ad litem should represent the child's best interests); Solomon, supra note 10, at 1 (suggesting that lawyers should present all relevant evidence of a child's interests); Lurie, supra note 10, at 207 (contending that lawyers should represent a child's desires); Robyn-Marie Lyon, Comment, Speaking of Children: The Role of Independent Counsel for Minors, 75 Cal. L. Rev. 681, 682 (1987) (suggesting that an attorney act as her child client's agent); Sokolnicki, supra note 5, at 260-61 (advocating a best interest approach).
30. See, e.g., Elder, supra note 10, at 9-10 (suggesting that lawyers should advocate a child client's express wishes); Linda D. Elrod, Counsel for the Child in Custody Disputes: The Time is Now, 26 Fam. L.Q. 53, 69 (1992) (advocating the establishment of a publicly funded child-counsel program to protect children's interests); Guggenheim, supra note 13, at 79 (explaining the ethical dilemma of a lawyer for a young child); Long, supra note 10, at 611 (suggesting that each child client's situation be viewed on a case-by-case basis); Louis I. Parley, Representing Children in Custody Litigation, 11 J. Am. Acad. Matrim. Law. 45, 48 (1993) (suggesting that there is no one solution to the dilemma faced by an attorney representing a young child); Richard K. Schwartz, A New Role for the Guardian Ad Litem, 3 Ohio St. J. on Disp. Resol. 117, 117 (1987) (contending that a guardian ad litem should represent the child's best interests); Solomon, supra note 10, at 1 (suggesting that lawyers should present all relevant evidence of a child's interests); Lurie, supra note 10, at 207 (contending that lawyers should represent a child's desires); Robyn-Marie Lyon, Comment, Speaking of Children: The Role of Independent Counsel for Minors, 75 Cal. L. Rev. 681, 682 (1987) (suggesting that an attorney act as her child client's agent); Sokolnicki, supra note 5, at 260-61 (advocating a best interest approach).
31. See, e.g., State v. Good, 417 S.E.2d 643, 645 (S.C. Ct. App. 1992) (holding that there was no privilege in the common law or statutes of South Carolina to prevent a guardian ad litem for two minor brothers from testifying that one of the children told him that the other child had the gun which was used to murder their father and grandmother).
32. See Ann M. Stanton, Child-Parent Privilege for Confidential Communications: An Examination and Proposal, 16 Fam. L.Q. 1, 24-27 (1982).
33. See Chaim Perelman, Justice, Law and Argument 83 (1967); Ray D. Dearin, Justice and Justification in the New Rhetoric, in Practical Reasoning in Human Affairs 155, 176 (James L. Golden & Joseph J. Pilotta eds., 1986).
34. See Chaim Perelman, Justice, Law and Argument 83 (1967); Ray D. Dearin, Justice and Justification in the New Rhetoric, in Practical Reasoning in Human Affairs 155, 176 (James L. Golden & Joseph J. Pilotta eds., 1986).
35. Ellen K. Solender, The Guardian Ad Litem: A Valuable Representative or an Illusory Safeguard?, 7 Tex. Tech. L. Rev. 619, 619 (1976); Landsman & Minow, supra note 6, at 1135 n.36 .
36. 2 Frederick Pollock & Frederic W. Maitland, The History of English Law 436-47 (2d ed. 1959).
37. The origins of the parens patriae justification are traced to England during the reign of Edward I (1272-1307). King Edward claimed wardship over children whose fathers (but not necessarily their mothers) had died or had otherwise become incapacitated, particularly those children with large estates. See Lawrence B. Custer, The Origins of the Doctrine of Parens Patriae, 27 Emory L.J. 195, 195 (1978); see also George B. Curtis, The Checkered Career of Parens Patriae: The State as Parent or Tyrant?, 25 Depaul L. Rev. 895, 895 (1976) (discussing the history of the doctrine of parens patriae). Children without property were not usually provided general guardians: The law, at all events the temporal law, was not at pains to designate any permanent guardians for children who owned no land. . . . . . . . This part of our law will seem strange to those who know anything of its next of kin. Here in England old family arrangements have been shattered by seignorial claims, and the king's court has felt itself so strong that it has had no need to reconstruct a comprehensive law of wardship. That the king should protect all who have no other protector, that he is the guardian above all guardians, is an idea which has become exceptionally prominent in this much governed country. The king's justices see no great reason why every infant should have a permanent guardian, because they believe they can do full justice to infants. The proceedings of self-constituted 'next friends' can be watched, and a guardian ad litem can be appointed whenever there is a need of one. Pollock & Maitland, supra note 27, at 444-45. The King claimed the right to appoint guardians for fatherless children with estates as part of the feudal tenurial system, not as parens patriae. His motivation was financial, not protective. See. Custer, supra, at 195-200. A parens patriae justification based on the conception of the King as the father of the country who has a duty to protect the welfare of his infant citizens was not advanced until the eighteenth century. Id. at 202-03 (citing Eyre v. Shaftsbury, 24 Eng. Rep. 659 (Ch. 1722)). The judiciary's jurisdiction over the care of infants and its right to exercise parens patriae power on behalf of the King did not become entrenched during the late seventeenth and early eighteenth centuries. Custer, supra, at 204-05 (citing another Court of Chancery case involving the Shaftsbury family, Shaftsbury v. Shaftsbury, 25 Eng. Rep. 121 (Ch. 1725)).
38. The origins of the parens patriae justification are traced to England during the reign of Edward I (1272-1307). King Edward claimed wardship over children whose fathers (but not necessarily their mothers) had died or had otherwise become incapacitated, particularly those children with large estates. See Lawrence B. Custer, The Origins of the Doctrine of Parens Patriae, 27 Emory L.J. 195, 195 (1978); see also George B. Curtis, The Checkered Career of Parens Patriae: The State as Parent or Tyrant?, 25 Depaul L. Rev. 895, 895 (1976) (discussing the history of the doctrine of parens patriae). Children without property were not usually provided general guardians: The law, at all events the temporal law, was not at pains to designate any permanent guardians for children who owned no land. . . . . . . . This part of our law will seem strange to those who know anything of its next of kin. Here in England old family arrangements have been shattered by seignorial claims, and the king's court has felt itself so strong that it has had no need to reconstruct a comprehensive law of wardship. That the king should protect all who have no other protector, that he is the guardian above all guardians, is an idea which has become exceptionally prominent in this much governed country. The king's justices see no great reason why every infant should have a permanent guardian, because they believe they can do full justice to infants. The proceedings of self-constituted 'next friends' can be watched, and a guardian ad litem can be appointed whenever there is a need of one. Pollock & Maitland, supra note 27, at 444-45. The King claimed the right to appoint guardians for fatherless children with estates as part of the feudal tenurial system, not as parens patriae. His motivation was financial, not protective. See. Custer, supra, at 195-200. A parens patriae justification based on the conception of the King as the father of the country who has a duty to protect the welfare of his infant citizens was not advanced until the eighteenth century. Id. at 202-03 (citing Eyre v. Shaftsbury, 24 Eng. Rep. 659 (Ch. 1722)). The judiciary's jurisdiction over the care of infants and its right to exercise parens patriae power on behalf of the King did not become entrenched during the late seventeenth and early eighteenth centuries. Custer, supra, at 204-05 (citing another Court of Chancery case involving the Shaftsbury family, Shaftsbury v. Shaftsbury, 25 Eng. Rep. 121 (Ch. 1725)).
39. 67A C.J.S. Parent and Child § 10 (1978).
40. I recognize that many judges believe that their charge to protect the best interests of children who appear before them imposes a responsibility to do more than simply base their rulings on the evidence presented to them in an adversarial proceeding and they think this requires them to act in loco parentis. Some scholars have embraced this as an appropriate role for judges. See Dana E. Prescott, The Liability of Lawyers as Guardians Ad Litem: The Best Defense is a Good Offense, 11 J. Am. Acad. Matrim. Law. 65, 69 (1993) ("This delegation [of authority to guardians ad litem] is for the purpose of assisting the court to act in the best interests of the child as a 'wise, affectionate and careful parent.'") (citations omitted). I question whether legislators really intend for judges to stand in the shoes of parents, rather than to use the doctrine of parens patriae to delegate the protection of children's interests to guardians ad litem. If so, the implications for redefining judges' roles and that of guardians ad litem is even more significant than I am suggesting. A policy requiring judges to act toward children as parents would affect their impartiality and interfere with the performance of their adjudicative responsibilities to other parties in litigation, whether they acted alone or with the assistance of an investigator/ guardian ad litem.
41. See, e.g., In re M.M., 431 N.W.2d 611, 612 (Neb. 1988) (stating that a guardian ad litem "appears to be an individual who steps into the position of the minor").
42. Although this paragraph quotes Neb. Rev. Stat. § 30-2608 (1979), it reflects the common law. 67A C.J.S. Parent and Child § 16 (1978).
43. Orr v. Knowles, 337 N.W.2d 699, 705 (Neb. 1983) (citations omitted).
44. Where a child is too immature to comprehend and participate in legal proceedings.
45. CHild In Need of Support.
46. In re Lisa G., 504 A.2d 1, 4 (N.H. 1986).
47. Landsman & Minow, supra note 6, at 1150, 1150-53 (citations omitted).
48. See Janet A. Chaplan, Youth Perspectives on Lawyers' Ethics: A Report of Seven Interviews, 64 Fordham L. Rev. 1763, 1783 (1996). In her article for this Conference, Janet Chaplan states: The youth's preference of thinking of their lawyers as protectors rather than simple advocates is particularly instructive. Most of them were not asking to be treated strictly as an adult client. Rather, they preferred their lawyers to play the role of responsible adults in their lives. . . . [T]hey often expected their lawyers to act as adults first, and as lawyers second. Id.
49. See Janet A. Chaplan, Youth Perspectives on Lawyers' Ethics: A Report of Seven Interviews, 64 Fordham L. Rev. 1763, 1783 (1996). In her article for this Conference, Janet Chaplan states: The youth's preference of thinking of their lawyers as protectors rather than simple advocates is particularly instructive. Most of them were not asking to be treated strictly as an adult client. Rather, they preferred their lawyers to play the role of responsible adults in their lives. . . . [T]hey often expected their lawyers to act as adults first, and as lawyers second. Id.
50. This view of the relationship between parental rights and children's rights is criticized by some who believe that our society has failed to recognize adequately the rights of children to make their own decisions. I do not intend here to indicate a position about that debate. My goal is to reflect the current state of the law in most jurisdictions. If the law changes, I would advocate that guardians ad litem should have the same powers and responsibilities as parents, whatever those happen to be.
51. See Victoria O'Donnell & June Kable, Persuasion: An Interactive Dependency Approach 22-23 (1982) [hereinafter Persuasion]; Malcom O. Sillars and Patricia Ganer, Values and Beliefs: A Systematic Basis for Argumentation, in Advances in Argumentation Theory and Research 184 (J. Robert Cox & Charles Arthur Willard eds., 1962).
52. See Victoria O'Donnell & June Kable, Persuasion: An Interactive Dependency Approach 22-23 (1982) [hereinafter Persuasion]; Malcom O. Sillars and Patricia Ganer, Values and Beliefs: A Systematic Basis for Argumentation, in Advances in Argumentation Theory and Research 184 (J. Robert Cox & Charles Arthur Willard eds., 1962).
53. See Victoria O'Donnell & June Kable, Persuasion: An Interactive Dependency Approach 22-23 (1982) [hereinafter Persuasion]; Malcom O. Sillars and Patricia Ganer, Values and Beliefs: A Systematic Basis for Argumentation, in Advances in Argumentation Theory and Research 184 (J. Robert Cox & Charles Arthur Willard eds., 1962).
54. Milton Rokeach, Change and Stability in American Value Systems 1968-1971, 38 Pub. Opinion Q. 222 (1974).
55. Persuasion, supra note 40, at 25-26.
56. Id. at 81-82.
57. Guggenheim, supra note 13, at 100-07.
58. Mlyniec, supra note 7, at 12.
59. Jean Koh Peters describes an integrative approach which guardians ad litem could use for determining the best interests of children in her article for this Conference, The Roles and Content of Best Interests in Client-Directed Lawyering for Children in Child Protective Proceedings, 64 Fordham L. Rev. 1505 (1996), which will be a chapter in her book, Representing Children in Child Protective Proceedings: Ethical and Practical Dimensions (forthcoming 1996 from the Michie Company). This will be a valuable resource for guardians ad litem who encounter difficulty in determining what is best for the children they represent.
60. See generally Peter Margulies, The Lawyer as Caregiver: Child Client's Competence in Context, 64 Fordham L. Rev. 1473 (proposing that three substantive factors should inform lawyering for incompetent children: (1) conserving continuity of caregiving, assessed with reference to the status quo before the commencement of legal proceedings; (2) promoting parents' commitment of time to their child's education; and (3) preventing violence against the child or other family members).
61. There are some other children's rights advocates who might argue for even greater autonomy in decision making than I have suggested. See Katherine Hunt Federle, On the Road to Reconceiving Rights for Children: A Postfeminist Analysis of the Capacity Principle, 42 DePaul L. Rev. 983, 983 (1993); Mlyniec, supra note 7, at 1. My position, however, is consistent with the position taken by those few courts which have recognized a parent-child privilege and with most other commentators. See Comment, The Child-Parent Privilege: A Proposal, 47 Fordham L. Rev. 771, 771 (1979) [hereinafter Child-Parent Privilege]; Developments in the Law: Privileged Communications, 98 Harv. L. Rev. 1450, 1450 (1985) [hereinafter Developments].
62. There are some other children's rights advocates who might argue for even greater autonomy in decision making than I have suggested. See Katherine Hunt Federle, On the Road to Reconceiving Rights for Children: A Postfeminist Analysis of the Capacity Principle, 42 DePaul L. Rev. 983, 983 (1993); Mlyniec, supra note 7, at 1. My position, however, is consistent with the position taken by those few courts which have recognized a parent-child privilege and with most other commentators. See Comment, The Child-Parent Privilege: A Proposal, 47 Fordham L. Rev. 771, 771 (1979) [hereinafter Child-Parent Privilege]; Developments in the Law: Privileged Communications, 98 Harv. L. Rev. 1450, 1450 (1985) [hereinafter Developments].
63. There are some other children's rights advocates who might argue for even greater autonomy in decision making than I have suggested. See Katherine Hunt Federle, On the Road to Reconceiving Rights for Children: A Postfeminist Analysis of the Capacity Principle, 42 DePaul L. Rev. 983, 983 (1993); Mlyniec, supra note 7, at 1. My position, however, is consistent with the position taken by those few courts which have recognized a parent-child privilege and with most other commentators. See Comment, The Child-Parent Privilege: A Proposal, 47 Fordham L. Rev. 771, 771 (1979) [hereinafter Child-Parent Privilege]; Developments in the Law: Privileged Communications, 98 Harv. L. Rev. 1450, 1450 (1985) [hereinafter Developments].
64. There are some other children's rights advocates who might argue for even greater autonomy in decision making than I have suggested. See Katherine Hunt Federle, On the Road to Reconceiving Rights for Children: A Postfeminist Analysis of the Capacity Principle, 42 DePaul L. Rev. 983, 983 (1993); Mlyniec, supra note 7, at 1. My position, however, is consistent with the position taken by those few courts which have recognized a parent-child privilege and with most other commentators. See Comment, The Child-Parent Privilege: A Proposal, 47 Fordham L. Rev. 771, 771 (1979) [hereinafter Child-Parent Privilege]; Developments in the Law: Privileged Communications, 98 Harv. L. Rev. 1450, 1450 (1985) [hereinafter Developments].
65. Model Rules, supra note 11, Rule 1.6. In relevant part, Rule 1.6 states that a lawyer may reveal confidences to the extent necessary: (1) to prevent the client from committing a criminal act that the lawyer believes is likely to result in imminent death or substantial bodily harm; or (2) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer's representation of the client. Id.
66. As explained earlier, I believe a guardian ad litem should control the ultimate decision to reveal information even if a child has requested that it be kept confidential.
67. Again, I would give a guardian ad litem more flexibility than the Model Rules allow lawyers. In some states, lawyers are allowed to reveal information necessary to prevent any crime or fraudulent act. I would embrace this more flexible rule for guardians ad litem. I would also go a bit further and endorse a new section of Model Rule 1.6 which was proposed during the Conference and recommended for future study: 1.6(b)(2) to prevent a client who is a(n) (unemancipated) minor from engaging in conduct likely to result in imminent death [or substantial bodily harm] to the client. The lawyer may reveal only the minimum information needed to prevent the harm, and shall do so in a manner designed to limit the disclosure to the people who reasonably need to know such information. Report of the Working Group on Confidentiality, 64 Fordham L. Rev. 1367, 1371 (1996).
68. Rebecca H. Heartz, Guardians Ad Litem in Child Abuse and Neglect Proceedings: Clarifying the Roles to Improve Effectiveness, 27 Fam. L.Q. 327, 336 (1993).
69. Child-Parent Privilege, supra note 48, at 771-72 (citations omitted).
70. 8 John H. Wigmore, Evidence in Trials at Common Law § 2285 (1961) (emphasis in original).
71. Stanton, supra note 24, at 7; Comment, Functional Overlap Between the Lawyer and Other Professionals: Its Implication for the Privileged Communications Doctrine, 71 Yale L.J. 1226, 1227 (1962) [hereinafter Functional Overlap].
72. Stanton, supra note 24, at 7; Comment, Functional Overlap Between the Lawyer and Other Professionals: Its Implication for the Privileged Communications Doctrine, 71 Yale L.J. 1226, 1227 (1962) [hereinafter Functional Overlap].
73. Functional Overlap, supra note 55, at 1227.
74. Stanton, supra note 24, at 8.
75. Model Rules, supra note 11, Rule 1.14.
76. Id. Rule 1.6 cmt.
77. Heartz, supra note 52, at 335.
78. Graham C. Lilly, An Introduction to the Law of Evidence § 9.6 (2d ed. 1987); Charles T. McCormick, McCormick on Evidence § 91 (4th ed. 1992).
79. Graham C. Lilly, An Introduction to the Law of Evidence § 9.6 (2d ed. 1987); Charles T. McCormick, McCormick on Evidence § 91 (4th ed. 1992).
80. Cal. Evid. Code § 952 (West 1994); see also De Los Santos v. Superior Court, 161 Cal. Rptr. 899, 901 (1980) (holding that a child's comments to his mother in a delinquency proceeding were protected because the mother was the child's court appointed guardian ad litem and the child's comments had mostly been made in response to questions asked at the request of the child's attorney).
81. Stanton, supra note 24, at 24-25.
82. See Child-Parent Privilege, supra note 48, at 786; see also Joseph A. Fawal, Comment, Questioning the Marital Privilege: A Medieval Philosophy in a Modern World, 7 Cumb. L. Rev. 307, 319 (1976) (criticizing the husband and wife privilege).
83. See Child-Parent Privilege, supra note 48, at 786; see also Joseph A. Fawal, Comment, Questioning the Marital Privilege: A Medieval Philosophy in a Modern World, 7 Cumb. L. Rev. 307, 319 (1976) (criticizing the husband and wife privilege).
84. See Daniel R. Coburn, Child-Parent Communications: Spare the Privilege and Spoil the Child, 74 Dick. L. Rev. 599, 599 (1969-70); Ellen Kandoian, The Parent-Child Privilege and the Parent-Child Crime: Observations on State v. Delong and In re Agosto, 36 Me. L. Rev. 59, 59 (1984); Stanton, supra note 24, at 25; Child-Parent Privilege, supra note 48, at 782-91. Of course, not all commentators agree on this. Some favor abolishing all privileges completely and leaving it to judges to determine whether testimony should be allowed on a case-by-case basis. See McCormick, supra note 61, § 77; Note, Privileged Communications: A Case by Case Approach, 23 Me. L. Rev. 443, 445 (1971).
85. See Daniel R. Coburn, Child-Parent Communications: Spare the Privilege and Spoil the Child, 74 Dick. L. Rev. 599, 599 (1969-70); Ellen Kandoian, The Parent-Child Privilege and the Parent-Child Crime: Observations on State v. Delong and In re Agosto, 36 Me. L. Rev. 59, 59 (1984); Stanton, supra note 24, at 25; Child-Parent Privilege, supra note 48, at 782-91. Of course, not all commentators agree on this. Some favor abolishing all privileges completely and leaving it to judges to determine whether testimony should be allowed on a case-by-case basis. See McCormick, supra note 61, § 77; Note, Privileged Communications: A Case by Case Approach, 23 Me. L. Rev. 443, 445 (1971).
86. See Daniel R. Coburn, Child-Parent Communications: Spare the Privilege and Spoil the Child, 74 Dick. L. Rev. 599, 599 (1969-70); Ellen Kandoian, The Parent-Child Privilege and the Parent-Child Crime: Observations on State v. Delong and In re Agosto, 36 Me. L. Rev. 59, 59 (1984); Stanton, supra note 24, at 25; Child-Parent Privilege, supra note 48, at 782-91. Of course, not all commentators agree on this. Some favor abolishing all privileges completely and leaving it to judges to determine whether testimony should be allowed on a case-by-case basis. See McCormick, supra note 61, § 77; Note, Privileged Communications: A Case by Case Approach, 23 Me. L. Rev. 443, 445 (1971).
87. See Daniel R. Coburn, Child-Parent Communications: Spare the Privilege and Spoil the Child, 74 Dick. L. Rev. 599, 599 (1969-70); Ellen Kandoian, The Parent-Child Privilege and the Parent-Child Crime: Observations on State v. Delong and In re Agosto, 36 Me. L. Rev. 59, 59 (1984); Stanton, supra note 24, at 25; Child-Parent Privilege, supra note 48, at 782-91. Of course, not all commentators agree on this. Some favor abolishing all privileges completely and leaving it to judges to determine whether testimony should be allowed on a case-by-case basis. See McCormick, supra note 61, § 77; Note, Privileged Communications: A Case by Case Approach, 23 Me. L. Rev. 443, 445 (1971).
88. Child-Parent Privilege, supra note 48, at 791; Stanton, supra note 24, at 13-22.
89. Developments, supra note 48, at 1589-90.
90. Child-Parent Privilege, supra note 48, at 782; Stanton, supra note 24, at 48-51.
91. It should be noted that the same argument has been leveled against the husband-wife privilege to no effect. Child-Parent Privilege, supra note 48, at 786-87.
92. See Developments, supra note 48, at 1578.
93. Kandoian, supra note 65, at 72; Stanton, supra note 24, at 7.
94. This moral dilemma was relied on in In re Agosto, 553 F. Supp. 1298 (D. Nev. 1983), as one of the factors that supported the court's recognition of a parent-child privilege. The court stated that requiring or coercing testimony "within the realm of the family in all possibility could be a complete exercise in futility." Id. at 1309.
95. Cf. In re Terry W., 130 Cal. Rptr. 913, 913-14 (Ct. App. 1976) (rejecting a claim that a parent-child privilege is constitutionally mandated). See also Child-Parent Privilege, supra note 48, at 797-98 (criticizing the Terry decision); Developments, supra note 48, at 1584 n.154 (discussing the Terry court's reluctance to create a parent-child privilege). There have been some exceptions. A U.S. District Court in Nevada not only found support for a parent-child privilege in the Constitution and in the Federal Rules of Evidence, but it also based its recognition of the privilege on the social policy arguments mentioned above. The court's decision barred the interrogation of the adult son of a person who was the target of a grand jury investigation. In re Agosto, 553 F. Supp. 1298 (D. Nev. 1983). New York appears to recognize a parent-child privilege, but perhaps not in Family Court cases. Although it avoided using the label "privilege," the New York Appellate Division held in 1978 that, if all members of the family seek to prevent disclosure, communications from a child to his parents about his participation in a crime may be constitutionally protected within the "private realm of family life which the state cannot enter." In re A & M, 403 N.Y.S.2d 375 (App. Div. 1978). The court in Harry R. v. Esther R., 510 N.Y.S.2d 792 (Fam. Ct. 1986), however, refused to recognize a parent-child privilege in a child visitation case to prevent a father from using tape recordings of conversations with his children. The court stated: Custody and visitation proceedings particularly require liberal access to all relevant and material evidence, since the court is required to assess not only facts but also emotions, perceptions and attitudes. Imposition of a parent-child privilege could be an odious burden on the court's ability to ascertain the emotional and mental status of the family members involved, and this court declines the respondent's application to create such a privilege. Id. at 795. Despite its refusal to recognize a privilege, the court did not allow the father to use the tapes: These children, like any other children, are entitled to feel that they may communicate freely with their parents without fear that those communications will be recorded and revealed later. The court cannot prevent Mr. R from recording these conversations. But it can preclude their use in this proceeding, although otherwise admissible, to protect the spirit of trust and confidence that needs to exist between child and parent in order for the children's emotional health to be safeguarded. Id. at 796. Although the court discussed A & M - especially the fact that it did not specifically recognize a parent-child privilege - it did not mention People v. Fitzgerald, 422 N.Y.S.2d 309 (Westchester Cty. Ct. 1979), which recognized a parent-child privilege that would prevent representatives of the State of New York from forcing disclosure of confidential communications between a parent and a child of any age. "In the opinion of this Court such a privilege can and does exist, grounded in law, logic, morality and ethics." Id. at 310.
96. Cf. In re Terry W., 130 Cal. Rptr. 913, 913-14 (Ct. App. 1976) (rejecting a claim that a parent-child privilege is constitutionally mandated). See also Child-Parent Privilege, supra note 48, at 797-98 (criticizing the Terry decision); Developments, supra note 48, at 1584 n.154 (discussing the Terry court's reluctance to create a parent-child privilege). There have been some exceptions. A U.S. District Court in Nevada not only found support for a parent-child privilege in the Constitution and in the Federal Rules of Evidence, but it also based its recognition of the privilege on the social policy arguments mentioned above. The court's decision barred the interrogation of the adult son of a person who was the target of a grand jury investigation. In re Agosto, 553 F. Supp. 1298 (D. Nev. 1983). New York appears to recognize a parent-child privilege, but perhaps not in Family Court cases. Although it avoided using the label "privilege," the New York Appellate Division held in 1978 that, if all members of the family seek to prevent disclosure, communications from a child to his parents about his participation in a crime may be constitutionally protected within the "private realm of family life which the state cannot enter." In re A & M, 403 N.Y.S.2d 375 (App. Div. 1978). The court in Harry R. v. Esther R., 510 N.Y.S.2d 792 (Fam. Ct. 1986), however, refused to recognize a parent-child privilege in a child visitation case to prevent a father from using tape recordings of conversations with his children. The court stated: Custody and visitation proceedings particularly require liberal access to all relevant and material evidence, since the court is required to assess not only facts but also emotions, perceptions and attitudes. Imposition of a parent-child privilege could be an odious burden on the court's ability to ascertain the emotional and mental status of the family members involved, and this court declines the respondent's application to create such a privilege. Id. at 795. Despite its refusal to recognize a privilege, the court did not allow the father to use the tapes: These children, like any other children, are entitled to feel that they may communicate freely with their parents without fear that those communications will be recorded and revealed later. The court cannot prevent Mr. R from recording these conversations. But it can preclude their use in this proceeding, although otherwise admissible, to protect the spirit of trust and confidence that needs to exist between child and parent in order for the children's emotional health to be safeguarded. Id. at 796. Although the court discussed A & M - especially the fact that it did not specifically recognize a parent-child privilege - it did not mention People v. Fitzgerald, 422 N.Y.S.2d 309 (Westchester Cty. Ct. 1979), which recognized a parent-child privilege that would prevent representatives of the State of New York from forcing disclosure of confidential communications between a parent and a child of any age. "In the opinion of this Court such a privilege can and does exist, grounded in law, logic, morality and ethics." Id. at 310.
97. Idaho Code § 9-203.7 (1990) provides: There are particular relations in which it is the policy of the law to encourage confidence and to preserve it inviolate; therefore, a person cannot be examined as a witness in the following cases: . . . . 7. Any parent, guardian or legal custodian shall not be forced to disclose any communication made by their minor child or ward to them concerning matter [matters] in any civil or criminal action to which such child or ward is a party. Such matters so communicated shall be privileged and protected against disclosure; excepting, this section does not apply to a civil action or proceeding by one against the other nor to a criminal action or proceeding for a crime committed by violence of one against the person of the other, nor does this section apply to any case of physical injury to a minor child where the injury has been caused as a result of physical abuse or neglect by one or both of the parents, guardian or legal custodian. Id.
98. But see Proposed American Bar Association Standards of Practice for Lawyers Who Represent Children in Abuse and Neglect Cases, 29 Fam. L.Q. 375, § B-2 (1995) [hereinafter Proposed Standards]. The Proposed Standards, which were approved by the Council of the ABA Family Law Section on August 5, 1995, incorrectly imply that Bentley v. Bentley, 448 N.Y.S.2d 559 (App. Div. 1982), recognizes a privilege between guardians ad litem and children in New York. In fact, Bentley relies on the standard attorney-client privilege to protect the confidentiality of the communications at issue in light of the fact that New York appoints lawyers to serve as "law guardians" who have the dual responsibility of advocating children's best interests and of serving as their lawyers.
99. As evidence of this expectation on behalf of children, see Chaplan, supra, note 38, at 1778-80, stating: All of the youths I spoke with had high regard for their lawyer's ability to keep their secrets and their lawyers' duty to protect them from abuse or neglect. . . . Except for Curtis, all the youths expected their lawyers to report suspected abuse or neglect, even when the rules of confidentiality would require the attorney to keep silent regarding a client confidence. Again, all the youths except for Curtis believed that the lawyer's primary obligation was to protect the client's safety. In response to the hypothetical situation of a client telling of an incident of abuse in confidence, each youth commented that the lawyer should notify the authorities and first protect the child, despite the child's expectation of confidentiality. . . . . Neil added that lawyers should discuss the problem with the child and determine how to protect the child before reporting the suspected abuse or neglect. Id.
100. See Child-Parent Privilege, supra note 48, at 805; see also Developments, supra note 48, at 1576-77 (discussing various approaches to a privilege).
101. See Child-Parent Privilege, supra note 48, at 805; see also Developments, supra note 48, at 1576-77 (discussing various approaches to a privilege).
102. See, e.g., In re Elainne M., 601 N.Y.S.2d 481, 482 (App. Div. 1993) (holding that a guardian ad litem should be relieved because the child lacked trust in and could not communicate with the guardian ad litem).
103. Child-Parent Privilege, supra note 48, at 806 (citation omitted).
104. Kandoian, supra note 65, at 82-83.
105. It is extremely important that children not be misled by their legal representatives, even though it might appear to be more efficient to do so. [C]hildren are far less likely than adults to assume that their confidences will be protected. To the extent children's perceptions counsel them to hold their tongues, however, [guardians ad litem] will have a strong motivation to foster a relationship that encourages children to speak freely. While scrupulous [guardians ad litem] will stop short of promising secrecy (the classic confidentiality protection) when they know they may not be able to honor that promise, they will find it easier to encourage children to believe that they are "on their side" - that they will use the information the child provides to help the child achieve his desired ends. As in the entity context, the child's confidences, gained under false pretenses, can prove invaluable to the [guardian ad litem's] assessment of, and advocacy for, the child's best interests. But the value of the information cannot outweigh the injustice done to the child by using professional smoke and mirrors to trick the child into trusting the [guardian ad litem] too much. Emily Buss, "You're My What?": The Problem of Children's Misperceptions of Their Lawyers' Roles, 64 Fordham L. Rev. 1699, 1738-40.
106. The Proposed Standards, supra note 75, § B-2, state that the lawyer should continue to perform as the child's attorney and withdraw as guardian ad litem if a lawyer appointed as a guardian ad litem determines that there is a conflict caused by performing both the roles of guardian ad litem and child's attorney. Id. The participants in discussions at this symposium also appear to favor this default position. I disagree. If a child involved in litigation has a representative serving both roles who must choose between these roles, I feel that the child's greater need is to have a representative who is charged with protecting the child's best interest, not simply following the child's instructions. Also, if a lawyer chooses to perform the best interest-surrogate parent role, there are no ethical constraints on a person in that role requesting the appointment of a lawyer for the child, if the guardian ad litem determines it would be in the child's best interest. It is not clear that a lawyer who assumes the role of a pure advocate would have the same option or that a lawyer could ask for the appointment of a guardian ad litem or could do so without sending a message to the court that the lawyer and the child disagree about the direction of the litigation.
107. The Proposed Standards, supra note 75, § B-2, state that the lawyer should continue to perform as the child's attorney and withdraw as guardian ad litem if a lawyer appointed as a guardian ad litem determines that there is a conflict caused by performing both the roles of guardian ad litem and child's attorney. Id. The participants in discussions at this symposium also appear to favor this default position. I disagree. If a child involved in litigation has a representative serving both roles who must choose between these roles, I feel that the child's greater need is to have a representative who is charged with protecting the child's best interest, not simply following the child's instructions. Also, if a lawyer chooses to perform the best interest-surrogate parent role, there are no ethical constraints on a person in that role requesting the appointment of a lawyer for the child, if the guardian ad litem determines it would be in the child's best interest. It is not clear that a lawyer who assumes the role of a pure advocate would have the same option or that a lawyer could ask for the appointment of a guardian ad litem or could do so without sending a message to the court that the lawyer and the child disagree about the direction of the litigation.
108. See supra note 51.
109. I do not intend to imply that it would be unreasonable for a state to make a different choice and to mandate reporting possible sexual abuse as a matter of public policy.