Friday, December 8, 2006
When I want my students to explore one of the most difficult aspects of child representation, I ask them to consider the duty of confidentiality and the best interests of the child dilemma. The West Virginia Supreme Court recently addressed that very dilemma in an abuse and neglect case. The child who was the subject of that proceeding, a 15-year-old girl, had disclosed to the guardian ad litem that her mother's boyfriend had sexually molested her, but had requested that the guardian ad litem not disclose the information. The GAL honored that request, believing that her duty of confidentiality to her client demanded silence. Family services allowed the client's mother and boyfriend to have unsupervised visitation with her. Some months later, both a case worker and a foster care worker reported that the client had disclosed the prior sexual misconduct, and also disclosed that she had spoken to the GAL about the matter. The division of family services then moved to have the GAL removed because of her failure to report the earlier conversation with the client.
The circuit court denied the motion on the grounds of attorney-client confidentiality. The supreme court disagreed however. The court reasoned that the rules of professional conduct do apply to a GAL's represenation "because many aspects of a guardian ad litem's representation of a child in an abuse and neglect proceeding comprise duties that are performed by a lawyer on behalf of a client." However, rather than an absolute rule of confidentiality, the court analyzed the GAL's representation of a child under Rule 1.14 (Client under disability) and noted that a child's direction to an attorney must be given some degree of consideration but it is not binding as would be a competent adult client's direction. The court held that the GAL's dual role as representative of the child and representative of the court required balancing the confidentiality duty. It held "Where honoring the duty of confidentiality would result in the children'ss exposure to a high risk of probable harm, the guardian ad litem must make a disclosure to the presiding court in order to safeguard the best interests of the child." However, since the information had been disclosed, the court concluded that the trial court did not abuse its discretion in refusing to remove the GAL.
In re Christina W, Sissy W and Lisa W, 2006 W. Va. LEXIS 131 (November 29, 2006)
(Opinion on the web) (last visited December 5, 2006 bgf)