March 22, 2000
A lawyer appointed as lawyer-guardian ad litem for a minor in a child protective proceeding may prepare a written report to the court as long as the lawyer does not reveal the child/client's confidences and secrets.
References: MRPC 1.6; RI-261, RI-54, RI-111, RI-106; JI-32.
A lawyer accepts an appointment to represent a minor in a child protective proceeding. The lawyer receives as part of the appointment process, a form letter from the Circuit Court that states:
"Attorney Responsibilities . . . the following list is a summary of expectations of the attorney for the child(ren): . . . 3. A one to two-page written report from the attorney is to be filed with the Court at least one week prior to the adjudication or termination hearing. An oral report will not be acceptable! The report should address the condition of the child, the concerns of the child, the concerns of the lawyer for the child and any recommendations of the lawyer."
The lawyer is concerned that this directive from the court may require the sharing of information that is protected by the attorney/client privilege, and/or may be a violation of the Michigan Rules of Professional Conduct. The answer to this inquiry depends on the statutory authority relied on by the court making the appointment because the court can appoint a guardian ad litem or a lawyer-guardian ad litem.
If the court appoints the lawyer to serve as guardian ad litem under MCLA 700.24 and/or MCR 5.201, no lawyer/client relationship exists, and the lawyer should disclose all information requested by the court. See MCR 5.201(E)(2).
In this case, however, the lawyer receives from the appointing judge an assignment as lawyer-guardian ad litem, whose duties and responsibilities are governed by MCLA 712A.17d. In this service, the lawyer acts as an advocate for the minor and an attorney/client relationship exists. The appointed lawyer-guardian ad litem is bound to abide by the Rules of Professional Conduct and specifically MRPC 1.6(a),(b) and (c) , Confidentiality of Information that states:
"(a) 'Confidence' refers to information protected by the client-lawyer privilege under applicable law, and 'secret' refers to other information gained in the professional relationship that the client has requested be held inviolate or the disclosure of which would be embarrassing or would be likely to be detrimental to the client.
(b) Except when permitted in paragraph (c) above, a lawyer shall not knowingly:
(1) reveal a confidence or secret of a client;
(2) use a confidence or secret of a client to the disadvantage of the client; or
(3) use a confidence or secret of a client for the advantage of the lawyer or of a third person, unless the client consents after full disclosure.
(c) A lawyer may reveal:
(1) confidences or secrets with the consent of the client or clients affected, but only after full disclosure to them;
(2) confidences or secrets when permitted or required by these rules, or when required by law or by court order;
(3) confidences and secrets to the extent reasonably necessary to rectify the consequences of a client's illegal or fraudulent act in the furtherance of which the lawyer's services have been used;
(4) the intention of a client to commit a crime and the information necessary to prevent the crime; and
(5) confidences or secrets necessary to establish or collect a fee, or to defend the lawyer or the lawyer's employees or associates against an accusation of wrongful conduct."
There is nothing to suggest that any of the exceptions contained in MRPC 1.6(c) exist. There is no indication of client consent to disclosure of confidential or secret information. The lawyer has not received a subpoena or Order. The Committee is not presented with information of the client's involvement in illegal or fraudulent acts, or of the client's intention to commit a crime. The lawyer is not collecting a fee or responding to claims of wrongdoing. Thus, the lawyer should not reveal any client confidences or secrets in his or her written reports or oral statements.
Confidences or secrets are defined in 1.6(a): 'Confidence' refers to information protected by the client-lawyer privilege under applicable law, and 'secret' refers to other information gained in the professional relationship that the client has requested be held inviolate or the disclosure of which would be embarrassing or would be likely to be detrimental to the client."
Although what constitutes privileged information is a question of law and beyond the scope of the Committee's jurisdiction, the procedures for responding to such requests are clear. See JI-32. A lawyer who is asked to produce information that is covered by the attorney-client privilege or that contains confidences and secrets within MRPC 1.6, and with regard to which the client does not consent to disclosure, must await a subpoena, exercise the attorney-client privilege, and await the presiding judge's instruction of whether to release the information. RI-261, RI-54, RI-111, RI-106; JI-32.
It is permissible for the lawyer-guardian ad litem to prepare a report as long as the lawyer complies with MRPC 1.6.