Let me see if I have this straight.You have two different GAL cases with different case numbers.Situation one involves maternal grandmother R. She had custody of grandkids. She wants them back.
Situation two involves paternal grandparents N and J. They had meth-user, teen-mom T in their home but don’t want her or her baby back. But they do want those same grand kids to raise.
You are guardian ad litem for the teen mom T in one case (or two cases), and also for the kids under a completely different case number.
The question is whether you have a conflict representing teen mom T and the kids. You didn’t say whether T and the kids are somehow related, but it may not matter.
Conflicts of interest take two forms, confidentiality and loyalty.
Rule of Professional Conduct 1.6 forbids revealing client confidences. Sometimes representing two clients causes a confidentiality conflict because confidences of one client would be helpful to the other. Generally GAL’s don’t have confidentiality conflicts because the client communications are not confidential. Regardless, I don’t see how things you might have learned from talking with teen-mom T would, if revealed in the termination hearing of the kids, harm T. Or vice versa.
Rules of Professional Conduct 1.7, 1.8, and 1.9 are the loyalty-conflict rules. In reverse order, 1.9 relates to present representation of a party on the opposite side from a former client, in the same matter or a related matter, which is not the case here. 1.8 is a grab bag of specific conflict situations, none of which apply to this situation. 1.7 is more pertinent here.
1.7 says, in (a) we can’t represent clients who are on the opposite sides of a matter. You aren’t doing that. 1.7 in (b) says, more broadly, that we can’t represent one client if our representation is materially limited by our responsibilities to another client.
RPC 1.7(b) is as close as you are getting to a conflict. If your representation of the kids may be materially limited by your responsibilities to T, or your representation of T may be materially limited by your responsibilities to the kids, then you have a conflict.
Nota bene, if you decide you have a conflict, T and the kids can’t waive it. They ain’t competent. That’s why they have a GAL.
A recent discussion of 1.7 (b) appears in The Colorado Lawyer, October 2003, in a good ethics article, the “Conflicts” portion beginning on p. 32.
So. What you have to decide, or the grandparents have to show the trial court, is that your “loyalty to a client is also impaired when a lawyer cannot consider, recommend or carry out an appropriate course of action for the client because of the lawyer’s other responsibilities or interests.” RPC 1.7, Comment.
I don’t think you are even close to a conflict. If I have the facts above correct, the interests of your two sets of clients don’t have anything to do with one another. Your responsibilities to T and the kids may conflict with the desires of the grandparents, but that’s not your problem. It is only mildly interesting that the paternal grandparents happen to be involved in two of your cases. That happens to me all the time. You have no duties of loyalty to the grandparents.
If T were the kids’ mother; that would be a conflict.
If T had sexually abused the kids and might continue; that might be a conflict.
If the kids and T were all going to live in the same home; that might be a conflict.
But not two separate termination hearings, in separate cases, with separate children, at separate times, even if some of the parties are the same.
Or I could be completely wrong.
—– Original Message —–
Subject: Conflict between children
Hello Everybody – I need some assistance. I apologize in advance for the long factual story.
I represent children as GAL in a case that opened in May. The parents are not compliant with their treatment plan and we just removed the children from Maternal Grandmother’s custody. The case is now getting ugly. We were headed in an APR direction and now we will be setting it for termination.
I also represent a teen mom as a child in a D&N and I am the GAL for her as the parent as well. Those cases opened in September. She has a permanency goal of OPPLA.
Paternal Grandparents N & J of two of the children are the guardians of the teen mom, T. The Paternal Grandparents have been the guardian of T since she was 3 years old. They do not wish to reunify or be considered for placement of her baby. I do not recommend reunification. T is BCOP and a meth user. While in living at N’s home T left her daughter alone for several hours and was using meth.
The allegations which precipitated the removal of the young children from R’s care (maternal grandma) is that she was allowing mom to live in the home, dad to have contact and the 1 1/2 year old was found wandering the streets. Upon removal of the children, R, maternal grandmother, was verbally abusive to police and caseworker in front of children.
Paternal grandmother wants to be considered for placement of the young children. Her home study was denied because of the active D&N case with T. She also allowed Dad contact with his son. T, the father and paternal grandparents are the reporting parties that provided the information that mom was living in the home with maternal grandparents and the children. All visitation between is suspended between mom, dad and children for lack of compliance.
Attorneys for dad and the maternal grandparents have reserved their right to ask for my removal stating that I may have a conflict.
I do not believe there is a conflict between the children. I do not believe my representation of the these children is compromised in any way. I anticipate that one or both of them may ask that I be removed from both cases due to a conflict. I don’t believe T ever had contact with the children.