2000-02

QUESTION:

“I am serving as an appointed guardian ad litem in a
juvenile case. I have not attended any formal training or
other courses pertaining to an attorney’s responsibilities
as a guardian ad litem, however, I have read the guardian
ad litem manual prepared for the Children’s Justice Task
Force. I have become aware from other sources that certain
jurisdictions consider it appropriate for a guardian ad
litem to communicate directly and ex parte with the court.

This is a request for a formal opinion on the following
question: Under the Alabama Rules of Professional Conduct,
may a guardian ad litem communicate ex parte with the
court?”

* * *

ANSWER:

An attorney who has been appointed guardian ad litem is
ethically prohibited from communicating ex parte with the
trial judge concerning any substantive issue before the
court.

DISCUSSION:

The argument has been advanced that guardians ad litem,
rather than being advocates for their wards, are more
appropriately considered advisors to the court, and,
therefore, should be permitted to have ex parte
communication with the judge. However, this is not the
case in Alabama.

The Court of Civil Appeals of the State of Alabama
has conclusively held that guardians ad litem are advocates
for their wards and the role of the guardian ad litem in
the adjudicatory process is not different from that of any
other advocate.

“The guardian ad litem … is an officer of
the court and is entitled to argue his client’s
case as any other attorney involved in the
case.” S.D. v. R.D., 628 So.2d 817, 818
(Ala. Civ.App. 1993)

Download PDF