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  1. #1
    Join Date
    Nov 2011
    Posts
    24

    Unhappy Guardian Ad Litem vs. Attorney

    My question involves criminal law for the state of: Ala.

    I went to court and I thought I was being represented by an attorney. The Juvenile PO officer said he was my attorney. He has signed court papers that say “attorney for minor child.” After the case the “order” said I was represented by a “guardian ad litem.” When he was questioned by my mom he said he was my guardian ad litem and not my attorney and what we had talked about and what we do talk about is not confidential.

    If he signed a court paper, a motion, saying he is my attorney is he my attorney and is what I told he confidential?

    He has also told me I don't need an attorney and if I ask for one he will not be able to help me anymore.

  2. #2
    Join Date
    Nov 2011
    Posts
    24

    Default Re: Guardian Ad Litem vs. Attorney

    I may have found the answer to my own question.

    --------------------------------------------------

    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)
    Additionally, the statutory provision which governs the appointment and payment of guardians ad litem in juvenile cases expressly states that it is the duty of the guardian ad litem to act as advocate for the ward. Code of Alabama, 1975, §§ 15-12-21(b) & (c), provide as follows:
    (b) If it appears to the trial court in a delinquency case, need of supervision case, or other judicial proceeding in which a juvenile is a party, that the juvenile is entitled to counsel and that the juvenile is not able financially or otherwise to obtain the assistance of counsel or that appointed counsel is otherwise required by law, the court shall appoint counsel to represent and assist the juvenile or act in the capacity of guardian ad litem for the juvenile. It shall be the duty of the appointed counsel, as an officer of the court and as a member of the bar, to represent and assist the juvenile to the best of his or her ability. (c) If it appears to the trial court that the parents, guardian or custodian of a juvenile who is a party in a judicial proceeding, are entitled to counsel and the parties are unable to afford counsel, upon request, the court shall appoint counsel to represent and assist the parents, guardian or custodian. It shall be the duty of the appointed counsel, as an officer of the court and as a member of the bar, to represent and assist the parties to the best of his or her ability. It is, therefore, the opinion of the Disciplinary Commission that attorneys who are appointed guardians ad litem are advocates for their wards just as, and in the same manner, as retained attorneys are advocates for their clients. Accordingly, guardians ad litem are subject to the same prohibition against ex parte communication with the court as are all other lawyers involved in the adjudicatory process.
    The prohibition applicable to attorneys is codified in Rule 3.5 of the Rules of Professional Conduct which provides as follows:
    "Rule 3.5 Impartiality and Decorum Of The Tribunal
    A lawyer shall not:
    (a) Seek to influence a judge, juror, prospective juror or other official by means prohibited by law;
    (b) Communicate ex parte with such a person except as permitted by law; …."
    A similar prohibition applicable to judges is found in the Canons of Judicial Ethics. Canon 3(A).(4) of the Canons of Judicial Ethics provides as follows:

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