Rule V - Guardians ad LitemA. EthicsGuardians ad Litem are bound by Iowa's ethics rules in all matters except as dictated by the absence of a traditional attorney-client relationship with the child and the particular requirements of their appointed tasks. Even outside of an attorney-client relationship, all lawyers have certain ethical duties toward the court, parties in a case, the justice system, and the public.
Commentary
[1] Siblings with conflicting views do not pose a conflict of interest for a Guardian ad Litem, because such a lawyer is not bound to advocate a client's objective. A Guardian ad Litem in such a case should report the relevant views of all the children in accordance with Standard V.E. 3, and advocate the children's best interests in accordance with Standard V.E. 1.B. ConfidentialityA child's communications with the Guardian ad Litem are subject to Iowa's ethics rules on attorney-client confidentiality, except that the lawyer may also use the child's confidences for the purposes of the representation without disclosing them.
Commentary
[1] Iowa Rule of Professional Conduct 32:1.6(a) bars any release of information except for disclosures that are "impliedly authorized in order to carry out the representation." Under rule 32:1.6, a lawyer may reveal confidences "to prevent reasonably certain death or substantial bodily harm," "to comply with other law or a court order," or for other named reasons. As for communications that are not subject to disclosure under these or other applicable ethics rules, a Guardian ad Litem may use the communications to further the child's best interests without disclosing them. An example of this distinction is if a child tells the lawyer that a parent takes drugs: the lawyer may seek and present other evidence of the drug use, but may not reveal that the initial information came from the child. For more discussion of exceptions to confidentiality, see the Commentary to Standard IV.A.C. Explaining role to the childIn a developmentally appropriate manner, the Guardian ad Litem should explain to the child that the Guardian ad Litem will (1) investigate and advocate the child's best interests, (2) investigate the child's views relating to the case and will report them to the court unless the child requests that they not be reported, and (3) use information from the child for those purposes, but (4) not necessarily advocate what the child wants as a lawyer for a client would.
D. InvestigationsThe Guardian ad Litem should conduct thorough, continuing, and independent investigations, including:
1. Reviewing any court files of the child and of siblings who are minors or are still in the home, potentially relevant court files of parties and other household members, and case-related records of any social service agency and other service providers.2. Reviewing the child's social services records, if any, mental health records (except as otherwise provided in Standard VI.A.3), drug and alcohol-related records, medical records, law enforcement records, school records, and other records relevant to the case.3. Contacting lawyers for the parties, and nonlawyer representatives or court-appointed special advocates (CASAs).4. Contacting and meeting with the parties with permission of their lawyers.5. Interviewing individuals significantly involved with the child, who may in the Guardian ad Litem's discretion include, if appropriate, case workers, caretakers, neighbors, relatives, school personnel, coaches, clergy, mental health professionals, physicians, law enforcement officers, and other potential witnesses.6. Reviewing the relevant evidence personally, rather than relying on other parties' or counsel's descriptions and characterizations of it.7. Staying apprised of other court proceedings affecting the child, the parties, and other household members.Commentary
[1] Relevant files to review include those concerning child protective services, developmental disabilities, juvenile delinquency, mental health, and educational agencies. These records can provide a more complete context for the current problems of the child and family. Information in the files may suggest additional professionals and lay witnesses who should be contacted.[2] Though courts should order automatic access to records, the Guardian ad Litem may still need to use subpoenas or other discovery or motion procedures to obtain the relevant records, especially those pertaining to the parties.[3] Meetings with the child and all parties are among the most important elements of a competent investigation. However, there may be a few cases where a party's lawyer will not allow the Guardian ad Litem to communicate with the party. Iowa Rule of Professional Conduct 32:4.2 prohibits such contact without consent of the party's lawyer. In some such cases, the Guardian ad Litem may be able to obtain permission for a meeting with the party's lawyer present. When the party has no lawyer, rule 32:4.3 allows contact but requires reasonable efforts to correct any apparent misunderstanding of the Guardian ad Litem's role.[4] The parties' lawyers may have information not included in any of the available records. They can provide information on their clients' perspectives.E. Advocating the child's best interests1. Any assessment of, or argument on, the child's best interests should be based on objective criteria as set forth in the law related to the purposes of the proceedings.2. Guardians ad Litem should bring to the attention of the court any facts that when considered in context seriously call into question the advisability of any agreed settlement.3. At hearings on custody or parenting time, Guardians ad Litem should present the child's expressed desires (if any) to the court, except for those that the child expressly does not want presented.Commentary
[1] Determining a child's best interests is a matter of gathering and weighing evidence, reaching factual conclusions, and then applying legal standards to those interests. Factors in determining a child's interests are generally stated in Iowa's statutes and case law, and Guardians ad Litem must be familiar with these factors and how courts apply them. A child's desires are usually one of many factors in deciding custody and parenting time, and the weight given the desires varies with age and circumstances.[2] A Guardian ad Litem is functioning in a nontraditional role by determining the position to be advocated independently of the client. The Guardian ad Litem should base this determination on objective criteria concerning the child's needs and interests and not merely on the Guardian ad Litem's personal values, philosophies, and experiences. A best-interests case should be based on Iowa's governing statute and case law, or a good-faith argument for modification of case law. The Guardian ad Litem should not use any other theory, doctrine, model, technique, ideology, or personal rule without explicitly arguing for it in terms of governing law or the best interests of the child. The trier of fact needs to understand any such theory in order to make an informed decision in the case.[3] The Guardian ad Litem must consider the child's individual needs. The child's various needs and interests may be in conflict and must be weighed against each other. The child's developmental level, including the child's sense of time, is relevant to an assessment of needs. The lawyer may seek the advice and consultation of experts and other knowledgeable people in determining and weighing such needs and interests.[4] As a general rule Guardians ad Litem should encourage, not undermine, settlements. However, in unusual cases where the Guardian ad Litem reasonably believes the settlement would endanger the child and the court would not approve the settlement were it aware of certain facts, the Guardian ad Litem should bring those facts to the court's attention. This should not be done by ex parte communication. The Guardian ad Litem should ordinarily discuss the Guardian ad Litem's concerns with the parties and counsel in an attempt to change the settlement before involving the judge.F. AppealsIf an appeal on behalf of the child is permitted, the Guardian ad Litem should appeal when the Guardian ad Litem believes that (1) the trial court's decision is significantly detrimental to the child's welfare, (2) an appeal could be successful considering the law, the standard of review, and the evidence that can be presented to the appellate court, and (3) the probability and degree of benefit to the child outweighs the probability and degree of detriment to the child from extending the litigation and expense that the parties will undergo. See Iowa R. App. P. 6.109(4).
Iowa. Stand. Prac. Lawy. Repre. Child. Cust. Case. V