LEGAL AND ETHICAL ISSUES CONFRONTING GUARDIAN AD LITEM PRACTICE

Abstract

Courts appoint guardians ad litem (GALs) to protect the interests of the courts' most vulnerable populations. This widespread utilization of GAL appointments results in GALs performing diverse tasks including fact investigator, mental health evaluator, next friend attorney, family mediator, and child's attorney. Their valuable work, however, is not without legal and ethical uncertainty. Incompatible ethical mandates, sparse statutory guidance, and undeveloped case law compound these quandaries. This Article explores several important legal and ethical issues impacting modern GAL practice. Part I briefly reviews the functions that GALs serve in the nation's family and juvenile courts. Part II examines a number of legal and ethical issues surrounding GAL practice, exploring the guidance given or predicaments created by various statutes, case law, and professional rules of conduct. In particular, dilemmas surrounding dual appointments, non-confidentiality warnings, third-party access to records, waiver of privilege for a minor's treatment records, the contents of the GAL report, and the safety of the GALs are considered. This Article brings to the forefront some difficult questions, compares differing approaches taken by jurisdictions, and discusses resolutions to these legal and ethical issues.