6-2 Lawyers Acting as Guardians Ad Litem or as Attorney for a Minor Child
Lawyers acting as guardians ad litem or as counsel for the minor child are officers of the court and are entitled to absolute judicial immunity except for compliance with the Rules of Professional Responsibility.38 There is also a separate Code of Conduct for Counsel for the Minor Child and Guardians Ad Litem that imposes duties in addition to their professional ethical duties. These lawyers have "hybrid" duties both as an advocate and to act in the best interests of the child.39
The signal case dealing with attorneys who represent children in family proceedings is Carrubba v. Moskowitz.40 Carrubba involved a civil suit by a parent against an attorney appointed as an attorney for a minor child pursuant to Statutes § 46b-54.41 The Appellate Court, in affirming the trial court's dismissal of the matter, found that the attorney was entitled to qualified or quasi-judicial immunity. The Supreme Court, however, found that the more encompassing absolute judicial immunity was the correct standard to apply. In doing so, the Supreme Court adopted the analysis of the Appellate Court that for the purposes of immunity analysis, the functions of guardian-ad-litem and attorney for the minor child were comparable.42
Beyond the immunity analysis, the functions of attorney for the minor child and guardian ad litem are not the same, though many treat them as such. The attorney for the child is just that, an advocate. She should advance the child's expressed interests, though she may rely on the provisions of Rule 1.14 concerning impaired clients if the child is unable to articulate choices due to age or for other reasons. Guardians ad litem are officers of the court, and must attorn to the court. Their focus is the best interests of the child. These differences mean that things that an attorney for the minor child learns are subject to the attorney-client privilege whereas things learned as a guardian ad litem are not.43
In Carrubba, the Supreme Court did not address the issue of whether the defendant lawyer owed the plaintiff any duty of care, and, thus, would be exposed to a malpractice claim because the issue was mooted by the presence of immunity.44 The court did, however, hold that the plaintiff in that case (one parent) lacked standing to prosecute a malpractice action on behalf of the minor child.45 Nevertheless, the court did note that regardless of the immunity from suit, the attorney remained liable for ethical violations, though it referenced the Code of Professional Conduct rather than the Rules of Professional Conduct.46 This is in accord with other jurisprudence holding attorneys liable for ethical transgressions despite being immune from civil suit.47 Guardians ad litem are not state employees for immunity purposes.48 Guardians ad litem and counsel for minor children are...
