by Christian, civil trial attorney, RL Johnson
To defend the cause of the weak and fatherless and maintain the rights of the poor and oppressed is the highest calling of the Christian lawyer. Toward this end. I am publishing this series of pieces for lawyers who dedicate a portion of their practice to the service of children.
“Whoever welcomes one of these little children in my name welcomes me; and whoever welcomes me does not welcome me but the one who sent me.”
Is the Lawyer-Guardian Ad Litem ("L-GAL") required to take protective action to prevent potential adverse consequences to the child when the L-GAL reasonably believes that the client cannot adequately act in the client’s own interest? E.g., a child communicates a desire to recant an oath or a statement made to the police.
Controlling legal authority: §17d(1) and MRPC 1.14, 1.2(d), 1.6(c)(3), 3.3(a) and (c).
MRPC 1.14(b) states:
“A lawyer may seek the appointment of a guardian or take other protective action with respect to a client only when the lawyer reasonably believes that the client cannot adequately act in the client’s own interest.” Id.
And, §17d(1) states:
“A lawyer-guardian ad litem's duty is to the child, and not the court.” id.
The Comments to Rule 1.14 recognize that a child client who may lack legal competence often has the ability to understand, deliberate upon, and reach conclusions about matters affecting his or her own well-being. Furthermore, the Comments to Rule 1.14 acknowledge the increasing extent to which the law recognizes “intermediate degrees of competence.” id. For instance, a child may possess sufficient physical or mental capacity or sense of obligation to testify truthfully and understandably. [i] As such, before adjudication in many child protective proceedings, children have already sworn an oath or reported a crime to a person or entity authorized to receive a crime report.
Nonetheless, having sworn an oath or reported a crime to a person or entity authorized to receive a crime report, a child who, e.g., communicates a desire to recant could thereby incriminate him or herself if called to testify.[ii] Thus, any compulsion or ultimatum placed upon the child in light of the child’s desire to recant would constitute “an extreme and detrimental choice, which could be used in future criminal proceedings [as well as subject the child to perjury charges].” See, e.g., In re Blakeman, 326 Mich App 318, 336 (2018).[iii]
Hence the question: Should an L-GAL take protective action in the form of, e.g., invoking the child’s Fifth Amendment privilege against self-incrimination where a child expresses a desire to recant after having sworn an oath or reported a crime?
MRPC 1.2(d) states:
"When a lawyer knows that a client expects assistance not permitted by the Rules of Professional Conduct or other law, the lawyer shall consult with the client regarding the relevant limitations on the lawyer's conduct."
MRPC 1.6 states:
"A lawyer may reveal . . . confidences and secrets to the extent reasonably necessary to rectify the consequences of a client's illegal or fraudulent act in the furtherance of which the lawyer's services have been used . . . ."
Additionally, the requirements of MRPC 1.6 must be reconciled with MRPC 3.3(a) and (c), which state:
"(a) A lawyer shall not knowingly:
"(1) make a false statement of material fact or law to a tribunal;
"(2) fail to disclose a material fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client;
"* * *
"(4) offer evidence that the lawyer knows to be false. If a lawyer has offered material evidence and comes to know of its falsity, the lawyer shall take reasonable remedial measures . . . .
"* * *
"(c) A lawyer may refuse to offer evidence that the lawyer reasonably believes is false."
Here, the dilemma is that under MRPC 1.6, a lawyer may not reveal the confidences and secrets of the client. In fact, Ethics Opinion RI-33 opines
“[A] lthough there is no duty to disclose or to rectify the consequences of the client's testimony, if the lawyer concludes the untruthful testimony amounted to fraud, the lawyer may reveal confidences and secrets to the extent reasonably necessary to rectify the consequences of the fraudulent act, in the furtherance of which the lawyer's services were used, even if the client objects.” id.
However, in order to reconcile the foregoing provisions such that a result that is in the child’s best interest may be reached, an L-GAL must temper the “intermediate degree of competence” that a child may possess [see the Comments to MRPC 1.14, supra] with the recognition that many children who are the subjects of child protective proceedings have experienced traumatic events like sexual or physical abuse; many have witnessed domestic or community violence; and, some have lived through natural disasters. These traumatic events often cause children to have strong, upsetting feelings that can potentially disturb a child’s daily life, development, ability to function, and critical thinking. [iv]
Congruently, §17d(1)(i) tells us that in making a determination regarding the child's best interests and advocating for those best interests, the L-GAL must make his or her best interest determinations according to the L-GAL's understanding of those best interests, regardless of whether the L-GAL's determination reflects the child's wishes. However, the L-GAL is simultaneously charged with weighing “the child's wishes according to the child's competence and maturity.” id. Here, the L-GAL’s duty to make best interest determinations according to the L-GAL's understanding of those best interests—regardless of whether the L-GAL's determination reflects the child's wishes—converts the “protective action” referenced in MRPC 1.14(b) into a positive duty. Support for the existence of this positive duty is found in the Comments to Rule 1.14, which supplement the lawyer’s duty to the client suffering a disability by instructing: “If the person has no guardian or legal representative, the lawyer often must act de facto as guardian.” id.
See also §4.0, infra, for a more careful discussion of the L-GAL’s role as de facto guardian.
Consequently, an L-GAL should take protective action, e.g., in the form of invoking the child’s Fifth Amendment privilege against self-incrimination where a child expresses a desire to recant after having sworn an oath or reported a crime.
[i] MRE 601 tells us that “[u]nless the court finds after questioning a person that the person does not have sufficient physical or mental capacity or sense of obligation to testify truthfully and understandably, every person is competent to be a witness except as otherwise provided in [the Michigan Rules of Evidence].” id. [ii] Note that any person who willfully swears falsely in regard to any matter or thing respecting which the oath is authorized or required is guilty of perjury, a felony punishable by imprisonment for not more than 15 years. MCL §750.423. Additionally, a person who intentionally makes a false report of the commission of a crime, or intentionally causes a false report of the commission of a crime to be made, to a peace officer, police agency, or a 9-1-1 operator is guilty of a crime. MCL §750.411a. [iii] In re Blakeman, 326 Mich App 318, 332-333 (2018), the Michigan Court of Appeals told us that even though a respondent had not been charged with a crime, the privilege against self-incrimination applied throughout the child protection proceeding because “an inculpatory statement by respondent could be used in the future by the . . . prosecutor” (citations omitted; alteration in original). The Blakeman Court recognized two interrelated requirements for a Fifth Amendment violation: • “compulsion, i.e., evidence that ‘a person is unable “to remain silent unless he chooses to speak in the unfettered exercise of his own will,”’ that is grounded on a penalty exacted for appellants’ refusal to testify.” • “there must be a penalty exacted on respondent for refusing to admit to the crime sufficient to compel self-incrimination.” In re Blakeman, 326 Mich App at 333-334, 336. [iv] See Miller, supra at Endnote vi, Appendix G: Applying the Realities of Child Development to Legal Representation: A Quick Reference for Lawyers and Judges.
• Christian Legal Society
• The Library of Congress’ website:
• Civil Pro Se Forms
• Federal Rules of Civil Procedure
• Public Access to Court Electronic Records (“PACER”) system
Disclaimer: The information contained in this article is offered for educational purposes only and is not intended to substitute for legal advice and is not customized to your particular needs. Before undertaking self-representation, we urge you to consult with an attorney licensed to practice in your state.