Communication between GAL & Opposing Counsel

[SMinNJ]

What is the name of your state? NJ

NCP dad is in a prolonged custody case. Dad is pro se. A GAL is assigned. The GAL just submitted an invoice to dad detailing 3 phone calls to opposing counsel and a subsequent physical conference with opposing counsel. There was no physical correspondence between the parties during this time, and dad has not been made aware of the topics of these conversations or the meeting. Dad has been instructed by the GAL and opposing counsel previously that any correspondence he has with the GAL must be copied to opposing counsel.

Question - Does dad have the right to request information as to what was discussed between opposing counsel and the GAL?

Thanks for your information and advice.

 

[LdiJ]

What is the name of your state? NJ

NCP dad is in a prolonged custody case. Dad is pro se. A GAL is assigned. The GAL just submitted an invoice to dad detailing 3 phone calls to opposing counsel and a subsequent physical conference with opposing counsel. There was no physical correspondence between the parties during this time, and dad has not been made aware of the topics of these conversations or the meeting. Dad has been instructed by the GAL and opposing counsel previously that any correspondence he has with the GAL must be copied to opposing counsel.

Question - Does dad have the right to request information as to what was discussed between opposing counsel and the GAL?

Thanks for your information and advice.

I honestly don't know. I hope that OG will be around soon to answer that question, since she is both a GAL and an attorney. I would guess yes, but I am not sure.

 

[CJane]

It's my understanding that a GAL has attorney-client privlege with ONLY the child/ren involved in the case. And therefore, CAN share info between the parties.

For instance, she could say "Your ex said that he observed you at the block party last week and you appeared to be drunk. Since you had your kids that weekend, could you please explain your actions?"

However, CAN and HAVE TO are completely different things.

 

[SMinNJ]

It's my understanding that a GAL has attorney-client privlege with ONLY the child/ren involved in the case. And therefore, CAN share info between the parties.

For instance, she could say "Your ex said that he observed you at the block party last week and you appeared to be drunk. Since you had your kids that weekend, could you please explain your actions?"

However, CAN and HAVE TO are completely different things.

I agree with your perception of where the privilege lies. The GAL's initial correspondence with mom and dad made it clear that neither of them have privilege with him.

Dad's concern is that the previous action by the GAL had been to request a hearing in front of the judge to decide some issues which the parties could not agree upon themselves. Two weeks later, this series of phone calls and meeting occurs. There was no further communication between parties until this past week, when dad provided info to each attorney and made some requests for information. There has been no hearing date set, and parties have been waiting almost two months for the court to do so. The GAL has also not responded to any of the issues raised by dad's request.

This GAL has never met dad. He has acted unilaterally on what he says the child has said she wants (she is 13), which happens to match what mom has been wanting for years, and is completely opposite of what the child has expressed to dad in the past. He refuses to provided detailed billing for most of the time he has been GAL, including an eight week period in which he was responsible for arranging supervised visits for dad, but did not do so and in fact was unreachable by at least dad, and apparently opposing counsel as well. He has only read dad's paperwork, while he has had at least one meeting with mom.

Dad might be paranoid, but on Father's Day, he celebrated a year of no parenting time with their daughter while the court slow-motions its way through the process. He has been concerned by the actions of the GAL throughout this, and secret phone calls and a secret meeting have not helped.

Mom's responses to his email also have concerned Dad to the point where he wonders whether it is not time to motion the court regarding his issues and to re-request the hearing date that the GAL asked for in April.

Thanks for your input.

 

[Ohiogal]

Dad needs to ask for a new GAL if the GAL has never met with dad.

 

[SMinNJ]

Dad needs to ask for a new GAL if the GAL has never met with dad.

This is true - dad has never met with the GAL. They have spoken on the phone only during conference calls with opposing counsel and the judge. The GAL had requested that dad forward to him copies of the court motions filed by each party in the matter, and Dad did. Dad has copied the GAL on letters to opposing counsel, has sent emails regarding court-ordered telephone calls and supervised visits, and has requested the GAL assist in mom providing information regarding their daughter. The GAL has never even asked to meet dad.

As to the original question, should dad request to be informed as to the substance of the phone calls and meeting?

Thanks for your help.

 

[seniorjudge]

...

Question - Does dad have the right to request information as to what was discussed between opposing counsel and the GAL?

...

Certainly he can request.

However, the GAL is prohibited from discussing it since there is an attorney-client privilege between the GAL (the attorney) and the client (the child or children). In fact, GALs (who are lawyers) have a much easier time making ex parte contacts.

(I base my answer on a cursory review of a couple of states' ethics opinions.)

 

[SMinNJ]

Certainly he can request.

However, the GAL is prohibited from discussing it since there is an attorney-client privilege between the GAL (the attorney) and the client (the child or children). In fact, GALs (who are lawyers) have a much easier time making ex parte contacts.

(I base my answer on a cursory review of a couple of states' ethics opinions.)

I understand that there is privilege between GAL and the child. The question is, should GAL inform dad (who is pro se) of conversations and meetings between he and mom's counsel. The only reason dad knows of this meeting and phone calls is because the GAL submitted a detailed invoice, which he has refused to do in the past (citing privilege to the child).

 

[seniorjudge]

Q: The question is, should GAL inform dad (who is pro se) of conversations and meetings between he and mom's counsel.

A: Again, no.

 

[SMinNJ]

Q: The question is, should GAL inform dad (who is pro se) of conversations and meetings between he and mom's counsel.

A: Again, no.

I'm sorry. I thought you were telling me that the GAL couldn't reveal what he and the child talked about because of privilege. You are saying that because the GAL would be talking about the child, it is still privileged?

That confuses me because he has made it clear that anything mom or dad say to him should not be considered privileged communication.

Thanks for your help.

 

[seniorjudge]

Q: You are saying that because the GAL would be talking about the child, it is still privileged?

A: You are correct.


Q: That confuses me because he has made it clear that anything mom or dad say to him should not be considered privileged communication.

A: That is also correct.



What is it that is confusing you?

 

[SMinNJ]

Q: You are saying that because the GAL would be talking about the child, it is still privileged?

A: You are correct.


Q: That confuses me because he has made it clear that anything mom or dad say to him should not be considered privileged communication.

A: That is also correct.



What is it that is confusing you?

Thanks for asking . If mom's communications with the GAL are not to be considered privilege, why then would these conversations in question be privileged? There would be nothing but the child for the GAL and the opposing counsel to be communicating about, since the whole reason the GAL exists is for the child.

When dad sends a letter to the GAL, he is instructed that he MUST copy it to mom's attorney, and the GAL forwards a copy to her if dad has not done so. Dad presumed this meant that any time he wants to say something to the GAL, mom's counsel, and thus mom, must be informed.

Why is this any different? Therein lies my confusion.

 

[seniorjudge]

Q: If mom's communications with the GAL are not to be considered privilege, why then would these conversations in question be privileged?

A: The GAL represents the child; the GAL does not represent anyone else.


There would be nothing but the child for the GAL and the opposing counsel to be communicating about, since the whole reason the GAL exists is for the child.


Okay.


When dad sends a letter to the GAL, he is instructed that he MUST copy it to mom's attorney, and the GAL forwards a copy to her if dad has not done so. Dad presumed this meant that any time he wants to say something to the GAL, mom's counsel, and thus mom, must be informed.

Not necessarily; a GAL may have ex parte conversations that he starts himself and he does not have to tell anyone about it. If, however, one of the parties (that is to say, one of the PARTIES) makes contact with one of the other parties or the attorney for that party, then all parties must be notified.


Q: Why is this any different? Therein lies my confusion.

A: Face it, GALs have a lot of power. I have even had consultations with GALs in chambers when no one else knew about it (and still don't).

 

[SMinNJ]

Q: If mom's communications with the GAL are not to be considered privilege, why then would these conversations in question be privileged?

A: The GAL represents the child; the GAL does not represent anyone else.


There would be nothing but the child for the GAL and the opposing counsel to be communicating about, since the whole reason the GAL exists is for the child.

Okay.


When dad sends a letter to the GAL, he is instructed that he MUST copy it to mom's attorney, and the GAL forwards a copy to her if dad has not done so. Dad presumed this meant that any time he wants to say something to the GAL, mom's counsel, and thus mom, must be informed.

Not necessarily; a GAL may have ex parte conversations that he starts himself and he does not have to tell anyone about it. If, however, one of the parties (that is to say, one of the PARTIES) makes contact with one of the other parties or the attorney for that party, then all parties must be notified.

Ok. I understand. On that note, Dad knows from a previous detailed invoice (there have been two - one in November and the one received today) that Mom sent an email directly to the GAL. Dad has been instructed, as I said, that all his communications to the GAL must be copied to mom's counsel. Dad requested, likewise, that opposing counsel forward to him all correspondence she has made to the GAL (she has forwarded nothing to dad over the history of this case), including the email referenced in the billing statement. Mom's counsel ignored this request. Should dad have been provided that email, since the detailed bill showed no indication that the GAL initiated the contact?


Q: Why is this any different? Therein lies my confusion.

A: Face it, GALs have a lot of power. I have even had consultations with GALs in chambers when no one else knew about it (and still don't).

Just my opinion, and I don't count, but that would be fine with me, since neither party is privy... I mistakenly thought that if one parent had information, then the other should as well.

What is your opinion about the fact that the GAL has never met dad. If a motion requesting that the GAL be removed came in front of you for that reason, what would be your thoughts?


Dad is not trying to control things here - he is just trying to get a handle on what is happening. Between the invoice in November and the current one which covers the month of May, there were no bills received, yet the total due has crept up. Dad has asked the GAL for bills from this time period, with no response. Because of the balance increase, he knows the GAL has been doing something - he just hasn't communicated it to dad.

Since mom is the custodial and the child is with her, there is a likely chance that mom knows whether there have been conversations with the child, or meetings. I'm talking about $2000 worth of charges since the end of November, which means that this guy has done 8 hours worth of work on the case with no explanation.

 

[seniorjudge]

Just my opinion, and I don't count, but that would be fine with me, since neither party is privy... I mistakenly thought that if one parent had information, then the other should as well.

What is your opinion about the fact that the GAL has never met dad. If a motion requesting that the GAL be removed came in front of you for that reason, what would be your thoughts?


Dad is not trying to control things here - he is just trying to get a handle on what is happening. Between the invoice in November and the current one which covers the month of May, there were no bills received, yet the total due has crept up. Dad has asked the GAL for bills from this time period, with no response. Because of the balance increase, he knows the GAL has been doing something - he just hasn't communicated it to dad.

Since mom is the custodial and the child is with her, there is a likely chance that mom knows whether there have been conversations with the child, or meetings. I'm talking about $2000 worth of charges since the end of November, which means that this guy has done 8 hours worth of work on the case with no explanation.

GENERALLY, the GAL can make all kinds of ex parte communications.


Q: What is your opinion about the fact that the GAL has never met dad. If a motion requesting that the GAL be removed came in front of you for that reason, what would be your thoughts?

A: If I got such a motion, I would call the GAL to ask him his side. If he didn't have good answers, I would set the request for a hearing as soon as possible.