Clark v. Alexander

In Clark v. Alexander, 953 P.2d 145 (Wyo. 1998), the Court squarely addressed the difficulties inherent in asking one person to act both as an agent of the court, identifying and pursuing the child's best interests, and as an attorney for the child, identifying and pursuing the child's preferences. Despite those difficulties, and because of the prohibitive cost of appointing both a GAL and an attorney for the child, we adopted a "hybrid" role for the attorney/GAL. Id. at 153. The effect of such hybrid status is to excuse the attorney/GAL from application of some of the Rules of Professional Conduct for Attorneys at Law. At the same time, however, the Court made clear in Clark that an attorney/GAL may not be a fact witness. Id. at 154. The Court held that attorneys serving as GALs may not serve as fact witnesses because of their ethical obligations under the Rules of Professional Conduct for Attorneys at Law. Instead, the Court ruled: Recommendations can be made to the court through closing argument based on the evidence received. It is, therefore, unnecessary to allow the attorney/guardian ad litem to place his or her own credibility at issue. Consequently, we join those jurisdictions which hold that an attorney/guardian ad litem may not be a fact witness at a custody hearing. This is not to say that the attorney/guardian ad litem may not submit a written report to the parties. A detailed report which timely informs the parties of the relevant facts and the basis of the guardian ad litem's recommendation may facilitate agreement prior to trial. If the parties so stipulate, the report may be presented to the court. However, the report should not be filed with the court or received into evidence without the express agreement of the parties. To the extent that prior Wyoming cases may conflict with this holding, they are here overruled. (Clark, 953 P.2d at 154.) In Clark, 953 P.2d at 151-52, the Court made the following statement: "In providing guidance to the role of an attorney appointed to represent a child while at the same time acting as guardian ad litem, we do not intend to usurp the role of the district court in appointing individuals to act solely as an attorney or as guardian ad litem. It is imperative, however, that the appointee request clarification from the appointing court if questions regarding the duties arise."