In these situations, the GAL must act in the role of a concerned parent, which is often in opposition to the position of defense counsel. See In re Lisa G., 127 N.H. 585, 504 A.2d 1, 5 (1986). Further, a GALโunlike a defense attorneyโowes a duty to the court and to society.
The respondent maintains that his conduct did not violate this rule. Specifically, he argues that the Gregori children were not his "clients" under our holdings in Ross v. Gadwah, 131 N.H. 391, 554 A.2d 1284 (1988), and In re Lisa G., 127 N.H. 585, 504 A.2d 1 (1986), and, therefore, it was "legally impossible" for him to violate Rule 1.7(b). We disagree.
See N.H. Rev. Stat. Ann. ยง 170-C:2 ; N.H. Rev. Stat. Ann. ยง 461-A:16.Seealso In re Lisa G., 127 N.H. 585, 504 A.2d 1, 5 (1986) (stating that "[a] guardian ad litem is appointed to advocate a juvenile's best interests in a particular proceeding, and has none of the rights of a general guardian. R. WIEBUSCH, 4 NEW HAMPSHIRE PRACTICE, CIVIL PRACTICE AND PROCEDURE ยง 756 (1984).").
Rather, if a juvenile is incompetent under the Dusky standard, the court has the inherent authority to appoint a guardian ad litem (GAL) to act as a substitute decision-maker for the juvenile and as a substitute client for the lawyer. See In re Lisa G., 127 N.H. 585, 589-90, 591, 504 A.2d 1 (1986). To the extent that the juvenile argues that the appointment of a GAL to act as a substitute decision-maker violates his constitutional rights to due process, he has failed to brief this argument sufficiently to warrant appellate review.
CHINS cases "begin with an adjudicatory hearing, in which the court determines whether the child is in need of services." In re Lisa G., 127 N.H. 585, 590, 504 A.2d 1 (1986). This stage of the proceeding may be referred to as the "adjudicatory phase."
The defense attorney, however, is the ultimate guardian of these constitutional rights, cf. In re Lisa G., 127 N.H. 585, 590, 504 A.2d 1, 4 (1986), who must defend the client against the immense resources of the State in its pursuit of a conviction. The process of criminal investigation and prosecution is designed to discover truth within constitutional parameters, protecting against the ultimate evil of convicting innocent persons and stripping them of their liberty.
We therefore look to our common law to determine the validity of the provisions of this lease. See In re Lisa G., 127 N.H. 585, 589, 504 A.2d 1, 3 (1986). We hold that in this State provisions in a contract which require waiver or modification of contract provisions to be in writing cannot completely restrict the parties' ability to orally alter the contract.
"It is equally obvious that when the child subject of the proceeding is very young, the function of the Law Guardian can differ little from that of [a] guardian ad litem" (Matter of Scott L. v Bruce N., 134 Misc.2d 240, 243). In the guardian ad litem role the Law Guardian acts as a "substitute client or concerned parent" (cf., In re Lisa G, 127 N.H. 585, 591, 504 A.2d 1, 5; In re Dobson, 125 Vt. 165, 168, 212 A.2d 620, 622; see, RLR v State, 487 P.2d 27, 35 [Alaska]). Indeed, an independent role for a Law Guardian was suggested by the Court of Appeals in Braiman v Braiman ( 44 N.Y.2d 584, 591) where the court suggested that a "close investigation and exploration of the truth" was required.
A New Hampshire court, for example, has found that guardians ad litem should be appointed in addition to appointed defense counsel in certain children in need of services (CHINS) cases. (In re Lisa G., ___ NJ ___, 504 A.2d 1.) The Juvenile Rights Division of the Legal Aid Society does take the position that the "best interests" of the child are properly left to the determination of the court, while the "interests" which the Law Guardian is charged by Family Court Act ยง 241 to protect "may be quite distinct from what the court ultimately adjudges to be in the child's best interest."