thus improving family court practice and protecting all parties involved, particularly children.
Can the Morgan litigation and its aftermath be used to inform practitioners from other
jurisdictions of ways to seek role clarity?
The question requires reflection on what was effective and what was ineffective in Kentucky. In
Morgan, the GAL was asked to serve as both an investigator/reporter and an advocate. The
mother objected to the appointment and specifically asked the Court to “reconcile the existing
patchwork of statutes and rules and to define the responsibilities of Guardians ad Litem (GALs)
in circuit court custody actions in order to protect her due process rights as well as the rights of
other litigants and to ensure the fundamental fairness of her child custody proceeding and other
child custody proceedings.”218 Many jurisdictions still allow for a combination of attorney and
investigator/reporter practice, 219 as was allowed in Kentucky prior to Morgan, which places the
attorney in an ethically compromised position.
What could the GAL in Morgan have done in order to protect his client and his ethical
obligations in the trial court? What would have happened if the GAL in Morgan had simply
asked for his appointment to be limited, or refused to perform the reporting tasks requested?
The ABA Standards direct children’s attorneys to “only accept appointment with a full
understanding of the issues and the functions to be performed. If the appointed lawyer considers
parts of the appointment order confusing or incompatible with his or her ethical duties, the
218 Brief of Law Professors Amy Halbrook, John Bickers, Jamie Abrams, and Anibal Lebron as Amicus Curiae,
Morgan v. Getter, 441 S.W.3d 94 (Ky. 2014) (No. 2013-CA-000655) 2013 Ky. App. Unpub. LEXIS 517, at 10 (Ct.
App. Feb. 22, 2013).
219 See, e.g., MONT. CODE ANN. § 40-4-205 (West 2015); In re Marriage of Hammill, 732 P.2d 403, 405 (Mont.
1987); Jacobsen v. Thomas, 100 P.3d 106, 107 (Mont. 2004).