IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

November 14, 2017 Session

BENJAMIN RUNYON v. LISA ZACHARIAS

Appeal from the Circuit Court for Shelby County

No. CT-005120-15 Robert L. Childers, Judge

No. W2016-02141-COA-R3-CV

This is an action against an attorney who previously served as a Tenn. Sup. Ct. R. 40A 

court appointed guardian ad litem for the benefit of the plaintiff and his two younger 

siblings in their parents’ divorce. Plaintiff alleges that he had an attorney-client 

relationship with the guardian ad litem, and the guardian ad litem violated the attorneyclient relationship by disclosing confidential information to the divorce court after he was 

18 years old. The guardian ad litem denies any liability or actionable conduct, insisting 

that all of her actions were pursuant to Tenn. Sup. Ct. R. 40A and the Order Appointing 

Guardian Ad Litem in the divorce action. The trial court dismissed the complaint 

pursuant to Tenn. R. Civ. P. 12.02(6) upon a finding that the complaint failed to state a 

claim because the guardian ad litem’s duties in the divorce action did not terminate when 

the oldest child turned 18 due to the fact that the custody proceeding concerning his two 

younger siblings was still ongoing, and the order of appointment authorized the guardian 

ad litem to disclose to the court confidential information that may affect the best interests 

of the children. Finding no error, we affirm. 

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

FRANK G. CLEMENT JR., P.J., M.S., delivered the opinion of the Court, in which J.

STEVEN STAFFORD, P.J., W.S. AND KENNY W. ARMSTRONG, J., joined.

Dorothy J. Pounders and Timothy M. Ginski, Memphis, Tennessee, for the appellant,

Benjamin Runyon.

Robert V. Redding and Sadia S. Staton, Jackson, Tennessee, for the appellee, Lisa 

Zacharias.

01/23/2018
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OPINION

On January 6, 2012, attorney Lisa Zacharias (“Defendant”) was appointed as

guardian ad litem of three minor children, including the oldest, Benjamin Runyon 

(“Plaintiff”), to represent the best interests of the children in their parents’ divorce action. 

Plaintiff was still a minor when the divorce trial began on November 16, 2012; however, 

he turned 18 on November 27, 2012, and the trial did not conclude until January 17, 

2013.1

Three years later, Plaintiff commenced this civil action against Defendant

claiming breach of confidentiality in her roles as his guardian ad litem and as his 

attorney. He contends that Defendant presented evidence to the court during his parents’

divorce action that was confidential information and the disclosure of which violated the 

attorney-client relationship because they were disclosed to the court after he turned 18 

years of age. These claims rest on the factual allegations in paragraph 11 of the complaint 

which reads:

11. The trial of the foregoing divorce proceeding was held in December 

2012. At the trial, confidential psychological records of [Plaintiff] (herein 

“confidential information”) had been intentionally and wrongfully 

disclosed by [Defendant] to the Court in Division VII without the 

knowledge, authority or consent of [Plaintiff].

Plaintiff contends Defendant’s actions caused him “embarrassment, humiliation, 

emotional pain and mental anguish, as well as harm to his relationship with others.”

Defendant filed a Tenn. R. Civ. P. 12.02(6) Motion to Dismiss based upon quasijudicial immunity. When the trial court denied the motion, Defendant filed a Motion to 

Stay Discovery and a Motion for Protective Order while she pursued an interlocutory 

appeal. During the hearing on the motions, the trial court sua sponte reversed its prior 

ruling and dismissed the case. In dismissing Plaintiff’s complaint, the trial court relied on 

Tenn. Sup. Ct. R. 40A concluding that a Rule 40A guardian ad litem represents the “best 

interests” of the children in a custody case, as distinguished from representing a child or 

the children in the context of an attorney-client relationship. Furthermore, the court relied 

on the Rule 40A order of appointment which authorized Defendant to collect 

“confidential information regarding the children, including: the children’s educational, 

medical, and mental health records,” and granted Defendant authority to release this 

confidential information “as it may be necessary for, or greatly aid, the resolution of the 

 

1

Circuit Court Judge Donna M. Fields presided over the divorce action, the trial of which was 

held over fifteen non-consecutive days in November and December of 2012 and January of 2013.
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issues.” Therefore, the trial court found that Defendant was specifically authorized to 

release this information to the court. In conclusion, the court stated the following:

I find that the complaint fails to state a cause of action upon which relief 

can be granted because, as a matter of law, the plaintiff has only alleged 

that . . . confidential information of the plaintiff was disclosed to the court 

in Division VII, which is clearly protected under Supreme Court Rule 40A 

and the order of January 6, 2012, from Judge Fields. 

This appeal followed.

ISSUES

Plaintiff and Defendant both raise issues on appeal. For her part, Defendant 

contends the trial court erred in failing to dismiss the complaint based on quasi-judicial 

immunity of a guardian ad litem while acting pursuant to and within the scope of her 

appointment in the divorce action.

For his part, Plaintiff contends:

1. The trial court erred in holding that the guardian ad litem continues to function as 

such upon the child reaching the age of 18. 

2. The trial court erred in holding that no attorney-client relationship exists between a 

guardian ad litem and the minor children under an appointment pursuant to Tenn. 

Sup. Ct. R. 40A.

3. The trial court erred in holding that the Defendant’s disclosure of the child’s 

confidential information to the court was proper.

STANDARD OF REVIEW

A Tenn. R. Civ. P. 12.02(6) motion to dismiss challenges only the legal 

sufficiency of the complaint, not the strength of the plaintiff’s proof or evidence. Webb v. 

Nashville Area Habitat for Humanity, Inc., 346 S.W.3d 422, 426 (Tenn. 2011). The 

resolution of a Rule 12.02(6) motion to dismiss is determined by an examination of the 

pleadings alone. Id. A defendant who files a motion to dismiss “admits the truth of all of 

the relevant and material allegations contained in the complaint, but . . . asserts that the 

allegations fail to establish a cause of action.” Id. (quoting Brown v. Tenn. Title Loans, 

Inc., 328 S.W.3d 850, 854 (Tenn. 2010)).

Tennessee Rule of Civil Procedure 8.01 merely requires a plaintiff to state “the 

facts upon which a claim for relief is founded.” Id. at 427 (citing Smith v. Lincoln Brass 
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Works, Inc., 712 S.W.2d 470, 471 (Tenn. 1986)). Complaints “need not contain detailed 

allegations of all the facts giving rise to the claim,” but they “must contain sufficient 

factual allegations to articulate a claim for relief.” Id. (quoting Abshure v. Methodist 

Healthcare-Memphis Hospitals, 325 S.W.3d 98, 103-04 (Tenn. 2010)). “The facts 

pleaded, and the inferences reasonably drawn from these facts, must raise the pleader’s 

right to relief beyond the speculative level.” Id. However, courts are not required to 

accept as true assertions that are merely legal arguments or “legal conclusions” couched 

as facts. Id. (quoting Riggs v. Burson, 941 S.W.2d 44, 47-48 (Tenn. 1997)).

When considering a motion to dismiss, courts “must construe the complaint 

liberally, presuming all factual allegations to be true and giving the plaintiff the benefit of 

all reasonable inferences.” Id. at 426 (quoting Tigg v. Pirelli Tire Corp., 232 S.W.3d 28, 

31-32 (Tenn. 2007)). A trial court should grant a motion to dismiss “only when it appears 

that the plaintiff can prove no set of facts in support of the claim that would entitle the 

plaintiff to relief.” Id. (quoting Crews v. Buckman Labs. Int’l, Inc., 78 S.W.3d 852, 857 

(Tenn. 2002)). We review the trial court’s legal conclusions regarding the adequacy of 

the complaint de novo. Id.; Brown, 328 S.W.3d at 855.

ANALYSIS

I. TENNESSEE SUPREME COURT RULE 40A

In order to analyze the issues presented in this appeal, it is necessary to appreciate 

the scope and purpose of Tenn. Sup. Ct. R. 40A, which went into effect in 2009. Simply 

stated, Rule 40A authorizes the trial court presiding over a custody proceeding to appoint 

an attorney as a guardian ad litem “when the court finds that the child[ren]’s best interests 

are not adequately protected by the parties and that separate representation of the 

child[ren]’s best interests is necessary.” Tenn. Sup. Ct. R. 40A § 3(a). The rule also 

defines “Guardian Ad Litem” to mean “a licensed attorney appointed by the court to 

represent the best interests of a child or children in a custody proceeding.” Tenn. Sup. Ct. 

R. 40A § 1(c). Thus, a Rule 40A guardian ad litem must be a licensed attorney.

It is also necessary to recognize that Rule 40A differs from prior rules and 

practices involving guardians ad litem in custody proceedings in that a Rule 40A 

guardian ad litem “functions as a lawyer, not as a witness or special master.” See Tenn. 

Sup. Ct. R. 40A § 9, adv. comm. cmt. As the comments of the Advisory Commission 

reveal, unlike prior practice and procedure:

(1) A [Rule 40A] guardian ad litem may not be a witness or testify in any 

proceeding in which he or she serves as guardian ad litem, except in those 

extraordinary circumstances specified by Supreme Court Rule 8, Rule of 

Professional Conduct 3.7.
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(2) A [Rule 40A] guardian ad litem is not a special master, and should not 

submit a “report and recommendations” to the court but may file a pre-trial 

brief/memorandum as any attorney in any other case. The guardian ad litem 

may advocate the position that serves the best interest of the child by 

performing the functions of an attorney, including but not limited to those 

enumerated in Supreme Court Rule 40(d)(7).

(3) The [Rule 40A] guardian ad litem must present the results of his or her 

investigation and the conclusion regarding the child’s best interest in the 

same manner as any other lawyer presents his or her case on behalf of a 

client: by calling, examining and cross examining witnesses, submitting 

and responding to other evidence in conformance with the rules of 

evidence, and making oral and written arguments based on the evidence 

that has been or is expected to be presented.

Tenn. Sup. Ct. R. 40A § 9, adv. comm. cmt.

2

Supreme Court Rule 40A directs that the appointment of a guardian ad litem “shall 

be by written order of the court” that shall set forth “the reasons for the appointment,”

and “the specific duties to be performed by the guardian ad litem.” Tenn. Sup. Ct. R. 40A

§ 4(a) – (b). Additionally, “[t]he court shall provide in the appointment order as much 

detail and clarity as possible concerning the guardian ad litem’s duties.” Tenn. Sup. Ct. 

R. 40A § 4(c).

Other pertinent sections in Rule 40A provide that the role of the guardian ad litem 

is “to represent the child’s best interests by gathering facts and presenting facts for the 

court’s consideration subject to the Tennessee Rules of Evidence.” Tenn. Sup. Ct. R. 40A

§ 6 (emphasis added). Section 8 of Rule 40A states that a guardian ad litem shall satisfy 

his or her duties “in an unbiased, objective, and fair manner.” Tenn. Sup. Ct. R. 40A § 

8(a). It further instructs that:

(b) A guardian ad litem shall:

(1) conduct an investigation to the extent that the guardian ad litem 

considers necessary to determine the best interests of the child, 

which can include, but is not limited, to ascertaining:

 

2

It is important to distinguish the role of a Rule 40A guardian ad litem from that of a guardian ad 

litem in a guardianship or conservatorship proceeding. Pursuant to Tenn. Code Ann. § 34-1-107(d)(1), 

“[t]he guardian ad litem [in a guardianship or conservatorship proceeding] owes a duty to the court to 

impartially investigate the facts and make a report and recommendations to the court. The guardian ad 

litem serves as an agent of the court, and is not an advocate for the respondent or any other party.” 
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(i) the child’s emotional needs, such as nurturance, trust, 

affection, security, achievement, and encouragement;

(ii) the child’s social needs;

(iii) the child’s educational needs;

(iv) the child’s vulnerability and dependence upon others;

(v) the child’s need for stability of placement;

(vi) the child’s age and developmental level, including his or her 

sense of time;

(vii) the general preference of a child to live with known people, 

to continue normal activities, and to avoid moving;

(viii) the love, affection and emotional ties existing between the 

child and the parents;

(ix) the importance of continuity in the child’s life;

(x) the home, school and community record of the child;

(xi) the willingness and ability of the proposed or potential 

caretakers to facilitate and encourage close and continuing 

relationships between the child and other persons in the child’s 

life with whom the child has or desires to have a positive 

relationship, including siblings; and

(xii) the list of factors set forth in Tenn. Code Ann. § 36-6-106.

(2) obtain and review copies of the child’s relevant medical, 

psychological, and school records as provided by Section 7.

(3) within a reasonable time after the appointment, interview:

(i) the child in a developmentally appropriate manner, if the child 

is four years of age or older;

(ii) each person who has significant knowledge of the child’s 

history and condition, including any foster parent of the child; 

and

(iii) the parties to the suit;

(4) if the child is twelve (12) years of age or older, seek to elicit in a 

developmentally appropriate manner the reasonable preference of 

the child;

(5) consider the child’s expressed objectives without being bound by 

those objectives;

(6) encourage settlement of the issues related to the child and the use 

of alternative forms of dispute resolution; and
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(7) perform any specific task directed by the court.

(c) If the child asks the guardian ad litem to advocate a position that the 

guardian ad litem believes is not in the child′s best interest, the guardian ad 

litem shall:

(1) fully investigate all of the circumstances relevant to the child’s 

position, identify every reasonable argument that could be made in 

favor of the child’s position, and identify all the factual support for 

the child’s position;

(2) discuss fully with the child and make sure that the child 

understands the different options or positions that might be 

available, including the potential benefits of each option or position, 

the potential risks of each option or position, and the likelihood of 

prevailing on each option or position.

(3) if, after fully investigating and advising the child, the child 

continues to urge the guardian ad litem to take a position that the 

guardian ad litem believes is contrary to the child’s best interest, the 

guardian shall take all reasonable steps to:

(i) subpoena any witnesses and ensure the production of 

documents and other evidence that might tend to support the 

child’s position; and

(ii) advise the court at the hearing of the wishes of the child and 

of the witnesses subpoenaed and other evidence available for the 

court to consider in support of the child’s position.

Tenn. Sup. Ct. R. 40A § 8.

Section 9 of Rule 40A states that “[a] guardian ad litem appointed in a custody 

proceeding is entitled to all rights and privileges accorded to an attorney representing a 

party, including but not limited to the right to . . . take any action that may be taken by an 

attorney representing a party pursuant to the Rules of Civil Procedure.”

With the foregoing in mind, we shall now address the issues raised by the parties.

II. QUASI-JUDICIAL IMMUNITY

Defendant argues that she is entitled to quasi-judicial immunity; therefore, the trial 

court erred in initially denying her motion to dismiss. She relies on Tenn. Code Ann. § 

36-4-132(c), mainly the statute’s legislative history, for the proposition that guardians ad 
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litem have absolute immunity from suit. Plaintiff argues that the plain language of the 

statute does not provide quasi-judicial immunity. We agree with Plaintiff.

The legal question presented requires us to interpret the statute. “Statutory 

interpretation, of course, presents a question of law and our review is de novo with no 

presumption of correctness.” Beard v. Branson, 528 S.W.3d 487, 495 (Tenn. 2017).

When we review a statute, we are to apply the plain and ordinary language of the 

statute absent an ambiguity. Lipscomb v. Doe, 32 S.W.3d 840, 844 (Tenn. 2000); see also 

Biscan v. Brown, 160 S.W.3d 462, 473 (Tenn. 2009). “When the words of a statute are 

plain and unambiguous, the assumption is ‘that the legislature intended what it wrote and 

meant what it said.’” McClain v. Henry I. Siegel Co., 834 S.W.2d 295, 296 (Tenn. 1992) 

(quoting Federal Exp. Corp. v. Woods, 569 S.W.2d 408, 410 (Tenn. 1978)). “The 

pertinent language must be [applied] ‘without any forced or subtle construction extending 

its import.’” Worley v. Weigels, Inc., 919 S.W.2d 589, 593 (Tenn. 1996) (quoting Federal 

Exp. Corp, 569 S.W.2d at 410). A court may only consider evidence outside of the statute 

“when the plain language of the statute does not directly address the issue or leads to an 

absurd result. . . .” Lipscomb, 32 S.W.3d at 844.

Tenn. Code Ann. § 36-4-132(c) reads:

Any guardian ad litem appointed by the court pursuant to this section shall 

be presumed to be acting in good faith and in so doing shall be immune 

from any liability that might otherwise be incurred while acting within the 

scope of such appointment. Such immunity shall apply in all proceedings in 

which such guardian ad litem may act.

(emphasis added). 

We find no ambiguity within Tenn. Code Ann. § 36-4-132(c). The statute confers 

immunity when a guardian ad litem, in good faith, acts within the scope of his or her 

appointment. While the guardian ad litem is presumed to act in good faith, this 

presumption may be rebutted. Thus, if and to the extent Tenn. Code Ann. § 36-4-132(c) 

may apply, there is merely a presumption that the guardian ad litem acted in good faith.

Construing the complaint liberally and giving Plaintiff the benefit of all reasonable 

inferences, as we are required to do when ruling on a Rule 12.02 motion to dismiss, and 

recognizing that Tenn. Code Ann. § 36-4-132(c) does not provide absolute immunity to

court-appointed guardians ad litem, we affirm the trial court’s decision to deny 

Defendant’s Motion to Dismiss based on quasi-judicial immunity.

We have also determined that Defendant is not entitled to quasi-judicial immunity 

under Tenn. Sup. Ct. R. 40A because she was not functioning as a special master for the 
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court and she was not performing any other judicial or quasi-judicial responsibilities. 

This is evident from the literal reading of Rule 40A which states, in pertinent part, that 

“[t]he guardian ad litem shall not function as a special master for the court or perform any 

other judicial or quasi-judicial responsibilities.” Tenn. Sup. Ct. R. 40A § 6(b). 

To be entitled to quasi-judicial immunity, the actions of the person seeking 

immunity must be closely related to the justifying purposes behind the particular 

immunity doctrine being invoked. Bryant-Bruce v. State, No. M2002-03059-COA-R3-

CV, 2005 WL 2384696, at *6 (Tenn. Ct. App. Sept. 27, 2005) (citing Nixon v. Fitzgerald, 

457 U.S. 731, 755 (1982)). Although quasi-judicial immunity, which is a form of 

immunity similar to absolute judicial immunity, has been extended to persons other than 

judges over the years to persons whose functions are an integral part of or intimately 

related to the judicial process, “the party claiming absolute immunity bears the burden of 

establishing the justification for the claim.” Id. at *6-7 (citing Antoine v. Byers & 

Anderson, Inc., 508 U.S. 429, 432 (1993); Burns v. Reed, 500 U.S. 478, 486 (1991)). 

Here, Defendant has failed to establish a factual or legal justification for her claim of 

quasi-judicial immunity under the statute or Rule 40A; therefore, she is not entitled to 

quasi-judicial immunity. 

III. WHEN DOES THE ROLE OF A GUARDIAN AD LITEM CEASE?

Plaintiff argues that upon his reaching the age of 18, Defendant ceased to function 

as his guardian ad litem. This contention is premised on the notions that the guardian ad 

litem relationship only applies to minors and that the custody proceeding as it pertained

to him became moot when he turned 18. 

Notwithstanding the fact that Plaintiff turned 18 during the trial in the custody 

proceeding, Defendant contends the guardian ad litem appointment was not terminated 

because the custody proceedings continued after Plaintiff turned 18, and no order was 

entered terminating her appointment. Defendant also relies on the trial court’s reasoning 

that “just because Plaintiff turned 18 the Court did not lose power or authority to 

adjudicate the custodial, parenting, support and visitation rights of the remaining minors. 

[The Court] recognized that the considerations involved the presence or absence of the 

Plaintiff, as well as did the support issues if he was owed no support.” We agree.

Although Rule 40A does not expressly state what happens if a child in the custody 

proceeding reaches the age of majority before the case is concluded, it is implicit from 

review of the rule that the guardian ad litem’s role continues until an order terminating 

the appointment of the guardian ad litem is entered or “when the trial court order or 

judgment disposing of the custody or modification proceeding becomes final.” Tenn. 

Sup. Ct. R. 40A § 5. Additionally, Section 4 of Rule 40A states that the order appointing 

the guardian ad litem shall specifically set forth “the duration of the appointment.” Tenn. 

Sup. Ct. R. 40A § 4(b)(4). Here, the order appointing Defendant stated that the guardian’s 
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appointment “shall terminate: automatically when the Court’s order or judgment, 

disposing of the issues which brought about this appointment, becomes final. . . .”

(emphasis in original). Therefore, the appointment of Defendant as the guardian ad litem 

for all three children remained in effect, even after Plaintiff turned 18 years old, since no 

“order or judgment” disposing of the issues had become final. 

The foregoing notwithstanding, Plaintiff argues in his brief that “Rule 40A states 

that the Guardian Ad Litem may only act on behalf of the child within a custody 

proceeding in which ‘legal or physical custody of, access to, or visitation or parenting 

time with a child is at issue, including but not limited to divorce, post divorce, paternity, 

domestic violence, and contested adoptions.’ Tenn. R. Sup. Ct. 40A, § 1.” The deficiency 

with this argument is that it ignores the plain language of Rule 40A and the written order 

of appointment. It also fails to recognize the fact that all issues pertaining to the support, 

education, or welfare of a child who turns 18 during custody proceedings are not 

automatically moot. 

For example, if the child has special needs, the parents may have a duty to 

continue to support the child. See Tenn. Code Ann. § 36-5-101(k). Additionally, if the 

child has not graduated from high school, the parents’ responsibilities concerning the 

support, education, or welfare of the now 18-year-old continue until he graduates. See

Tenn. Code Ann. § 34-1-102(b) (“Parents shall continue to be responsible for the support 

of each child for whom they are responsible after the child reaches eighteen (18) years of 

age if the child is in high school. The duty of support shall continue until the child 

graduates from high school or the class of which the child is a member when the child 

attains eighteen (18) years of age [or] graduates, whichever occurs first.”) Accordingly, 

the mere fact that a child in a custody proceeding turns 18 does not automatically render 

issues concerning the custody, care, and support of that child moot. Moreover, the mere 

fact that the oldest of three minor children, for whom the guardian ad litem was 

appointed, has turned 18 would not terminate the guardian ad litem’s appointment or 

duties. Thus, the appointment of the guardian ad litem does not terminate as to one or all 

of the children until the trial court enters an order to that affect, or the court enters an

order or judgment that disposes of the custody or modification proceeding. See Tenn. 

Sup. Ct. R. 40A § 5.

For the foregoing reasons, we affirm the trial court’s ruling on this issue.

IV. THE PROFESSIONAL RELATIONSHIP BETWEEN A GUARDIAN AD LITEM AND CHILD

PURSUANT TO A TENN. SUP. CT. R. 40A APPOINTMENT

Plaintiff contends the trial court erred in finding that Defendant did not have an

attorney-client relationship with him. Plaintiff asserts that the enactment of Tenn. Sup. 
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Ct. R. 40A removes the guardian ad litem’s impartial, quasi-judicial function and requires 

that the guardian ad litem function as an advocate and attorney for the minor child.3

Therefore, Defendant served as his legal advocate, which gives rise to the attorney-client 

relationship. 

For her part, Defendant argues that the parameters of her professional relationship 

with Plaintiff and his younger siblings were established and controlled by the terms of the 

Order Appointing Guardian Ad Litem in the custody proceedings and by Tenn. Sup. Ct. 

R. 40A. Relying on the order and Rule 40A, Defendant contends she was not appointed 

to serve as Plaintiff’s attorney, but to serve as a Rule 40A guardian ad litem whose duties 

were to represent “the best interests” of Plaintiff and his younger siblings in the manner 

and to the extent the order and Rule 40A mandated. Stated another way, Defendant 

contends neither she nor Plaintiff had the authority to rewrite the Order Appointing 

Guardian Ad Litem or Rule 40A in order to create a consensual attorney-client 

relationship. 

In ruling on Defendant’s motion to dismiss, the trial court found that Rule 40A 

requires the guardian ad litem to represent the child’s best interest and not the child. 

Specifically, in its oral ruling the court stated, “I think the Supreme Court chose these 

words with care, ‘represent the best interest of a child or children in a custody 

proceeding.’ Not represent the child or children, but the best interests.” We agree.

As stated above, when we review a statute, we are to apply the plain and ordinary 

language of the statute absent an ambiguity. Lipscomb, 32 S.W.3d at 844. In interpreting 

the Rules of the Tennessee Supreme Court, “our goal is to ascertain and give effect to 

th[e] Court’s intent in adopting its rules.” Thomas v. Oldfield, 279 S.W.3d 259, 261 

(Tenn. 2009). 

It is undisputed that Defendant and Plaintiff never entered into a consensual 

attorney-client relationship. It is also undisputed that Defendant’s role during the custody 

proceedings in the divorce action commenced with the entry of the Order Appointing 

Guardian Ad Litem. It is also undisputed that the appointment was made pursuant to Rule 

40A. 

 

3

Plaintiff also contends that Tenn. Sup. Ct. R. 40 has a bearing on the issues in this case. We,

however, have determined that Rule 40 does not apply to the issues in this case because Rule 40 only 

applies to “neglect, abuse and dependency proceedings” in juvenile court. See Tenn. Sup. Ct. R. 40(a). 

The parents’ divorce action was not a “neglect, abuse and dependency proceeding[]” in juvenile court; 

therefore, Rule 40 is not applicable. Rule 40A, however, applies in custody proceedings, other than an 

abuse or neglect proceeding in juvenile court, “in which legal or physical custody of, access to, or

visitation or parenting time with a child is at issue, including but not limited to divorce, post divorce, 

paternity, domestic violence, and contested adoptions.” Tenn. Sup. Ct. R. 40A § 1(a).
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As Plaintiff correctly states, Rule 40A differs from the prior rule in that the 

guardian ad litem now functions as a lawyer, not as a witness or special master. This 

change in the role of Rule 40A guardians ad litem has been recognized by the Tennessee 

Board of Professional Responsibility, which stated in Formal Ethics Opinion 2013-F-157 

(Dec. 6, 2013):

Like [Rule] 40, [Rule] 40A provides that the [guardian ad litem] is an 

attorney appointed to represent the best interest of the child, but does not 

specifically provide that the child is the client of the [guardian ad litem]. 

Even so, Commentary to [Rule] 40A § 9 provides, in part, that the “current 

rule 40A differs from the prior rule in that the Guardian Ad Litem now 

functions as a lawyer, not as a witness or special master. The Guardian Ad 

Litem does not prepare a report for the parties or the court, nor does the 

Guardian Ad Litem make a recommendation to the parties or the court 

concerning custody. . . .” The rule further provides that the [guardian ad 

litem] does not perform any other judicial or quasi judicial responsibility 

and must satisfy their duties and responsibilities in an impartial, unbiased, 

objective and fair manner.

(citations omitted).4

Although a Rule 40A guardian ad litem does not prepare a report for the parties or 

the court, nor does the guardian ad litem make a recommendation concerning custody,

this new role does not create an attorney-client relationship with the children in a custody 

proceeding. This is evident from the literal wording of Rule 40A and the order of 

appointment. 

Rule 40A mandates that the guardian ad litem is appointed to represent “the best 

interests of the child,” Tenn. Sup. Ct. R. 40A § 3(d), and to satisfy his or her duties “in an 

unbiased, objective, and fair manner.” Tenn. Sup. Ct. R. 40A § 8(a). Rule 40A further 

mandates that the trial court enter a written order that states “the reasons for the 

appointment,” “the specific duties to be performed by the guardian ad litem,” and “as 

much detail and clarity as possible concerning the guardian ad litem’s duties.” Tenn. Sup. 

Ct. R. 40A § 4(a) – (c). Moreover, and significantly, not only does the trial court specify 

the duties of the guardian ad litem, the trial court is to also “exercise effective oversight 

of the guardian ad litem’s role,” Tenn. Sup. Ct. R. 40A § 4(c), which are concepts and 

restraints that are foreign to the typical attorney-client relationship.

 

4

Although the Board of Professional Responsibility’s opinions are persuasive, the ethics opinions 

do not have the force of law. State v. Jones, 726 S.W.2d 515, 519 (Tenn. 1987).
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Unless the order of appointment states otherwise, Rule 40A requires that the 

guardian ad litem conduct an investigation to determine “the best interests of the child,”

including the child’s emotional needs and “the child’s vulnerability and dependence upon 

others.” Tenn. Sup. Ct. R. 40A § 8(b)(i)-(iv). The rule also requires that the guardian ad 

litem “present[] facts for the court’s consideration.” Tenn. Sup. Ct. R. 40A § 6. If the 

intent of the rule was to create an attorney-client relationship, there would be no need for 

these mandates because the guardian ad litem would simply function as any attorney 

would in the representation of any client. Moreover, these mandates are inconsistent with 

the typical attorney-client relationship. For these reasons, it is apparent from considering 

Rule 40A in its entirety that the Supreme Court did not intend for a Rule 40A guardian ad 

litem to have a typical attorney-client relationship with the child or children whose “best 

interests” he or she is appointed to represent.

We also acknowledge, as Plaintiff asserts, that if a child over the age of 12 asks 

the guardian ad litem to advocate a position that the guardian ad litem believes is not in 

the child’s best interest, the guardian ad litem is required to take the following action: 

(1) fully investigate all of the circumstances relevant to the child’s position, 

identify every reasonable argument that could be made in favor of the 

child’s position, and identify all the factual support for the child’s position;

(2) discuss fully with the child and make sure that the child understands the 

different options or positions that might be available, including the 

potential benefits of each option or position, the potential risks of each 

option or position, and the likelihood of prevailing on each option or 

position.

(3) if, after fully investigating and advising the child, the child continues to 

urge the guardian ad litem to take a position that the guardian ad litem 

believes is contrary to the child’s best interest, the guardian shall take all 

reasonable steps to:

(i) subpoena any witnesses and ensure the production of documents 

and other evidence that might tend to support the child’s position; 

and

(ii) advise the court at the hearing of the wishes of the child and of 

the witnesses subpoenaed and other evidence available for the court 

to consider in support of the child’s position.

Tenn. Sup. Ct. R. 40A § 8(c).

Plaintiff argues that the foregoing responsibilities indicate that the Supreme Court 

intended for the Rule 40A guardian ad litem to serve as an attorney representing the 
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child. We respectfully disagree. If this were true, there would be no need for a Rule 40A

order of appointment. Instead, the court would simply appoint an attorney to represent the 

child. Moreover, if the Supreme Court’s intent was to create an attorney-client 

relationship, there would be no need for a rule or court order that assigns specific duties 

for the guardian ad litem to perform or which allows the court to exercise “oversight of

the guardian ad litem’s role.”

5

Tenn. Sup. Ct. R. 40A § 4(c). Furthermore, this argument 

ignores Rule 40A’s mandate that the guardian ad litem shall “consider the child′s 

expressed objectives without being bound by those objectives.” Tenn. Sup. Ct. R. 40A § 

8(b)(5) (emphasis added).

Considering the entirety of Rule 40A, it is apparent that the Supreme Court did not 

intend to create an attorney-client relationship between a guardian ad litem and the child 

or children whose best interests he or she represents. Nevertheless, because all Rule 40A 

guardians ad litem are licensed attorneys, they are subject to the Rules of Professional 

Conduct in the performance of their duties, subject to the parameters of and pursuant to 

exceptions arising from Rule 40A and an order of appointment.6

V. DISCLOSURE OF CONFIDENTIAL INFORMATION

Because a guardian ad litem must be an attorney, he or she is subject to the Rules 

of Professional Conduct in the performance of his or her duties in a legal proceeding. 

However, the scope and extent to which the Rules of Professional Conduct apply are 

subject to the exceptions mandated by the order of appointment and Rule 40A. 

The Preamble to the Rules of Professional Conduct identifies exceptions to the 

rules of confidentiality by providing that “[a] lawyer should keep in confidence 

information relating to representation of a client except so far as disclosure is required 

or permitted by the Rules of Professional Conduct or other law.” Tenn. Sup. Ct. R. 8, 

Preamble § 5 (emphasis added). In this case the “other law” is Rule 40A and the order of 

appointment. 

Moreover, and significantly, Rule 1.6 of the Rules of Professional Conduct, which 

pertains to the disclosure of confidential information, provides an exception that permits 

the disclosure of confidential information if “the disclosure is impliedly authorized in 

order to carry out the representation.” As noted above, Rule 40A and the order appointing 

Defendant as the guardian ad litem for Plaintiff and his two younger siblings expressly 

 

5

See Tenn. Sup. Ct. R. 40A § 8(b)(7) (mandating that the guardian ad litem shall “perform any 

specific task directed by the court.”) 

6

This is also evident from the Advisory Commission Comment that “a guardian ad litem who 

runs afoul of the conflict-of-interest provisions of the Rules of Professional Conduct is subject to 

appropriate disciplinary action.” Tenn. Sup. Ct. R. 40A § 4, adv. comm. cmt.
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authorized the disclosure of confidential information if and to the extent Defendant 

believed the disclosure to be in the children’s “best interests.”

Here, the order appointing Defendant as guardian ad litem provided Defendant 

with the following authority: 

The GAL shall hereby have the authority to and shall maintain 

confidentially of such information obtained by and related to the GAL, 

except: as expressly permitted to be disclosed under this or other 

provision of this order or other executed release, or as permitted pursuant 

to another order from the Court, or as it may be necessary for, or greatly 

aid, the resolution of the issues. The file of the GAL shall otherwise 

remain confidential and not discoverable. 

(emphasis added).

In Plaintiff’s complaint, the only factual basis for the alleged wrongful disclosure 

of confidential information was that Defendant disclosed information “to the Court in 

Division VII without the knowledge, authority or consent of [Plaintiff].” In dismissing 

the case, the trial court reasoned that since the order appointing Defendant guardian ad 

litem expressly authorized disclosure of information to the court, Plaintiff’s complaint 

failed to state a claim. We agree.

IN CONCLUSION

The judgment of the trial court is affirmed, and this matter is remanded with costs 

of appeal assessed against the appellant, Benjamin Runyon.

________________________________

 FRANK G. CLEMENT JR., P.J., M.S.