86-13: Conflicts, Confidentiality; Attorney/Client

11/1986

Attorney may accept employment as both the guardian ad litem and attorney for a minor child in dependency proceedings provided no conflict of interest arises. Attorney representing minor child should follow the wishes of the client as much as possible. Guardian ad litem cannot waive attorney/client privilege.

FACTS

Routinely the juvenile court appoints one attorney to act as both attorney for a minor child and that child's guardian ad litem in connection with dependency proceedings in juvenile court. An attorney who has been asked to serve in that dual function has several ethical questions.

1. May an attorney accept employment as both the guardian ad litem and the attorney for the minor child in dependency proceedings in juvenile court?

2. When an attorney has been appointed both to represent the minor child and to act as the minor child's guardian ad litem, and a conflict arises between the child's wishes and the best interests of the child as perceived by the attorney, may the attorney continue to act as the guardian ad litem? If so, may the attorney who previously represented the minor child waive the attorney-client privilege and testify to statements made to the attorney by the child?

3. When an attorney represents a minor for whom a guardian ad litem has been appointed, does the attorney act in accordance with the wishes of the child or of the guardian ad litem?

ETHICAL RULES INVOLVED

ER 1.6. Confidentiality of Information

(a) A lawyer shall not reveal information relating to representation of a client unless the client consents after consultation, except for disclosures that are impliedly authorized in order to carry out the representation, and except as stated in paragraphs (b), (c) and (d) or ER 3.3 (a)(2).

(b) A lawyer shall reveal such information to the extent the lawyer reasonably believes necessary to prevent the client from committing a criminal act that the lawyer believes is likely to result in death or substantial bodily harm.

(c) A lawyer may reveal the intention of his client to commit a crime and the information necesiary to prevent the crime.

(d) A lawyer may reveal such information to the extent the lawyer reasonably believes necessary to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceedings concerning the lawyer's representation of the client.

ER 1.7 Conflict of Interest: General Rule

(a) A lawyer shall not represent a client if the representation of that client will be directly adverse to another client, unless:

(1) The lawyer reasonably believes the repreIentation will not adversely affect the relationship with the other client; and

(2) each client consents after consultation.

(b) A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer's responsibilities to another client or to a third person, or by the lawyer's own interests, unless:

(1) the lawyer reasonably believes the representation will not be adversely affected; and

(2) the client consents after consultation. When representation of multiple clients in a single matter is undertaken, the consultation shall include explanation of the implications of the common representation and the advantages and risks involved.

ER 1.9 Conflict of Interest: Former Client

A lawyer who has formerly represented a client in a matter shall not thereafter:

(a) represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client conments after consultationt or

(b) use information relating to the representation to the disadvantage of the former client except as ER 1.6 would permit with respect to a client or when the information has become generally known.

ER 1.14 Client Under A Disability

(a) When a client's ability to make adequately considered decisions in connection with the representation is impaired, whether because of minority, mental diiability or for some other reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client.

(b) A lawyer may seek the appointment of a guardian or take other protective action with respect to a client, only when the lawyer reasonably believes that the client cannot adequately act in the client's own interest.

OPINION

The committee is of the opinion that the appointed attorney's first obligation is to the minor client. ER 1.14 requires an attorney to “as far as reasonably possible, maintain a normal client-lawyer relationship with the [disabled] client.” ER 1.2, Scope of Representation, lets forth the responsibilities that a lawyer owes a client. While, in some circumstances, a “lawyer may limit the objectives of the representation”, he can only do so "if the client consents after consultation." ER 1.2(c). It would be inappropriate to ask the disabled client to consent to a limited representation. Such a consent would be necessary if the lawyer's first obligation was to himself or herself as the guardian ad litem.

Although the lawyer's first obligation is to the minor client as the child's attorney, if there is no conflict between the wishes of the child and the best interests of the client", the lawyer may also act in the capacity of guardian ad litem. Thus, the answer to the inquiring attorney's first question is yes, a lawyer may act as both attorney and guardian ad litem for a minor in dependency proceedings.

In the case of a conflict between the wishes of the disabled client and the best interests of the client as perceived by the attorney, the attorney must ask for the appointment of a new guardian ad litem. ER 1.4 (b) states that “[a] lawyer may seek the appointment of a guardian . . . only when the lawyer reasonably believes that the client cannot adequately act in the client's own interest." The point at which a lawyer believes that the client cannot act in his own best interests is the same point at which the client's wishes conflict with what the lawyer believes to be the client's best interests. At that time, the attorney must ask the court for the appointment of separate guardian ad litem.

It would be inappropriate. for the attorney to continue as guardian ad litem and have a new attorney appointed to represent the child. ER 1.9 prohibits a lawyer (absent client consent) from first representing a client and then representing another person, in the same matter, with materially adverse interests. The committee sees no difference between representing the guardian ad litem and acting as guardian ad litem. Again, as is the case with a limited representation, there is an exception if the client consents to the representation after consultation. The committee does not feel that the child client is capable of making such a knowing waiver.

Even assuming that it would be possible for an attorney for the minor to later act as the guardian ad litem, nothing in the rules would allow an attorney acting in a dual capacity to breach the confidences of his or her client, regardless of the client's disability. Specifically, ER 1.9(b) prohibits an attorney from using “information relating to the representation to the disadvantage of the former client."

The inquiring attorney's last question is whether an attorney representing a minor client must follow the wishes of that client, or the instructions of the guardian ad litem? Since, under ER 1.14(a), the attorney should attempt to “maintain a normal client-lawyer relationship with the client", it is the opinion of the committee that in doing so the attorney should follow the wishes of the child as much as possible. If the guardian ad litem believes that what the child wants is not in the child's best interests, then the matter should be taken up with the court. In the same vein, the guardian ad litem cannot waive the attorney-client privilege and expect the attorney for the minor child to reveal otherwise privileged information.

Formal opinions of the Committee on the Rules of Professional Conduct are advisory in nature only and are not binding in any disciplinary or other legal proceeding. This opinion is based on the Ethical Rules in effect on the date the opinion was published. If the rules change, a different conclusion may be appropriate.