LEGAL ETHICS OPINION 1725 CONFLICT; APPEARANCE OF
IMPROPRIETY; REPRESENTING DEPT. OF
SOCIAL SERVICES AND ACTING AS
GUARDIAN AD LITEM FOR OTHER CLIENT
WITH MATTER ADVERSE TO DEPT. OF
SOCIAL SERVICES
You have presented a hypothetical situation in which Lawyer A and
Lawyer B practice in a small county. The Department for Social
Services (DSS) hires different attorneys within the county to
handle its caseload. Lawyers A and B represent DSS from time to
time. On any given day, Lawyer A may represent the DSS in one
case in the Juvenile and Domestic Relations District Court, while
Lawyer B is the Guardian ad litem representing the child in the
same case, or Lawyer A may be the Guardian ad litem (GAL) while
Lawyer B represents the DSS.
Under the facts you have presented, you have asked the committee
to opine as whether the situation described presents a conflict
of interest or any appearance of impropriety. You also question
whether this situation may affect the attorneys' professional
judgment.
The disciplinary rules applicable to your inquiry are DR 5-
101(A), requiring a lawyer to decline employment if the lawyer's
professional judgment may be adversely affected by his own
financial, business, property or other personal interests, unless
the client consents after full and adequate disclosure; and DR 5-
105, which prohibits the representation of multiple clients with
conflicting interests unless it is obvious that the lawyer can
adequately represent the interests of each, and the clients
consent after full and adequate disclosure.
The committee has previously opined that even where the legal
matters are dissimilar, the simultaneous representation of
adverse clients is improper unless the clients consent and waive
the conflict. Legal Ethics Opinion 706 (1985). Moreover, the
attorney must be satisfied that his independent professional
judgment on behalf of each client will not be affected and that
he is capable of preserving client confidences and secrets as
required under DR 4-101. Legal Ethics Opinion 916 (1987). It is
not per se improper, under these circumstances, for the attorney
to continue to represent multiple clients in unrelated matters as
long as each client is fully advised of the attorney's
representation of all other clients and the clients consent to
the continued representation. Cf., Legal Ethics Opinion 1408
(1991)(full disclosure and consent will not cure conflict where
it is not obvious that lawyer can adequately represent clients
with conflicting interests in unrelated matters). The committee
has also previously opined that an attorney cannot obtain from a
child the consent required to cure a conflict under DR 5-105.
Legal Ethics Opinion 786 (1986). In Legal Ethics Opinion 957
(1987) an attorney was appointed as GAL for a child in a custody
dispute stemming from the illegal actions of a former executive
director in the department of social services, whom the
attorney's firm also represented in a wrongful discharge claim
against the agency. The committee concluded that the attorney's
role as GAL for the child prevented the attorney from obtaining
the child's consent because the attorney in effect would be
consenting to his own representation. Thus, the attorney's firm
could not continue the multiple representation.
The Code of Virginia requires that the court appoint a "discreet
and competent attorney-at-law" or "some other discreet and
proper person" to serve as GAL to protect the interests of a
person under a disability. Va. Code 8.01-9 (Cum. Supp. 1998).
Virginia Code 16.1-266 (A) expressly limits any such
appointment in the juvenile and domestic relations district court
to "a discreet and competent attorney-at-law. . . ."[1] The GAL
"shall represent the child . . . at any such hearing and at all
stages of the proceedings unless relieved or replaced in the
manner provided by law." Va. Code 16.1-268. Va. Code 8.01-9
states that "every guardian ad litem shall faithfully represent
the estate of the person under a disability for whom he is
appointed, and it shall be the duty of the court to see that the
interest of such defendant is so represented and protected." The
court may enforce this duty by removing the GAL and appointing
another one. In regard to the obligations of the GAL, the Court
of Appeals of Virginia has observed:
We note that the duties of a guardian ad litem when
representing an infant are to defend a suit on behalf
of the infant earnestly and vigorously and not merely
in a perfunctory manner. He should fully protect the
interest of the child by making a bona fide examination
of the facts and if he does not faithfully represent
the interest of the infant he may be removed. . . .
Norfolk Division of Social Services v. Unknown Father, 2 Va. App.
420, 425 n.5, 345 S.E. 2d 533, 536 n.5 (1986). Virginia Rule of
Court 8:6 for the Juvenile and Domestic Relations District Courts
provides: "When appointed for a child, the guardian ad litem
shall vigorously represent the child fully protecting the child's
interest and welfare. . . ."
Therefore, it is the duty of the court to see that the GAL
faithfully represents and protects the child's interests. To do
so, the court must appoint a person, ordinarily an attorney, who
is discreet and competent and who has no interest adverse to the
client's interest. Shainwald v. Shainwald, 302 S.C. 453, 395
S.E.2d 441 (1990). The court is the gatekeeper. If a lawyer
contemplates being appointed by the court as GAL for a child and
senses the potential for a conflict of interest, either because
of a personal interest under DR 5-101 (A), or a multiple
representation under DR 5-105, then the attorney, before
appointment, must make the same full disclosure to the court that
he or she would make to a sui juris client for an informed
consent to the representation.
Thus, the committee believes that any necessary consent to a
possible conflict must emanate from the court. As stated above,
the child is incapable of giving consent to the representation
and waiving the conflict. The court, which has the statutory
responsibility for supervision of the GAL according to Va. Code
16.1-266, is the only agency with the authority to consent to
such representation. In like fashion, the GAL must fully
disclose to the court any conflict of interest that may arise
after the appointment.
A lawyer who serves as an infant's GAL, whether or not an
attorney-client relationship exists, must act in conformity with
the ethical standards governing the avoidance of conflicts of
interests that impair independent professional judgment or dilute
loyalty. See, e.g., Legal Ethics Opinions 957, 1463 and 1626.
See also In re Guardianship of Tamara, L.P., 177 Wis. 2d 770, 503
N.W.2d 333 (1993). In the absence of full disclosure to the
court of possible conflicts, the lawyer serving as GAL violates
his ethical duty both to the court that appoints him and to the
infant whose interests he is to represent faithfully.
Committee Opinion
April 20, 1999
FOOTNOTE
[1] The Juvenile and Domestic Relations District court
must appoint a GAL in any case involving a child who
is: (1) alleged to be abused or neglected; (2) the
subject of an entrustment agreement; (3) the subject of
a petition terminating residual parental rights; or (4)
the subject of a petition filed by a parent who seeks
to be relieved of the child's care or custody. Va.
Code 16.1-266 (A). Appointment of a GAL is likewise
required to review a foster care plan or to review the
child's foster care status. Va. Code 16.1-281 (E).
The Code provides further that a GAL "may" be appointed
in all other cases in which the court believes, in its
discretion, that the interests of the child are not
adequately represented. Va. Code 16.1-266 (D).
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