Ezel / Ethics Opinions / MBAR
MBAR January 15, 2009

Can a lawyer take a second guardian ad litem appointment when the new role would require approving the lawyer's own prior GAL bills?

Short answer: Not without a fix. The opinion concludes that reviewing one's own prior invoices is a non-waivable conflict under Rule 1.7(b) because the incompetent ward cannot consent, so the lawyer must decline unless he tells the court he will not review his own prior invoices and the court arranges another reviewer.

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This page answers the general question as of 2009. Ezel answers yours: whether it's allowed on your facts, under the current Massachusetts Rules of Professional Conduct, with citations.

Currency note: this opinion is from 2009
Subsequent statutory amendments, court decisions, or later opinions or rule amendments may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
Disclaimer: Advisory only. Not binding precedent.
About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked on this page) is the authoritative source for any reliance.

Plain-English summary

A lawyer was appointed guardian ad litem for an incompetent ward in connection with a guardian's account, was paid from the guardianship estate, and was then appointed GAL again to review the permanent guardian's later accounts, which would include the payment of his own earlier invoice. He asked whether having to review his own prior work required him to decline.

The opinion first establishes that a lawyer serving as a GAL to represent a ward's interests in an accounting is doing typical lawyer's work and is subject to the Rules of Professional Conduct (it cites Rule 5.7 on law-related services). It then applies Rule 1.7(b): a lawyer may not represent a client if the representation may be materially limited by the lawyer's own interests, unless the lawyer reasonably believes it will not be adversely affected and the client consents. Because an incompetent ward (or a class of unborn or unascertained persons) cannot consent, the conflict is not waivable.

The opinion concludes that if the payment of the lawyer's own invoice is among the items submitted for court approval, Rule 1.7(b) makes it mandatory to decline the appointment absent some other arrangement. It then offers a workable path, recognizing that courts often reappoint a familiar GAL for economy: the lawyer may accept the repeat engagement if, by motion before accepting, he brings to the court's attention that he will not review his own prior invoices and that the court must make its own determination of their reasonableness, so the court can appoint another GAL for that limited purpose or in his place.

In practice

Under the Massachusetts rules as they stood at the time of the opinion, the bar is the self-review of the lawyer's own fees. The opinion holds that because the ward cannot consent, the Rule 1.7(b) conflict is non-waivable, so a GAL whose new charge would include passing on his own prior invoices must decline unless the review is carved out.

The opinion holds that the lawyer may still take the reappointment if he discloses to the court, by motion before accepting, that he will not review his own prior invoices and that the court must assess their reasonableness itself or appoint another GAL for that task.

Common questions

Q: I'm a GAL being reappointed, and the new account includes my own prior bill. Can I serve?

A: The opinion concludes you may not, if approving your own invoice is part of the appointment, because the ward cannot consent and Rule 1.7(b) makes that conflict non-waivable, absent another arrangement.

Q: Is there any way to accept the reappointment?

A: Yes. The opinion advises moving, before accepting, to tell the court you will not review your own prior invoices, so the court can determine their reasonableness itself or appoint a separate GAL for that limited purpose.

Q: Do the ethics rules even apply to a lawyer acting as a guardian ad litem?

A: Per the opinion, yes. A lawyer appointed as GAL to represent a ward's interests is performing typical lawyer's work and is subject to the Rules of Professional Conduct, as Rule 5.7 on law-related services confirms.

Background and rules framework

The opinion interprets Massachusetts Rule of Professional Conduct 1.7(b) (a conflict arising from the lawyer's own interests, and the consent it would require) and Rule 5.7 (law-related services), applying them to a lawyer serving as a guardian ad litem under G.L. c. 206, Section 24. It distinguishes that accounting role from the investigatory GAL role under G.L. c. 215, Section 56A. These correspond to the like-numbered ABA Model Rules.

Citations and references

Rules of Professional Conduct:

  • MR 1.7(b) / Mass. R. Prof. C. 1.7(b) (conflict from the lawyer's own interests; client consent)
  • MR 5.7 / Mass. R. Prof. C. 5.7 (law-related services)

Statutes:

  • G.L. c. 206, Section 24 (guardian ad litem representing a person's interests in accounting matters)
  • G.L. c. 215, Section 56A (investigatory guardian ad litem)

See also

Source

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