Does a Maine lawyer who works only as a guardian ad litem need an IOLTA account, and can they partner with non-lawyer GALs?

Plain-English summary

A licensed Maine attorney who works only as a court-appointed guardian ad litem (GAL) in Title 19-A and Title 22 cases asked whether she must use an IOLTA account for GAL fees, and whether she may form a business with non-lawyer GALs and parent coordinators offering only those services. The Commission's threshold conclusion drives both answers: under the Maine Rules for Guardians ad Litem, a GAL acts as a quasi-judicial officer of the court, not as a member of the GAL's underlying profession, so when an attorney serves as a GAL she is not acting as a lawyer or practicing law. GAL conduct is governed by the judicial code rather than the Rules of Professional Conduct, and complaints go to the appointing or chief judge, not the Board of Overseers. The opinion treats GAL work as "law-related services" under Rule 5.7(b).

On the IOLTA question, the opinion notes that while Maine attorneys generally must certify an IOLTA account, an attorney is exempt if not engaged in the private practice of law or holding no client funds beyond retainers or cost advances. Because the GAL has no clients in an attorney-client relationship and is not practicing law, she falls within the exemption and need not maintain an IOLTA account. On the partnership question, Rule 5.4(b) bars a lawyer-nonlawyer partnership only if any of its activities consist of the practice of law, and Rule 5.4(a) bars sharing legal fees with non-lawyers; since the proposed partnership delivers only GAL services (not legal services) and its fees are not legal fees, neither prohibition applies.

The opinion stresses the conclusions are fact-dependent. The lawyer remains subject to the Maine Bar Rules and Rules of Professional Conduct because she is admitted to practice. If she later accepts matters as an attorney, the analysis may change; any legal services must be kept distinct from the GAL work, and she must take reasonable measures (especially if she identifies herself as an attorney, for example on letterhead) so that those obtaining the law-related services understand they are not legal services.

In practice

Under the Maine rules as the opinion read them in 2010, a lawyer who works exclusively as a court-appointed GAL is providing a law-related service under Rule 5.7, not practicing law. The opinion holds she is therefore within the exemption from the mandatory IOLTA requirement and may form a partnership with non-lawyers limited to GAL and coordination services, because none of the partnership's activities are the practice of law and its fees are not legal fees under Rule 5.4. The opinion holds these conclusions depend on the facts: the lawyer must keep any legal services distinct from the GAL work, and if she identifies herself as an attorney she must take reasonable measures so clients understand the GAL services are not legal services.

Common questions

Q: Is a Maine attorney acting as a guardian ad litem practicing law?

A: No. The opinion concludes that under the Maine Rules for Guardians ad Litem a GAL acts as a quasi-judicial officer, not as a lawyer, so the work is a law-related service under Rule 5.7, governed by the judicial code rather than the Rules of Professional Conduct.

Q: Does a lawyer who works only as a GAL need an IOLTA account?

A: No, on these facts. The opinion concludes she is not engaged in the private practice of law and has no clients holding funds beyond the exempt categories, so she falls within the exemption from the mandatory IOLTA requirement.

Q: Can a lawyer form a business with non-lawyer GALs and parent coordinators?

A: Yes, on these facts. The opinion concludes that because the partnership's activities are not the practice of law and its fees are not legal fees, Rule 5.4's bars on nonlawyer partnerships and fee sharing do not apply.

Q: What if the lawyer also takes legal matters?

A: The opinion states the conclusions are fact-dependent: legal services must be kept distinct from GAL work, and if the lawyer identifies herself as an attorney she must take reasonable measures so people understand the GAL services are not legal services.

Background and rules framework

The opinion interprets Maine Rule of Professional Conduct 5.7 (responsibilities regarding law-related services), Rule 5.4 (professional independence; nonlawyer partnerships and fee sharing), and Rule 1.15 (safekeeping property and IOLTA), corresponding to the ABA Model Rules, together with the Maine Bar Rules on IOLTA (M. Bar R. 6) and the Maine Rules for Guardians ad Litem.

Citations and references

Rules of Professional Conduct:

• Model Rules 5.7, 5.4, 1.15
• Maine R. Prof. Conduct 5.7, 5.4(a), 5.4(b), 1.15; M. Bar R. 6(a)(2)

Cases:

• Board of Overseers of the Bar v. Mangan, 2001 ME 7, defining the practice of law.

See also

• CA Formal Op. 1995-141: Lawyer Rendering Non-Legal Services
• ABA Formal Op. 464: Fee Division With Lawyers Who Share With Nonlawyers
• ABA Formal Op. 499: Passive Investment in Alternative Business Structures
• RI EAP Op. 2009-03: Proposed Multidisciplinary Practice Combining GAL Representation With Mental-Health and Mediation Services Violates Rule 5.4

Source

• Landing page: https://mebaroverseers.org/attorney_services/opinion.html?id=122787

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Issued by the Professional Ethics Commission

Date Issued: August 11, 2010

Question

Attorney X has asked the Professional Ethics Commission two questions concerning her work as a Guardian ad litem (hereinafter GAL).

• Is a licensed Maine attorney who serves only as a court-appointed GAL in M.R.S. Title 19-A and Title 22 cases required to utilize an IOLTA account for the GAL fees paid by the parents?

• Assume the same fact scenario: Is it permissible for Attorney X to establish a business with non-lawyer GALs and Parent Coordinators if the only professional services delivered to parties are those two distinct services? The business would be limited to GAL and Coordination services and the lawyers would not be identified as lawyers.

Opinion

This inquiry first requires an analysis as to whether an attorney who serves solely as a court-appointed GAL is performing legal services or is engaged in the practice of law. GALs in Maine are subject to the Maine Rules for Guardians ad Litem, which provide that:

?[T]hese Rules and the accompanying Standards are to be governed and interpreted by application of the principles that a Guardian is a quasi-judicial officer of the Court, and that a Guardian does not act as a member of the Guardian's underlying profession, but rather as a judicial officer, primarily subject to and governed by the Court.?

M.R.Guardians ad Litem I.B.

GALs do not have to be lawyers. CASA certified volunteers and individuals with credentials in various mental health fields may also serve in this role. Even when a GAL?s underlying profession is that of attorney, the Code of Judicial Conduct governs GAL practice rather than the M.R.Prof.Conduct.1 Complaints against GALs are to be referred to the Judge who appointed the GAL (pending cases) or to the Chief Judge of the District Court rather than to the Board of Overseers of the Bar.

Hence, when attorneys in Maine act as GALs, they are not acting as lawyers, and their work falls within the definition of ?law-related services? under M.R.Prof.Conduct 5.7(b).2 Although all attorneys admitted to, or engaging in, the practice of law in Maine are covered by the Maine Rules of Professional Conduct, attorneys are not subject to those Rules when they are performing only law-related services if the provision of law-related services is distinct from the lawyer?s provision of legal services. See M.Bar R. 1(a) & M.R.Prof.Conduct Rule 5.7(a).3

Question #1

All attorneys registered in Maine are required to certify that they maintain at least one IOLTA trust account. M.Bar R. 6(a)(2)(A)(1). However, an attorney is exempt from this requirement if he or she is not engaged in the private practice of law or holds no client funds other than retainers or advances for costs and expenses. M.Bar R. 6(a)(2)(B)(1) & (6).

Attorney X, although licensed to practice in Maine, restricts her business to court-appointed GAL services. Under the M.R. Guardians ad Litem, she is not performing those services as a lawyer. Although neither the Maine Bar Rules nor the Maine Rules of Professional Conduct define ?legal services? or the ?practice of law?, those concepts are centered around a lawyer?s responsibility to clients in the provision of services that (1) would be the unauthorized practice of law if performed by a non-attorney and/or (2) require the application of legal knowledge and skill in applying legal principles and precedent to ?the preparation of legal documents, their interpretation, the giving of legal advice, or the application of legal principles to problems of any complexity . . .? Board of Overseers of the Bar v. Mangan, 2001 ME 7, 13.

Attorney X does not have clients within the context of an attorney-client relationship. When she is working as a GAL, she is working as a quasi-judicial officer and not as an attorney. Hence, while she is undoubtedly applying her legal knowledge and skill and applying legal principles to complex problems, she is doing so in the provision of law-related services only, distinct from the provision of any legal services, and she is not engaged in the private practice of law. Therefore, Attorney X, assuming the professional arrangement she describes, is exempt from maintaining an IOLTA account.

Question #2

M.R.Prof.Conduct 5.4(b) prevents lawyers from forming a partnership with non-lawyers ?if any of the activities of the partnership consist of the practice of law.? Similarly, M.R.Prof.Conduct 5.4(a) prevents attorneys from sharing ?legal fees? with non-attorneys.

Attorney X proposes forming a partnership with a non-attorney solely for the provision of GAL services and asserts that she would not be identified as a lawyer. Assuming this set of facts, and consistent with the analysis of Question #1 above, none of the activities of the partnership Attorney X is proposing consist of the practice of law and the fees paid to the partnership are not legal fees.

Conclusion

Attorney X is subject to the Maine Bar Rules and the Maine Rules of Professional Conduct in her professional activities because she is admitted to practice law in Maine. This is true even though, by rule, when serving as a GAL, she is not working as an attorney and is not practicing law. However, because of the nature of her work, she falls within an exception to the mandatory IOLTA requirement in M. Bar R. 6(a)(2)(A)(1), and because she is not practicing law in her professional work, she may choose to form a partnership with a non-attorney.

These conclusions are dependent upon the facts presented. If in the future Attorney X accepts any matters that come to her professional offices as an attorney rather than as a GAL, these conclusions may change. Any provision of legal services to a client must be kept distinct from the Attorney?s work as a GAL, and the Attorney must take reasonable measures to assure that a person obtaining the law-related services knows that the services are not legal services.4

Footnotes

1M.R.Guardians ad Litem II.3.A, entitled ?Standards of Conduct?, obligates Guardians, including those who are attorneys, to comply with ?Paragraphs 1 & 2 of the Preamble, and with the sections entitled Standards of Performance, Abuse of Position, Discrimination, and Conflict of Interest of the Judicial Branch Code of Conduct? but does not require compliance with, or even mention, the M.R.Prof.Conduct.

2The term ?law-related services? denotes services that might reasonably be performed in conjunction with and in substance are related to the provision of legal services, and that are not prohibited as unauthorized practice of law when provided by a nonlawyer. M.R.Prof.Conduct 5.7(b).

3Rule 1.15 of the MRPC requires that lawyers create IOLTA accounts for certain client funds and directly references Rule 6 of the MBR for the specific parameters for IOLTA accounts.

4Attorney X does not intend to identify herself as an attorney when she is hired as a GAL. While the Rules do not require her to do this, any self-identification as an attorney, for example on office letterhead, would require reasonable countermeasures to make sure that prospective clients understand that the services offered are not legal services.