Can a lawyer who served as guardian ad litem in a conservatorship proceeding then be hired as counsel to the conservator?

Plain-English summary

The committee considered whether a lawyer who served as guardian ad litem in a conservatorship proceeding could, a few days after the proceeding concluded, accept employment as counsel to the conservator. It emphasized the special character of the guardian ad litem's role: the guardian assumes a special trust, acts as an arm of the court, serves by judicial appointment, and must account to the court. In a conservatorship the court relies on the guardian's investigation and conclusions on questions like the need for a conservator and the fitness of candidates to serve.

Because the guardian discharges what is essentially a quasi-judicial or public function, the committee said he must be free of all personal influences (EC 5-1) and must avoid even the appearance of impropriety (DR 9-101(B), Canon 9). It found a very real risk that the prospect of future employment could influence the guardian: in reporting on the need for a conservator and reviewing candidates, the guardian could enhance his own chance of later being retained, and the public might perceive him as feathering his own nest. The committee said that appearance was heightened where, as here, the proffered retainer followed so closely on the proceeding's conclusion.

Having resolved the inquiry under Canon 9, the committee declined to reach the additional concerns it noted, including a possible actual conflict if the court's decision remained subject to modification and the risk of disclosing confidences and secrets in violation of DR 4-101(B). The question was answered in the negative.

Currency note

This opinion was issued in 1979, before New York replaced the Code of Professional Responsibility with the Rules of Professional Conduct in 2009. Canon 9's "appearance of impropriety" standard was not carried forward into the Rules of Professional Conduct; the personal-interest concern is now addressed at Rule 1.7(a)(2), and the rules on lawyers who served as third-party neutrals or in quasi-judicial roles at Rule 1.12. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Can a guardian ad litem later represent the conservator in the same matter?

A: No. The committee held that a lawyer who served as guardian ad litem may not shortly afterward become counsel to the conservator, because the prospect of that employment compromises the independence of the quasi-judicial role.

Q: Why did the committee focus on appearance rather than an actual conflict?

A: It resolved the question under Canon 9's appearance-of-impropriety standard and expressly declined to reach whether an actual conflict or a threat to client confidences also existed.

Q: Did the timing of the offer matter?

A: Yes. The committee said the appearance of impropriety was heightened because the retainer was offered just days after the conservatorship proceeding concluded.

Background and rules framework

The opinion applied Canon 9 and DR 9-101(B) (avoiding the appearance of impropriety) and EC 5-1 (freedom from personal influences) to a guardian ad litem's move to private employment by the conservator. The closest current Model Rule analogues are Rule 1.7(a)(2) (personal-interest conflicts) and Rule 1.12 (lawyers who served as judges, arbitrators, mediators, or other third-party neutrals).

Citations and references

Rules of Professional Conduct:

• MR 1.7(a)(2) (personal-interest conflicts)
• MR 1.12 (former judge or third-party neutral)
• NY Canon 9, EC 5-1, DR 4-101(B), DR 9-101(B)

Cases:

• Armstrong v. McAlpin (2d Cir. 1979), influence of the prospect of future employment

See also

• NY State Bar Op. 511: Lawyer appearing before a judge he had represented
• NY State Bar Op. 512: Lawyer for co-executors caught between them

Source

• Landing page: https://nysba.org/opinion-514/