RIEAP August 6, 2009

A group of lawyers and mental health professionals want to form a not-for-profit together offering psychological services, co-parenting mediation, and guardian ad litem representation in family cases. Does Rule 5.4 allow this?

Short answer: No. The panel held that serving as a guardian ad litem is the practice of law, and a multidisciplinary business combining that practice with mental-health and mediation services provided jointly with non-lawyers is prohibited by Rule 5.4, which bars fee-sharing with non-lawyers and bars law-practice partnerships with non-lawyers.

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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 rules of professional conduct in your state, with citations.

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 Not binding precedent.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 as a PDF) is the authoritative source for any reliance.

View original ethics opinion (PDF)

Plain-English summary

The inquiring attorney has a family law practice and serves as a guardian ad litem in divorce and child custody cases; the Family Court appoints lawyers as guardians ad litem to protect and promote a child's best interests, and may also appoint mental health professionals for forensic or custody evaluations, co-parenting counseling, or counseling for the child. The attorney, together with a group of other lawyers and mental health professionals, proposed to create a not-for-profit organization providing psychological services, visitation services, parent-education training, co-parenting/mediation services, and guardian ad litem representation, for private family disputes on the Family Court's domestic calendar (excluding the DCYF calendar).

The panel first addressed whether serving as a guardian ad litem is the practice of law, a substantive-law question it noted lies outside the area of legal ethics, but found the answer sufficiently settled by Rhode Island Family Court Administrative Order 2006-02 ("Guardian ad Litem Standards for Domestic Cases"), issued under G.L. section 15-5-16.2(c). That order limits the Family Court's guardian ad litem roster to properly credentialed individuals holding a current, valid license to practice law or a current, valid license as a Licensed Clinical Social Worker, Licensed Marriage or Family Therapist, Licensed Psychologist or Psychiatrist, or qualified professional in a related field, plus proof of professional liability insurance; the panel concluded that a licensed professional appointed as a guardian ad litem serves in that role in a professional capacity, and that an attorney doing so is practicing law. Because the proposed business would include the practice of law, the panel applied Rule 5.4: Rule 5.4(a) bars a lawyer from sharing fees with non-lawyers (with exceptions inapplicable here), and Rule 5.4(b) bars a lawyer from forming a partnership with a non-lawyer if any of the partnership's activities consist of the practice of law. The panel concluded that the proposed multidisciplinary business, which would include the practice of law through guardian ad litem representation, is not permitted by the Rules of Professional Conduct.

In practice

The opinion holds that, under the Rhode Island rules as they stood at the time of the opinion, an attorney's service as a guardian ad litem in Family Court is the practice of law, based on the licensing and credentialing requirements of Family Court Administrative Order 2006-02. Because the proposed multidisciplinary organization would combine that legal practice with services from non-lawyer mental health professionals in a jointly owned business, Rule 5.4(a)'s bar on fee-sharing with non-lawyers and Rule 5.4(b)'s bar on law-practice partnerships with non-lawyers prohibit the arrangement.

Common questions

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

A: Yes, according to this opinion. The panel found that Family Court Administrative Order 2006-02, which limits the guardian ad litem roster to licensed professionals including licensed attorneys, sufficiently establishes that an attorney serving as guardian ad litem does so in a professional capacity and is practicing law.

Q: Can lawyers and mental health professionals form a joint business to provide both guardian ad litem representation and counseling or mediation services?

A: Not as proposed here. The opinion concludes Rule 5.4 prohibits it: Rule 5.4(a) bars sharing legal fees with non-lawyers, and Rule 5.4(b) bars forming a partnership with non-lawyers where any of the partnership's activities is the practice of law, which guardian ad litem work is.

Q: Does it matter that the proposed organization would be not-for-profit?

A: The opinion's analysis does not turn on profit status; it applies Rule 5.4's categorical bars on fee-sharing and law-practice partnerships with non-lawyers regardless of the organization's not-for-profit structure.

Background and rules framework

The opinion interprets Rhode Island Rule 5.4 (Professional Independence of a Lawyer), which tracks Model Rule 5.4. Rule 5.4(a) prohibits a lawyer from sharing legal fees with a non-lawyer, subject to exceptions not applicable here, and Rule 5.4(b) prohibits a lawyer from forming a partnership with a non-lawyer if any of the partnership's activities consist of the practice of law. The threshold question of whether guardian ad litem service is the practice of law was resolved by reference to Rhode Island General Laws section 15-5-16.2(c) and Family Court Administrative Order 2006-02, rather than by the Rules of Professional Conduct themselves.

Citations and references

Rules of Professional Conduct:

MR 5.4(a) (professional independence of a lawyer; no fee-sharing with non-lawyers)
MR 5.4(b) (no partnership with non-lawyers where any activity is the practice of law)

Statutes:

R.I. Gen. Laws section 15-5-16.2(c), (c)(ii), (c)(x) (Family Court appointment of guardians ad litem; administrative rulemaking authority)

Cases:

None cited.

Other opinions cited:

None cited.

Source

Landing page: https://www.courts.ri.gov/attorney-resources/Pages/Ethics-Advisory-Panel-default.aspx
Original PDF: https://www.courts.ri.gov/Opinions/EAP%2009-03.pdf

Original opinion text

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

Final

             Rhode Island Supreme Court Ethics Advisory Panel
                 Opinion No. 2009-03 Request No. No. 963
                           Issued August 6, 2009

FACTS:

    The inquiring attorney has a family law practice. He/she serves as a guardian ad

litem in divorce and child custody cases. The Family Court appoints lawyers to serve as
guardians ad litem to protect and promote the best interests of children whose families are
involved in litigation. The Family Court may also appoint mental health professionals to
provide forensic or custody evaluations, co-parenting counseling, or counseling for the
child.

   The inquiring attorney, together with a group of other lawyers and mental health

professionals, proposes to create a not-for-profit organization to provide psychological
services, visitation services, parent-education training, co-parenting/mediation services,
and guardian ad litem representation.

   The inquiring attorney states that there are agencies in Rhode Island and throughout

the country in which attorneys and social workers work together to provide services to
families and children. The inquiring attorney further states that typically, such
organizations work with indigent populations, with children in the child welfare system, or
both. The inquiring attorney cites C.A.S.A., which works with D.C.Y.F. families, as an
example of such an organization. The inquiring attorney states that the proposed
organization would provide services in private family disputes on the Family Court's
domestic calendar, excluding the D.C.Y.F. calendar.

ISSUE PRESENTED:

    The inquiring attorney asks whether it is the practice of law when an attorney

serves as a guardian ad litem, and whether Rule 5.4 permits the proposed organization.

OPINION:

    An attorney who serves as a guardian ad litem is practicing law. The proposed

multidisciplinary business, which would include the practice of law through guardian ad
litem representation, is prohibited by Rule 5.4 of the Rules of Professional Conduct.

REASONING:

  Section 16.2 of Chapter 5 of Title 15 of the Rhode Island General Laws, entitled,

"Divorce and Separation" states in pertinent part:

          (c) the court may, if in its discretion it deems it necessary
          or advisable, appoint an attorney or a guardian ad litem to

Final Op. 2009-03
Page 2 of 2

                 represent the interest of a minor or dependent child with
                 respect to his or her support, custody, and visitation.
                                             ***
                 (ii) The guardian ad litem shall be appointed from a list of
                 persons properly credentialed pursuant to administrative
                 orders of the chief judge of the family court;
                                             ***
                 (x) The chief judge of the family court shall issue,
                 through administrative orders, rules governing the
                 appointment and performance of guardians ad litem in
                 domestic proceedings.


          Pursuant to the authority granted in G.L.§5-15-16.2(c)(ii) and (x), the Rhode Island
  Family Court issued Administrative Order 2006-02 entitled "Guardian ad litem Standards
  for Domestic Cases." Section II, paragraph (a)(1) of the Standards sets forth the criteria
  for being listed on the Family Court guardian ad litem roster: A properly credentialed
  individual must hold either a current valid license to practice law in the State of Rhode
  Island, or a current, valid license to practice as a Licensed Clinical Social Worker, a
  Licensed Marriage or Family Therapist, a Licensed Psychologist or Psychiatrist in the
  State of Rhode Island, or a qualified professional in a related field. Section II, paragraph
  (a)(1) also requires proof of professional liability insurance coverage. Thus, only licensed
  professionals may serve as guardians ad litem. It follows then, that a licensed professional
  who is appointed as a guardian ad litem serves in that role in his or her professional
  capacity.

         Whether or not an act or conduct constitutes the practice of law is a substantive law
  question which is outside the area of legal ethics. The plain language of Administrative
  Order 2006-02, however, sufficiently satisfies this Panel that an attorney who serves as a
  guardian ad litem is practicing law. Therefore the Rules of Professional Conduct governs
  the propriety of the business that the inquiring attorney has proposed.

         In response to the inquiring attorney's question about whether Rule 5.4 of the Rules
  of Professional Conduct applies, the Panel answers in the affirmative. Rule 5.4(a)
  prohibits lawyers from sharing fees with non-lawyers, with four exceptions that have no
  application to this inquiry. Rule 5.4(b) prohibits lawyers from forming partnerships with
  non-lawyers if any of the activities of the partnership consists of the practice of law.

         The Panel concludes that the proposed multidisciplinary business, which would
  include the practice of law through guardian ad litem representation, is not permitted by
  the Rules of Professional Conduct.




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