Can a lawyer who served as guardian ad litem in a child-custody case later represent one side in a new custody dispute over a sibling?

Plain-English summary

Lawyer A had been the appointed guardian ad litem for a two-year-old in a Department of Social Services action against the child's parents, which ended with the paternal grandparents getting custody and the parents getting supervised visitation. Later the parents had a new baby, and the grandparents, believing the parents were still abusing drugs, asked Lawyer A to represent them in a private custody action over the newborn. The question was whether Lawyer A could take that representation.

The committee answered no, on two grounds. First, Rule 1.9 (duties to former clients) prohibits it because the new representation would be substantially related to the prior guardian ad litem role. Although a guardian ad litem does not formally represent the parents, the guardian's neutral fact-finding position gives access to confidential information a party might not otherwise disclose. The committee relied on Townsend v. Townsend, where the South Carolina Supreme Court applied the substantial-relationship test to a former guardian ad litem and defined it to include confidential information the lawyer reasonably could have learned. Lawyer A had personal knowledge of the prior DSS case and the settlement, and in a contested custody action would be expected to use all available information against the parents, who had confided in the guardian believing the guardian to be a neutral fact-finder.

Second, Rule 3.7 (lawyer as witness) would bar the representation because Lawyer A would be a necessary witness. The circumstances of the first child's removal would be critical to removing the second child, and the credibility of Lawyer A's testimony would be a central issue. The committee concluded both Rule 1.9 and Rule 3.7 required Lawyer A to decline the representation.

In practice

Under this opinion, on the facts presented, a former guardian ad litem could not switch to advocating for one side against the parents in a related custody matter. The committee tied the bar to Rule 1.9's substantial-relationship test as construed in Townsend (reaching information the lawyer reasonably could have learned in the prior role) and to Rule 3.7's prohibition on serving as advocate where the lawyer is a necessary witness. It noted the potential harm to the would-be clients if the lawyer's credibility as a witness became a contested issue.

Common questions

Q: I was a guardian ad litem in a custody case. Can I now represent a family member against the parents in a new custody case?

A: No. The committee concludes Rule 1.9 bars it because the new matter is substantially related to the guardian ad litem role, and Rule 3.7 bars it because you would likely be a necessary witness.

Q: I never formally represented the parents as guardian, so how does the former-client rule apply?

A: The committee, following Townsend v. Townsend, treats the guardian ad litem's access to confidential information about the parties as enough to trigger Rule 1.9's substantial-relationship test, even without a formal lawyer-client relationship.

Q: Why is being a likely witness a problem?

A: Under Rule 3.7, a lawyer cannot act as advocate at a trial where the lawyer is a necessary witness. The circumstances of the first child's removal would be critical, and the committee noted the clients could be harmed if the lawyer's credibility were questioned.

Background and rules framework

The opinion applies South Carolina's versions of Model Rule 1.9 (duties to former clients) and Model Rule 3.7 (lawyer as witness), in the South Carolina Rules of Professional Conduct, Rule 407, SCACR. It relies on the South Carolina Supreme Court's application of the substantial-relationship test to a former guardian ad litem in Townsend v. Townsend.

Citations and references

Rules of Professional Conduct:

• MR 1.9 / SC Rule 1.9 (duties to former clients; substantial-relationship test)
• MR 3.7 / SC Rule 3.7 (lawyer as necessary witness)

Cases:

• Townsend v. Townsend, 323 S.C. 309, 474 S.E.2d 424 (S.C. 1996), former guardian ad litem disqualified under the substantial-relationship test

See also

• SC Bar Ethics Op. 04-10: Imputed conflict and the lawyer-as-witness rule
• SC Bar Ethics Op. 05-05: Lawyer's HOA lien against a former buyer-client

Source

• Landing page: https://www.scbar.org/for-lawyers/quicklinks/legal-resources/ethics-advisory-opinions/ethics-advisory-opinion-04-08/

Original opinion text

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

UPON THE REQUEST OF A MEMBER OF THE SOUTH CAROLINA BAR, THE ETHICS ADVISORY COMMITTEE HAS RENDERED THIS OPINION ON THE ETHICAL PROPRIETY OF THE INQUIRER’S CONTEMPLATED CONDUCT. THIS COMMITTEE HAS NO DISCIPLINARY AUTHORITY. LAWYER DISCIPLINE IS ADMINISTERED SOLELY BY THE SOUTH CAROLINA SUPREME COURT THROUGH ITS COMMISSION ON LAWYER CONDUCT.

Ethics Advisory Opinion 04-08

Facts
Lawyer A was the appointed Guardian ad Litem for a two-year-old child in a DSS action against the child’s parents. This action resulted in an agreement between the child’s biological parents and paternal grandparents that granted the grandparents custody of the child. The parents were left with supervised visitation with only the two-year-old child. Now biological parents have a new baby, but paternal grandparents believe that they are still abusing drugs. Paternal grandparents approach Lawyer A to represent them in an action against the biological parents for custody of the newborn baby.

Question
Is it permissible for Lawyer A to represent the grandparents in a contested private custody action after having been Guardian ad Litem in a DSS action over custody of the two-year-old child?

Summary
No. Rule 1.9, Conflict of Interest: Former client would prohibit the subsequent representation of the grandparents because the new representation would be “substantially related” to Lawyer A’s prior role as Guardian ad Litem. Further, Lawyer A would also violate Rule 3.7, Lawyer as Witness, since Lawyer A would most likely be deemed a “necessary witness” in the new custody action.

Opinion
Rule 1.9 of the South Carolina Rules of Professional Conduct governs representation against a former client. Subsection (c) provides:

A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter:

(1) use information relating to the representation to the disadvantage of the former client except as Rule 1.6 [Confidentiality of Information] or Rule 3.3 [Candor Toward the Tribunal] would permit or require with respect to a client, or when the information has become generally known; or

(2) reveal information relating to the representation except as Rule 1.6 or Rule 3.3 would permit or require with respect to a client.

Clearly, a Guardian ad Litem does not “represent” the parents in any action. The purpose of the Guardian is to report to the Court on the best interests of the child involved in the dispute. By virtue of this “neutral” position in a case, the Guardian is normally privy to information which one party might not wish to disclose to the other side. The Comments to Rule 1.9 specify, “The underlying question is whether the lawyer was so involved in the matter that the subsequent representation can be justly regarded as a changing of sides in the matter in question.”

As discussed in the Annotations to Rule 1.9, South Carolina has a case that is analogous with this fact situation. Annotated South Carolina Rules of Professional Conduct, 2002 Edition, Robert M. Wilcox and Nathan M. Crystal (2002). Townsend v. Townsend, 323 S.C. 309, 474 S.E.2d 424 (1996), involved a lawyer who had acted as Guardian ad Litem in a divorce matter and later attempted to represent the father in an action to reduce child support against the mother and the child. Our Supreme Court defined the “substantially related” test of Rule 1.9 to include confidential information which the lawyer “reasonably could have learned.” They further stated:

Here, although he claims none of the same information was actually used in the two matters, Lawyer should have recognized the risk that information he gained during the custody matter in which he was Daughter’s guardian ad Litem might prove relevant to the child support claim and particularly to the college support claim in the action in which he represented Father. Annotated South Carolina Rules of Professional Conduct, 2002 Edition, Robert M. Wilcox and Nathan M. Crystal (2002), citing 323 S.C. at 317-318, 474 S.E.2d at 429.

From Townsend, one could reasonably assume that our state’s Supreme Court views the position of Guardian ad Litem as one which would involve the gathering of intimate information about the parties to the case. As such, despite the lack of a formal lawyer-client relationship with the parents, Lawyer A still would have a problem representing grandparents against the parents. Lawyer A clearly had the ability to gather confidential information both for and against the biological parents. More to the point, Lawyer A has personal knowledge of the prior DSS case, and the ensuing agreement the grandparents made with the parents in order to bring the case to a close. In a disputed custody action, Lawyer A would be remiss if she did not use all information at her disposal to prove the parents unfit and accomplish the goal of awarding custody to the grandparents. Further, the use of this information would fly in the face of the parents, who had been relating confidences to a lawyer whom they believed to be a mere fact-finder, and not the opposition.

In addition to Rule 1.9, Rule 3.7 Lawyer as Witness would prove a difficult hurdle for Lawyer A to overcome. Rule 3.7 provides that a lawyer cannot act as advocate in a trial in which she is a “necessary witness.” The rule allows exceptions only for uncontested issues, testimony about the nature and value of legal advice rendered, and matters in which disqualification would work a substantial hardship on the client. In the Annotations to Rule 3.7, Wilcox and Crystal highlight that even if the testimony would help the case, the client could ultimately suffer: essentially, the credibility and value of the evidence being presented by Guardian A might be questioned because of Lawyer A’s duty to the current client.

In the fact situation presented, Lawyer A would obviously be a necessary witness in the custody action. The circumstances surrounding the removal of the two-year-old child from the biological parents would certainly be critical in an action to remove a second child from their custody. Lawyer A would be doing the grandparent-clients an injustice by failing to acknowledge that his credibility as a witness would be a critical aspect in the case. Due to the great potential for harm to the grandparent-clients, Lawyer A should not position himself to act as both lawyer and fact witness.

While this committee does not speak to the legal principles which govern the importance of Guardian/Lawyer A’s potential testimony, the bare facts of this situation are such that both Rule 1.9 and Rule 3.7 would require Lawyer A to decline representation of the grandparents in their pursuit of custody for the newborn child.