Can a lawyer who served as a child's guardian ad litem in an abuse and neglect case later represent the custodial parent in an action to enforce or modify child support?

Plain-English summary

A lawyer was appointed by the family court to serve as guardian ad litem for three minor children in a DSS abuse and neglect proceeding. During the case the guardian conducted home visits and kept regular contact with the custodial parties. The court granted permanent custody to the custodian (the biological father of two children and grandfather of one), DSS closed the case, and the guardian's services ended. The question is whether the former guardian may later represent that custodian in a private action to enforce or modify child support, on the theory that such an action benefits the children the guardian once served.

The committee concluded the lawyer should not take the representation. Drawing on its prior Opinion 04-08 and on Townsend v. Townsend, 323 S.C. 309, 474 S.E.2d 424 (1996), the committee explained that although the lawyer-guardian is not technically the child's lawyer, the court treats the child as a former client for conflict-analysis purposes. The committee acknowledged the conflict is less obvious here than in Townsend (where the guardian later sought to reduce support, a position plainly adverse to the child), because enforcing or increasing support may serve the child's interests. But the guardian obtained information in that role, including significant financial information about the parties, that is likely very relevant to a later support action.

Applying Rule 1.9, the committee found the support action substantially related to the abuse and neglect action under Comment [3]'s test, which treats matters as substantially related when there is a substantial risk that confidential information normally obtained in the prior representation would materially advance the client's position in the later matter. If there is material adversity between the child and the custodian, Rule 1.9 prohibits the representation; because the guardian's role is unique, material adversity is typically difficult to ascertain, so the committee recommended against the proposed conduct. The committee added that, although less likely than in a custody action, the lawyer might still be a necessary witness, which Rule 3.7 generally prohibits while acting as advocate at trial. Consistent with its prior opinions (08-04, holding a guardian could not also serve as the child's lawyer; 04-08, holding a guardian could not later represent a non-custodial parent seeking a support reduction), the committee concluded the former guardian also may not represent the custodial parent in a later enforcement or modification action.

In practice

The opinion holds that, under South Carolina Rule 1.9 and the analysis in Townsend, a lawyer who served as a child's guardian ad litem must treat the child as a former client and may not take a later, substantially related representation where material adversity to the child exists; because that adversity is hard to ascertain given the guardian's unique role, the committee recommended against representing the custodial parent in a later child support enforcement or modification action. The opinion also notes the lawyer may be a necessary witness, implicating Rule 3.7's general bar on serving as advocate at a trial where the lawyer is likely to testify.

Common questions

Q: Is a child treated as the lawyer's former client when the lawyer served as guardian ad litem?

A: Yes, for conflict purposes. The committee, following Townsend v. Townsend, said that although the lawyer-guardian is not the child's lawyer, the court treats the child as a former client when analyzing conflicts under Rule 1.9.

Q: Why is a later child support action "substantially related" to the abuse and neglect case?

A: The committee applied Comment [3] to Rule 1.9, noting the guardian obtained financial and other information in the earlier matter that would normally remain confidential and that is likely very relevant to a later support action.

Q: Does it matter that enforcing or increasing support might help the child?

A: The committee acknowledged the conflict is less obvious than in a support-reduction case, but said material adversity between the child and the custodian is typically difficult to ascertain given the guardian's unique role, so it recommended against the representation.

Q: Could the lawyer-as-witness rule also apply?

A: Yes. The committee noted that although less likely than in a custody action, the former guardian might be a necessary witness, which Rule 3.7 generally prohibits while the lawyer acts as advocate at trial.

Background and rules framework

The opinion interprets South Carolina Rule 1.9 (duties to former clients, with Comment [3]'s "substantially related" test) and Rule 3.7 (lawyer as necessary witness), which correspond to the like-numbered Model Rule provisions. It builds on the committee's prior opinions on guardian ad litem conflicts (04-08 and 08-04) and on the South Carolina Supreme Court's decision in Townsend v. Townsend, which treats the child as a former client for conflict analysis even though the guardian is not technically the child's lawyer.

Citations and references

Rules of Professional Conduct:

• MR 1.9 / SC Rule 1.9, Comment [3] (duties to former clients; "substantially related" matters)
• 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), child treated as former client of the lawyer-guardian for conflict analysis

Other opinions cited:

• S.C. Bar Ethics Advisory Opinion 04-08: former guardian ad litem may not later represent a non-custodial parent in a support-reduction action
• S.C. Bar Ethics Advisory Opinion 08-04: a guardian ad litem may not also serve as the child's lawyer

See also

• SC Bar Ethics Op. 04-08: Ex-Guardian ad Litem Conflict
• SC Bar Ethics Op. 08-04: GAL, GAL's Counsel, Not Child's
• SC Bar Ethics Op. 09-05: Law Clerk as a Witness

Source

• Landing page: https://www.scbar.org/for-lawyers/quicklinks/legal-resources/ethics-advisory-opinions/ethics-advisory-opinion-09-12/
• Original PDF: https://www.scbar.org/media/2palfegq/09-12.pdf

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 09-12

SC Rules of Professional Conduct: 1.9; 3.7

SC Bar Ethics Advisory Opinions: 04-08; 08-04

Facts

A lawyer is appointed by the court to serve as a guardian ad litem for three minor children. The guardian ad litem conducts home visits with the custodial parties and maintains regular contact with the custodial parties throughout the course of the DSS proceeding. The family court issues an order granting permanent custody to the custodian (biological father of 2 children and the grandfather of 1 child) who had physical custody of the children throughout the DSS proceeding. DSS closes the case and the guardian's services are no longer required.

Questions

Is the lawyer who previously served as the guardian ad litem for three minor children prohibited from later serving as counsel to the custodial parent/grandparent if this person later wishes to bring a private action to enforce or modify child support since the action that would be brought would be for the benefit of the children for whom the guardian ad litem previously served?

Summary

A lawyer who previously served as the guardian ad litem for three minor children in an abuse and neglect action should not represent the custodial parent/grandparent in a later action to enforce or modify child support.

Opinion

This committee previously issued Ethics Advisory Opinions addressing the responsibilities and obligations of a guardian ad litem. In abuse and neglect proceedings, the lawyer who serves as a guardian ad litem is responsible for protecting the child’s interests during litigation. As advised in Opinion 04-08, the guardian’s special position in these cases allows the guardian to obtain information that may not be available to others. This opinion also relied on Townsend v. Townsend, 323 S.C. 309; 474 S.E.2d 424 (1996), where the guardian ad litem for the child in a divorce action later sought to represent the father in an action for a reduction. In Townsend, the conflict is more obvious as the lawyer, in advocating for a reduction or termination, is taking a position more easily recognizable as adverse to the best interests of the child. According to Townsend, although the lawyer guardian is not the child’s lawyer, the court will treat the child as a former client for purposes of conflict analysis.

When the former guardian ad litem is asked to now serve as the lawyer for the custodian, the conflict is less clear as enforcing or increasing child support may be in the child’s best interests. However, while the lawyer has been relieved as guardian ad litem as the abuse and neglect action has been closed, the lawyer obtained information as the guardian ad litem that is likely very relevant to the current action including significant financial information from the parties. An action to enforce or modify child support is substantially related to the initial abuse and neglect action under the test in Comment 3 to Rule 1.9. It states that “[m]atters are ‘substantially related’ for purposes of this Rule if they involve the same transaction or legal dispute or if there otherwise is a substantial risk that confidential factual information as would normally have been obtained in the prior representation would materially advance the client’s position in the subsequent matter.” Under Rule 1.9, then, if there is material adversity between the child and the custodian, the lawyer is prohibited from now representing the current custodian. Because the role of guardian ad litem is unique, the existence of material adversity is typically difficult to ascertain. Thus, the committee recommends against the proposed conduct.

Although a lawyer is not as likely to be called as a witness in a child support action as in a custody action (discussed in Ethics Advisory Opinion 04-08), the possibility still exists. With limited exceptions, Rule 3.7 requires that a lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness.

This committee’s prior opinions found that a guardian ad litem could not also represent the child (Ethics Advisory Opinion 08-04) and that a guardian ad litem could not later represent a non- custodial parent in a child support reduction action (Ethics Advisory Opinion 04-08). Because of the special nature of a guardian ad litem’s role, the guardian ad litem also may not represent a custodial parent in a later action for enforcement or modification of child support.