Is a Virginia lawyer disqualified from serving as guardian ad litem because opposing counsel is a former law partner?

Plain-English summary

Attorneys A and B were once in the same firm. While there, Attorney B represented a husband in a divorce; Attorney A did no work on the matter and learned nothing about it. Attorney B later left the firm, kept that client, and the divorce concluded. In the ensuing custody dispute, Attorney B represented the father, and the court appointed Attorney A as guardian ad litem for the child. Attorney A disclosed the prior firm association to the court, the mother orally waived any conflict, and the judge let A continue. After the mother switched to new counsel (Attorney D), D objected that A's service was an impermissible conflict.

The committee, noting there is no rule expressly addressing the guardian ad litem role, applies its LEO 1729 framework (where a GAL's specific duties do not conflict with the usual conduct rules, the usual rules govern) and resolves the question under Rules 1.7, 1.9, and 1.10(a). Applied directly to Attorney A, neither rule creates a conflict: A does not represent the husband (no Rule 1.7(a) direct adversity), the prior firm tie does not "materially limit" A's representation of the child (Rule 1.7(b)), and the husband was never A's client (no Rule 1.9 conflict).

The committee then runs the imputation analysis. Rule 1.10(a) imputes a firm member's conflict to other members while they are associated, but Comment 7 and Rule 1.10(b) limit imputation to lawyers currently in the firm together. Because Attorney B left A's firm and A never acquired confidential information about B's representation, B's knowledge is not imputed to A, and B's current representation of the father cannot trigger a conflict for A. The committee concludes Attorney A has no conflict of interest in serving as guardian.

On the second question, the committee holds the mother's oral assent was neither necessary nor sufficient: there was no conflict needing a waiver, and (per LEO 1725) a GAL who senses a possible conflict makes disclosure to the court, not to a party, so it is the court's approval, not the mother's consent, that matters.

In practice

The opinion holds that, under the Virginia rules as they stood at the time, a lawyer appointed as guardian ad litem is not disqualified merely because opposing counsel is a former law partner, where the lawyer did no work on and learned no confidential information about the former partner's representation and the partner has left the firm. Per the opinion, Rule 1.10 imputation runs only among lawyers currently associated in a firm, so a departed partner carries the conflict away. The opinion also holds that a GAL who senses a possible conflict makes disclosure to the court for resolution rather than seeking a party's consent.

Common questions

Q: Can a lawyer be guardian ad litem when opposing counsel is a former law partner?

A: The opinion says yes, where the lawyer never worked on or learned confidential information about the former partner's representation and the partner has since left the firm, so no conflict arises.

Q: Does Rule 1.10 impute a departed partner's conflict back to former colleagues?

A: No. The opinion says imputation under Rule 1.10(a) runs only among lawyers currently in a firm together; once the partner leaves, his client knowledge is not imputed to the lawyers he left behind, unless one of them actually acquired confidential information.

Q: Did the mother's oral waiver matter?

A: The opinion says no. There was no conflict to waive, and even if there were, a guardian ad litem makes disclosure to the court rather than seeking a party's consent (LEO 1725), so it was the court's approval that controlled.

Q: How are a guardian ad litem's duties reconciled with the conduct rules?

A: The opinion applies LEO 1729: where a GAL's specific duties conflict with the usual rules, the GAL duties prevail; where they do not conflict, the ordinary conduct rules govern, as they did here.

Background and rules framework

The opinion interprets Rule 1.7 (Model Rule 1.7, general conflicts), Rule 1.9 (Model Rule 1.9, duties to former clients), and Rule 1.10(a) and (b) (Model Rule 1.10, imputed disqualification, including Comment 7 on departed lawyers). It applies the committee's earlier LEO 1729 (reconciling GAL duties with the conduct rules) and LEO 1725 (a GAL discloses potential conflicts to the court), and notes LEO 1806.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.7 / Virginia Rule 1.7 (conflict of interest: general rule)
• Model Rule 1.9 / Virginia Rule 1.9 (conflict of interest: former client)
• Model Rule 1.10 / Virginia Rule 1.10(a), (b) (imputed disqualification; departed lawyers, Comment 7)

Other opinions cited:

• Virginia LEO 1729 (reconciling guardian ad litem duties with the conduct rules)
• Virginia LEO 1725 (guardian ad litem discloses potential conflicts to the court)
• Virginia LEO 1806 (limiting imputation to lawyers currently in the firm)

See also

• VA LEO 1821: Suing a Board a Partner Sits On
• VA LEO 1826: Attorney-Mediator Conflicts on Referral
• ABA Formal Op. 497: Conflicts and Materially Adverse Interests
• ABA Formal Op. 510: Avoiding Imputation of a Prospective-Client Conflict

Source

• Landing page: https://vsb.org/Site/about/rules-regulations/leo-opinions.aspx
• Original PDF: https://www.vsb.org/common/Uploaded%20files/LEOs/1810.pdf

Original opinion text

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

Committee Opinion
December 10, 2004
LEGAL ETHICS OPNION 1810

CONFLICT OF INTEREST – ATTORNEY
SERVING AS GUARDIAN AD LITEM WHEN
OPPOSING COUNSEL IN THE DIVORCE
MATTER WAS A FORMER PARTNER.

You have presented a hypothetical involving a potential conflict of interest in a custody
dispute. Previously, Attorney A and Attorney B were in the same firm. During that
time, Attorney B represented the husband in a divorce. Attorney A did no work on the
matter and learned no information about it. Attorney B left the firm, continued to
represent that husband, and the divorce became final. That client and his ex-wife then
had a custody dispute. Attorney B represents this father in that dispute. Originally,
Attorney C represented the mother. The court appointed Attorney A as the guardian ad
litem for the child. Attorney A presented to the court that he had been in a firm with
Attorney B at the start of the divorce, but never worked on the case and learned no
information. The mother orally waived any conflict before the judge. The judge
permitted Attorney A to remain as guardian. The mother has subsequently changed
attorneys, hiring Attorney D. Attorney D raises an objection to Attorney A’s service as
guardian as Attorney D maintains that it presents an impermissible conflict of interest.
Under the facts you have presented, you have asked the committee the following
questions:
1) Does Attorney A have a conflict in continuing as guardian ad litem?
2) Does the mother waive any potential conflict by her prior actions?
The appropriate and controlling ethical rules applicable to this scenario are Rules 1.7,
1.9 and 1.10(a), which provide as follows:
Rule 1.7 (Conflict of Interest: General Rule)
(a) A lawyer shall not represent a client if the representation of that
client will be directly adverse to another existing client, unless:
(1) the lawyer reasonably believes the representation will not
adversely affect the relationship with the other client; and
(2) each client consents after consultation.
(b) A lawyer shall not represent a client if the representation of that
client may be materially limited by the lawyer's responsibilities to
another client or to a third person, or by the lawyer's own interests,
unless:
(1) the lawyer reasonably believes the representation will not be
adversely affected; and

Committee Opinion
December 10, 2004

(2) the client consents after consultation. When representation of
multiple clients in a single matter is undertaken, the consultation shall
include explanation of the implications of the common representation
and the advantages and risks involved.
Rule 1.9 (Conflict of Interest: Former Client)
(a) A lawyer who has formerly represented a client in a matter shall
not thereafter represent another person in the same or a substantially
related matter in which that person's interests are materially adverse to
the interests of the former client unless both the present and former
client consent after consultation.
(b) A lawyer shall not knowingly represent a person in the same or a
substantially related matter in which a firm with which the lawyer
formerly was associated had previously represented a client
(1) whose interests are materially adverse to that person; and
(2) about whom the lawyer had acquired information protected by
Rules 1.6 and 1.9(c) that is material to the matter; unless both the
present and former client consent after consultation.
(c) 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 or gained in the course of the
representation to the disadvantage of the former client except as Rule
1.6 or Rule 3.3 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.
Rule 1.10 (Imputed Disqualification: General Rule)
(a) While lawyers are associated in a firm, none of them shall
knowingly represent a client when any one of them practicing alone
would be prohibited from doing so by Rules 1.6, 1.7, 1.9, or 2.10(e).

Committee Opinion
December 10, 2004
There is no express provision in the Rules of Professional Conduct addressing the
unique circumstances of the role of guardian ad litem. In LEO 1729 1, this committee
opined that
Where fulfilling a specific duty of the guardian ad litem conflicts with
the traditional duties required of an attorney under the Code of
Professional Responsibility, the specific duty of the guardian ad litem
should prevail. When the duties do not conflict, the GAL should
follow the traditional course of action required under the Code of
Professional Responsibility.
The committee opines that the present scenario is of the latter sort. The usual rules
provisions regarding conflicts of interest do not conflict with this guardian ad litem’s
duties. Resolution of this conflicts issue depends upon an application of Rules 1.7, 1.9,
and 1.10(a) to Attorney A’s representation (as guardian) of the child.
Attorney D charges that Attorney A has an impermissible conflict of interest in
representing the child as guardian ad litem. The committee opines that Rule 1.7, when
applied to Attorney A’s representation, does not establish a conflict of interest. Attorney
A does not represent the husband; thus, Attorney A does not have a conflict under
paragraph (a) of the rule, regarding direct adversity between current clients. Also, the
committee opines that Attorney A does not have a conflict of interest under paragraph (b)
of the rule, regarding a lawyer’s own interests. That Attorney A previously worked with
Attorney B is not such a strong connection as to “materially limit” Attorney A’s ability to
represent the child.
Rule 1.9 also does not trigger a conflict of interest for Attorney A. That rule can only
apply regarding a former client. The husband was never a client of Attorney A;
therefore, Attorney A does not have a Rule 1.9 conflict of interest here.
Applying Rules 1.7 and 1.9 directly to Attorney A is not the end of the analysis for
determining whether Attorney A has a conflict of interest preventing this representation.
Rule 1.10 (a) imputes conflicts of interest to other members of an attorney’s firm. Thus,
the question becomes, does Attorney B’s representation of the husband, either now or
previously while with Attorney A’s firm, preclude Attorney A from involvement as
guardian. The two attorneys were in a firm together at the time Attorney B initiated his
representation of the father in the divorce. As outlined above, Rule 1.7 precludes an
attorney from representing one client directly adverse to another client in that matter. If
that rule precludes any attorney in a firm from representing a particular client, Rule
1.10(a) extends that bar to every other attorney in the office. Thus, no member of
Attorney B’s present firm can represent anyone else in B’s client’s domestic matter.

1

LEO 1729 makes reference to the Code of Professional Responsibility, which were the ethics rules in
effect at the time of that opinion. The change to the Rules of Professional Responsibility, effective January
1, 2000, does not change the committee’s position stated in LEO 1729.

Committee Opinion
December 10, 2004
While Attorneys A and B were in the same firm in the past, Attorney B left that firm.
Comment 7 to Rule 1.10 explains the application of the imputation concept to a law firm
where an attorney has left the firm. Comment 7 states, in pertinent part, that:
Rule 1.10(b) operates to permit a law firm, under certain circumstances,
to represent a person with interests directly adverse to those of a client
represented by a lawyer who formerly was associated with a firm.

Paragraph (b) of the rule establishes that a law firm may represent any client previously
represented by a firm attorney who has left the firm so long as no attorney currently in
the firm has confidential information about that representation. In applying Rule 1.10 to
Attorney B’s representation of this client, the imputation of conflicts of interest is limited
to those attorneys in the firm together now. See LEO 1806. Attorney B’s current
representation of this father cannot trigger any conflict of interest for Attorney A as
Attorney A and Attorney B are now in two different firms and Attorney A did not learn
any confidential information about the representation. 2
Similarly, Rule 1.9(a) could only reach Attorney A, through the imputation language of
Rule 1.10(a), if some member of his current firm used to represent a party in the matter;
that is not the case. Attorney A would also not have a conflict of interest under Rule
1.9(c) regarding use of information gained in a prior representation. Attorney A himself
received no confidential information from the father. To reiterate, Rule 1.10 does not
impute Attorney B’s information to members of the firm he left. Thus, Rule 1.10 does
not impute the information gained by Attorney B to Attorney A as they are no longer in
the same firm.
The committee opines that Attorney A has no conflict of interest in serving as the
guardian ad litem for the child in the custody case even though his former partner
represents the father.
Your second question asks whether the mother has waived any conflict of interest here
by her prior actions. The scenario and question contemplate that the mother’s oral assent
to Attorney A’s appointment as guardian may have operated as such a waiver. The
committee opines that this position is unfounded for two reasons.
First, the committee opined in response to question one, above, that appointment as
guardian ad litem triggers no conflict of interest for Attorney A. Accordingly, there is no
conflict in need of a waiver or consent.

2

The hypothetical scenario provided no facts suggesting that unlike Attorney A, some other member of his
firm did learn confidential information about Attorney B’s representation of the husband while at the firm.
Accordingly, the committee reads the facts that Attorney A like all members of his firm received no such
information while Attorney B was with the firm.

Committee Opinion
December 10, 2004
Secondly, were Attorney A concerned about a possible conflict of interest in this
situation, it would not be the mother’s consent that he would need. In LEO 1725, this
committee opined that if:
A lawyer contemplates being appointed by the court as GAL for a child
and senses the potential for a conflict of interest, either because of a
personal interest … or a multiple representation…then the attorney,
before appointment, must make the same full disclosure to the court
that he or she would make to a sui juris client for an informed consent
to the representation.
Thus, the proper course for Attorney A if concerned about a possible conflict of interest
would be to present the circumstances to the court for resolution. According to the
scenario of this request, Attorney A did exactly that and the court approved his
appointment. The mother’s consent was neither sufficient, nor necessary.
The committee opines that Attorney A permissibly serves as guardian ad litem in this
custody dispute; no conflict of interest precludes that service.