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WISBAR December 26, 2009

Can a Family Court Commissioner later serve as guardian ad litem in a case the commissioner already acted on?

Short answer: The opinion concludes that under SCR 20:1.12(a) a lawyer who participated personally and substantially in a matter as a Family Court Commissioner (an adjudicative officer) cannot later act as guardian ad litem in that same matter. Approving stipulations or issuing orders that affect the parties or the merits counts as personal and substantial participation. In Wisconsin the bar is not waivable, but an affected lawyer can be timely screened to save the rest of a firm.

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Currency note: this opinion is from 2009
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Plain-English summary

Opinion E-09-04 (December 26, 2009) answers a lawyer who worked half-time as a Family Court Commissioner (FCC) and half-time as a guardian ad litem (GAL) for children in CHIPS and termination-of-parental-rights cases in the same county. The committee first notes that an FCC's conduct is governed by the Code of Judicial Conduct (SCR Chapter 60) and that the Judicial Commission, not the State Bar ethics committee, opines on judicial conduct; this opinion is limited to the lawyer's role as GAL under the attorney rules.

The governing rule is SCR 20:1.12(a), which bars a lawyer from representing anyone in a matter in which the lawyer participated personally and substantially as a judge, adjudicative officer, or third-party neutral. Reviewing treatise commentary and out-of-state authority (including South Carolina, Illinois, and Alabama opinions and decisions from Ohio and North Dakota), the committee concludes that any participation reaching the merits or directly affecting the parties' rights is personal and substantial. Approving a stipulation or issuing an order, even a routine one entered without meeting the parties, qualifies; purely administrative steps, such as routing a case to another FCC under a rotation schedule, do not. Each of the requestor's examples (signing an order to show cause, a negative-notice order, stipulations, a default paternity judgment, or presiding over a contempt hearing) involved an order or approval affecting the parties, so each is personal and substantial participation.

The committee then addresses when two cases are the same "matter," borrowing the definition in SCR 20:1.11(e) and its comment: cases are the same matter when they involve the same parties and largely the same facts and issues. Applying that standard, a child-support enforcement action and a later CHIPS action involving the same father but a different mother and child are almost certainly not the same matter, though the committee frames the answer as provisional and fact-driven. Because a GAL "represents" the child within the meaning of the rules, the SCR 20:1.12(a) prohibition on representing "anyone" reaches GAL service. The committee adds two points the requestor did not raise: in Wisconsin the SCR 20:1.12(a) bar is not subject to party waiver (unlike ABA Model Rule 1.12), and under SCR 20:1.12(c) a firm can avoid imputation by timely screening the affected lawyer, ensuring the lawyer shares no fee, and giving written notice to the parties and any tribunal.

In practice

Under this opinion, conduct matching its fact pattern is treated as follows. As the rules stood at the time of the opinion, a Wisconsin lawyer who acted substantively as a Family Court Commissioner in a case, by approving a stipulation, signing an order, or otherwise affecting the parties or the merits, could not later serve as GAL in that same matter, and the conflict could not be cured by the parties' consent. The committee concludes that whether a later case is the "same matter" turns on shared parties, facts, and issues, and that a firm can avoid disqualification by timely screening the affected lawyer under SCR 20:1.12(c).

Common questions

Q: Does routine paperwork as an FCC create a later conflict?

A: Yes, if it affects the merits or the parties' rights. The committee concludes that approving stipulations or issuing orders, even routine ones entered without meeting the parties, is personal and substantial participation under SCR 20:1.12(a); only purely administrative acts, like assigning a case to another FCC, are not.

Q: When are a family case and a later CHIPS or TPR case the same "matter"?

A: When they share the same parties and largely the same facts and issues. The committee, borrowing the SCR 20:1.11(e) definition, concludes that a child-support case and a later CHIPS case with a different mother and child are almost certainly not the same matter, though the answer is fact-specific.

Q: Can the parties waive this conflict?

A: No. The committee concludes that, unlike ABA Model Rule 1.12, SCR 20:1.12(a) is not subject to waiver by the parties in Wisconsin.

Q: Does the conflict disqualify the lawyer's whole firm?

A: Not if the lawyer is screened. The committee concludes that under SCR 20:1.12(c) a firm avoids imputation by timely screening the affected lawyer, ensuring the lawyer receives no part of the fee, and giving written notice to the parties and any tribunal.

Background and rules framework

The opinion interprets SCR 20:1.12 / Model Rule 1.12 (former judge, adjudicative officer, or third-party neutral), reading "personally and substantially" through Comment [1] and outside authority, and it borrows the definition of "matter" from SCR 20:1.11(e) / Model Rule 1.11. It also references SCR 20:1.0(d) ("firm"), SCR 20:1.0(n) (screening), SCR 20:4.2 (a GAL's ward has client status), and SCR 20:4.5 (GALs are bound by the rules).

Citations and references

Rules of Professional Conduct:

  • Wis. SCR 20:1.12(a), (c), (d) / Model Rule 1.12 (former adjudicative officer or neutral)
  • Wis. SCR 20:1.11(e) / Model Rule 1.11 (definition of "matter")
  • Wis. SCR 20:1.0(d) ("firm"); SCR 20:1.0(n) (screening)
  • Wis. SCR 20:4.2 (ward of a GAL has client status); SCR 20:4.5 (GALs bound by the rules)

Cases:

  • Office of Disciplinary Counsel v. Christ, 74 Ohio St.3d 308, 658 N.E.2d 746 (1996), former judge who signed a divorce decree could not later represent a party
  • Application for Disciplinary Action against Hoffman, 670 N.W.2d 500 (N.D. 2003), presiding over a default divorce is personal and substantial participation
  • James v. Mississippi Bar, 962 So.2d 528 (Miss. 2007), abuse and later custody-modification cases were the same "matter"
  • Durham County v. Richards & Associates, Inc., 742 F.2d 811 (4th Cir. 1984), later arbitrability dispute was not the same "matter"
  • Disciplinary Proceedings against Kinast, 192 Wis.2d 36, 530 N.W.2d 387 (1995), a GAL's ward is a client for SCR 20:4.2

Other opinions cited:

  • South Carolina Ethics Advisory Op. 93-26 (1993); 99-06 (1999): approving routine agreements is substantial participation
  • Illinois State Bar Advisory Op. 800 (1983); Alabama Ethics Op. 1993-04 (1993); Indiana Ethics Op. No. 2 of 2004

See also

Source

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