Can a lawyer who served as a child's guardian ad litem in a protective services case later prosecute a termination of parental rights case involving the same child?
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This page answers the general question as of 1987. Ezel answers yours: whether it's allowed on your facts, under the current rules of professional conduct in your state, with citations.
Plain-English summary
Opinion E-87-12 asked whether an attorney who once acted as guardian ad litem for a child in protective services proceedings may subsequently act as prosecutor in a termination of parental rights proceeding involving the same child. The committee concluded that the attorney may not do so, and likewise may not act as lawyer for the defendant in the termination proceeding, unless three conditions are met: the facts and issues in the two proceedings bear no substantial relationship; no confidential information was acquired as guardian ad litem that would materially relate to the termination of parental rights proceeding; and the former client, that is, the child, through his or her guardian ad litem in the parental rights proceeding, provides informed consent to the representation.
The committee grounded its analysis in SCR 20:1.9, treating the child as the lawyer's former client and the guardian-ad-litem role as creating duties that carry into the later proceeding, and cited its earlier Formal Opinions E-85-8 and E-85-9. It recommended that the disclosures and consent be in writing.
Currency note
This opinion was issued in 1987, before Wisconsin's July 1, 2007 adoption of the revised Rules of Professional Conduct for Attorneys (the state's Ethics 2000 update). The former-client conflict rule SCR 20:1.9 was later revised. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.
Common questions
Q: Can a former guardian ad litem for a child later prosecute a termination case about that child?
A: Per the opinion, generally no. The committee concluded SCR 20:1.9 bars it unless the matters are not substantially related, no relevant confidential information was acquired, and the child consents through the guardian ad litem.
Q: Does the same limit apply if the lawyer wants to defend rather than prosecute?
A: Yes. The committee concluded the lawyer may not act as prosecutor or as lawyer for the defendant in the termination proceeding under the same conditions.
Q: Who gives consent for the child?
A: The committee said the former client is the child, and consent is provided through the child's guardian ad litem in the parental rights proceeding, preferably in writing.
Background and rules framework
The opinion interpreted SCR 20:1.9 / Model Rule 1.9 (duties to former clients), applying the substantial-relationship and confidential-information analysis to a lawyer who moves from a child's guardian ad litem to prosecutor (or defense counsel) in a related termination of parental rights case.
Citations and references
Rules of Professional Conduct:
- Wis. SCR 20:1.9 / Model Rule 1.9 (duties to former clients)
Other opinions cited:
- Wisconsin Formal Ops. E-85-8, E-85-9 (1985)
See also
- WI Ethics Op. EF-23-02: Guardian ad Litem Conflicts
- WI Ethics Op. E-89-4: Suing a Former Joint Client
- WI Ethics Op. E-88-2: Prosecutor's Conflicts With Kin
Source
- Landing page: https://www.wisbar.org/formembers/ethics/pages/formal-opinions.aspx
- Original PDF: https://www.wisbar.org/formembers/ethics/Ethics%20Opinions/E-87-12.pdf
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