Is it a conflict of interest for one lawyer to serve at the same time as a party's attorney of record and as the guardian ad litem?

Plain-English summary

Opinion E-89-13 asked whether an inherent conflict of interest exists for an attorney simultaneously acting as attorney of record and as guardian ad litem. The committee answered no. It noted that the Wisconsin Supreme Court does not perceive an inherent conflict in that dual role, pointing to Wis. Stats. section 803.01(3)(a) and section 757.48(1), which contemplates that the attorney of record may also be the guardian ad litem and in that case is entitled only to attorney fees, and to section 807.10, which provides judicial safeguards in the compromise or settlement of actions involving minors or incompetent persons.

The committee cautioned, however, that circumstances may arise in which the dual roles conflict. SCR 20:1.2 requires a lawyer to abide by a client's decisions concerning the objectives of representation and to consult with the client about the means, and SCR 20:1.14(b) acknowledges the propriety and necessity of seeking the appointment of an independent guardian ad litem in appropriate circumstances. Citing ethics opinions from Virginia (Opinion 932) and Arizona (Opinion 86-13), the committee observed that the lawyer's duty to follow the client's wishes may conflict with the guardian ad litem's duty to pursue the best interests of the minor or incompetent person. When that conflict is or should be reasonably apparent to a prudent and competent attorney, the attorney-guardian ad litem should petition the court for a substitution as guardian ad litem; if the independent guardian ad litem then finds that the course consistent with the client's wishes is contrary to the client's best interests, the matter should be presented to the court for resolution (SCR 20:1.2(a), 20:1.14, and 20:2.1). In summary, the dual role is a common, judicially sanctioned, and monitored practice that is compatible with the rules under most circumstances, but a lawyer who detects a divergence of consequence should seek judicial severance.

Currency note

This opinion was issued in 1989, before Wisconsin's July 1, 2007 adoption of the revised Rules of Professional Conduct for Attorneys (the state's Ethics 2000 update). 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 Treat this page as historical context, not current guidance.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: Is it automatically a conflict to be both the attorney and the guardian ad litem?

A: No. The committee concluded there is no inherent conflict, and that the Wisconsin Supreme Court sanctions and monitors the dual role as a common practice.

Q: When does the dual role become a problem?

A: When the client's wishes and best interests diverge. The committee concluded that when that divergence is or should be reasonably apparent, the lawyer should petition the court to substitute an independent guardian ad litem.

Q: What happens after an independent guardian ad litem is appointed?

A: The court resolves the conflict. The committee concluded that if the independent guardian ad litem finds the course following the client's wishes is contrary to the client's best interests, the matter should be presented to the court.

Background and rules framework

The opinion interpreted SCR 20:1.2 / Model Rule 1.2 (scope of representation and a client's decisions), SCR 20:1.14 / Model Rule 1.14 (client with diminished capacity, including appointment of a guardian ad litem), and SCR 20:2.1 / Model Rule 2.1 (independent professional judgment), in the context of one lawyer serving as both attorney of record and guardian ad litem for a minor or incompetent person. It read these against Wisconsin statutes and out-of-state ethics opinions.

Citations and references

Rules of Professional Conduct:

• Wis. SCR 20:1.2 / Model Rule 1.2 (scope; client's decisions)
• Wis. SCR 20:1.14 / Model Rule 1.14 (client with diminished capacity)
• Wis. SCR 20:2.1 / Model Rule 2.1 (independent professional judgment)

Statutes:

• Wis. Stat. section 803.01(3)(a); section 757.48(1); section 807.10

Other opinions cited:

• Virginia State Bar Op. 932 (1987)
• Arizona Op. 86-13 (1986)

See also

• WI Ethics Op. E-89-14: Communicating With a GAL's Ward
• WI Ethics Op. E-09-04: FCC and GAL Conflicts
• WI Ethics Op. EF-23-02: Guardian ad Litem Conflicts

Source

• Landing page: https://www.wisbar.org/formembers/ethics/pages/formal-opinions.aspx
• Original PDF: https://www.wisbar.org/formembers/ethics/Ethics%20Opinions/E-89-13.pdf