How do conflict-of-interest and confidentiality rules apply to a Wisconsin guardian ad litem who represents a ward's best interests rather than the ward personally?
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Plain-English summary
Opinion EF-23-02 (revised January 21, 2025) addresses how the disciplinary rules apply to guardians ad litem (GALs), who in Wisconsin must be lawyers and who, under SCR 20:4.5, represent and act in the individual's best interests even against the individual's wishes. The threshold question is who the GAL's client is. The committee concludes the GAL does have a client, the "best interests" of the ward, rejecting the view that "best interests" is too abstract to be a client. It reasons that SCR 20:4.5 and the governing statutes say the GAL "represents" those interests, that core duties like competence and diligence are owed to clients, and that lawyers already represent non-person clients such as corporations under SCR 20:1.13.
Treating the ward's best interests as the client, the committee explains that GAL conflicts are analyzed the same way as any lawyer's. It walks through SCR 20:1.7 (current-client conflicts, illustrated by La Crosse County v. Rose K., where a lawyer could not be both GAL for children and counsel enforcing child support for the county), SCR 20:1.9 (former-client conflicts, illustrated by In re Tamara L.P., where prior advocacy for the ward barred later GAL service via the substantial-relationship test), SCR 20:1.10 (imputation of those conflicts to a GAL's whole firm, with limited screening exceptions), SCR 20:1.8 (personal-interest conflicts), and SCR 20:1.18 (duties to prospective clients). Wisconsin case law, the committee notes, has consistently analyzed GAL conflicts by treating the ward as the client.
The hardest problem is informed consent: a consentable conflict normally requires the client's written, signed consent, but the "best interests" of a ward cannot sign, and the ward usually lacks capacity to consent. The committee canvasses the options and recommends that a GAL who in good faith believes a conflict is consentable describe it to the appointing court, in open court with interested parties heard, and let the court decide whether the GAL may continue; SCR 20:1.6(c)(6) permits the necessary conflict disclosure. The committee cautions this procedure has no direct basis in existing law, that judicial approval does not eliminate the need to obtain written consent from any other affected current or former client, and that a GAL who cannot show continuing serves the ward's best interests should withdraw. The opinion also confirms that confidentiality (SCRs 20:1.6, 1.8(b), 1.9(c)), the no-contact rule (SCR 20:4.2, extended to wards by case law), and the advocate-witness rule (SCR 20:3.7, per Hollister) apply to GALs.
In practice
Under this opinion, conduct matching its fact pattern, a Wisconsin GAL facing a conflict of interest, is handled by treating the ward's best interests as the client and analyzing the conflict under the ordinary conflict rules. The committee concludes that a GAL must run conflict checks against all current and former firm clients before accepting an appointment, that imputation under SCR 20:1.10 reaches the whole firm, and that a GAL with a conflict that is consentable in principle should present it to the appointing court for approval (in open court, with parties heard) rather than relying on a consent the abstract client cannot give, while still obtaining written consent from any other affected client. If continuing would not serve the ward's best interests, the committee concludes the GAL should withdraw.
Common questions
Q: Does a guardian ad litem have a "client" under the ethics rules?
A: Yes. The committee concludes the GAL's client is the "best interests" of the ward, reasoning that SCR 20:4.5 says the GAL "represents" those interests and that lawyers can represent non-person clients.
Q: How are GAL conflicts analyzed?
A: The same way as any lawyer's. The committee concludes conflicts are analyzed under SCRs 20:1.7, 20:1.9, and 20:1.10, treating the ward as the client, as Wisconsin case law has done.
Q: Are a GAL's conflicts imputed to the firm?
A: Yes. The committee concludes SCR 20:1.10 imputes a GAL's SCR 20:1.7 and 20:1.9 conflicts to every lawyer in the firm, so a lawyer must check conflicts against all current and former firm clients before accepting a GAL appointment.
Q: How can a GAL get informed consent when the client is an abstraction?
A: Through the court. The committee recommends that a GAL with a conflict believed to be consentable present it to the appointing court for approval, while still obtaining written consent from any other affected client.
Q: Can a GAL be called as a witness?
A: Generally no. The committee notes that under Hollister v. Hollister the GAL's role as advocate for the ward's best interests precludes being called as a witness in the matter.
Background and rules framework
The opinion interprets SCR 20:4.5 (the Wisconsin-specific rule defining a GAL's role), which has no Model Rule counterpart, together with the conflict rules SCRs 20:1.7, 20:1.8, 20:1.9, 20:1.10, and 20:1.18 / Model Rules 1.7-1.10 and 1.18. It also applies SCR 20:1.6 / Model Rule 1.6 (confidentiality, including the 20:1.6(c)(6) conflict-checking disclosure), SCR 20:4.2 / Model Rule 4.2 (contact with a represented person), and SCR 20:3.7 / Model Rule 3.7 (lawyer as witness). The governing GAL statutes include Wis. Stat. sections 48.235, 54.40, and 767.407.
Citations and references
Rules of Professional Conduct:
- Wis. SCR 20:4.5 (guardian ad litem; representing the individual's best interests)
- Wis. SCR 20:1.7, 20:1.9, 20:1.10 / Model Rules 1.7, 1.9, 1.10 (conflicts; imputation)
- Wis. SCR 20:1.18 / Model Rule 1.18 (duties to prospective clients)
- Wis. SCR 20:1.6 / Model Rule 1.6 (confidentiality; conflict-checking disclosure)
- Wis. SCR 20:4.2, 20:3.7 / Model Rules 4.2, 3.7 (contact with represented persons; lawyer as witness)
Cases:
- La Crosse County Dep't of Soc. Servs. v. Rose K., 196 Wis. 2d 171, 537 N.W.2d 142 (Ct. App. 1995), GAL conflict where county child-support interests opposed the children's best interests
- In re Tamara L.P., 177 Wis. 2d 770, 503 N.W.2d 333 (Ct. App. 1993), former-client conflict barring prior counsel from later serving as GAL
- Hollister v. Hollister, 173 Wis. 2d 413, 496 N.W.2d 642 (Ct. App. 1992), GAL may not be called as a witness
Other opinions cited:
- ABA Formal Ethics Op. 497 (2021): what constitutes materially adverse interests
- Wisconsin Formal Ethics Op. EF-10-03; E-09-04: prospective-client conflicts and former GALs
See also
- ABA Formal Op. 497: Conflicts Involving Materially Adverse Interests
- WI Ethics Op. EF-25-01: Lawyers as Witnesses
- WI Ethics Op. EF-25-03: Representing a Criminal Defendant with Diminished Capacity
Source
- Landing page: https://www.wisbar.org/formembers/ethics/pages/formal-opinions.aspx
- Original PDF: https://www.wisbar.org/formembers/ethics/Ethics%20Opinions/EF-23-02%20GAL%20Conflict.pdf
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