February 7, 1995
A lawyer who had been appointed guardian ad litem by probate court and in that capacity rendered an independent report concerning the care of the ward, may not subsequently represent another family member who was not reviewed in the report in an effort to adopt the ward.
References: MRPC 1.7, 1.9, 1.11; RI-213; CI-1100; Op 38.
A lawyer was appointed guardian ad litem by the probate court. In that capacity, the lawyer rendered an independent report concerning care of the ward and the persons best suited to provide that care. The lawyer has now been asked to represent a family member in adopting the ward. The family member was not one of the persons reviewed in the report of the guardian ad litem. The lawyer asks whether the representation may be undertaken.
MRPC 1.11 (a) and (b) state:
"(a)Except as law may otherwise expressly permit, a lawyer shall not represent a private client in connection with a matter in which the lawyer participated personally and substantially as a public officer or employee, unless the appropriate government agency consents after consultation. No lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in such a matter, unless:
"(1) the disqualified lawyer is screened from any participation in the matter and is apportioned no part of the fee therefrom; and
"(2) written notice is promptly given to the appropriate government agency to enable it to ascertain compliance with the provisions of this rule.
"(b)Except as law may otherwise expressly permit, a lawyer having information that the lawyer knows is confidential government information about a person, acquired when the lawyer was a public officer or employee, may not represent a private client whose interests are adverse to that person in a matter in which the information could be used to the material disadvantage of that person. A firm with which that lawyer is associated may undertake or continue representation in the matter only if the disqualified lawyer is screened from any participation in the matter and is apportioned no part of the fee therefrom."
MRPC 1.7(b) states:
"(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
"(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."
In RI-213, the Committee determined that a lawyer holding a county contract for appointment as public guardian or conservator may not agree also to act as legal counsel in a matter in which a ward for whom the lawyer had been appointed as guardian or conservator may have an interest which falls outside the fiduciary duties required of the lawyer pursuant to the contract of appointment. Analogous to the current circumstances are two opinions, CI-119 and Op 38 which precluded subsequent private representation by an attorney mediator and a probate judge with reference to matters in which they previously acted in their official capacities.
While acting as guardian ad litem for the ward, the inquirer served on an appointment by a probate court. On that basis, the inquirer would have acted substantially as a public officer and the prospective representation would be precluded unless the appointing judge consented pursuant to MRPC 1.11(a).
It is difficult to imagine that the inquirer would not have acquired confidential information while acting as guardian ad litem. To the extent that such information has been gained, it could not now be used as lawyer acting for and on behalf of the prospective client. See MRPC 1.8(b), 1.11(b), 1.6.
The independent report made by the inquirer while acting in a fiduciary capacity as guardian ad litem for the ward, by necessity, concluded that the best suited person to provide care for the ward would be someone other than the family member who now proposed to adopt and whom the lawyer proposes to represent. The prospective client was not reviewed and could not have been the person named in the report as suitable to care for the ward. Accordingly, the legal position that the inquirer is asked to take in representing the prospective client is different from the conclusion in the inquirer's own report. Even if the prospective client's position is not hostile to the best interest of the ward, it would necessarily be inconsistent with and adverse to the lawyer's prior recommendation. See MRPC 1.7(b).
Accordingly, all the circumstances would seem to preclude the prospective representation under the facts stated.