March 1, 1996
A lawyer is not prohibited from accepting guardian ad litem appointments to represent abused and neglected children in protective proceedings merely because the lawyer's spouse is employed at a county youth home and the lawyer's parent-in-law is an investigator for the county prosecutor's office, where neither relative would be a witness in or have any other impact upon the lawyer's cases.
References: MRPC 1.2(a), 1.7(b), 1.8(i), 1.14(a); JI-61; MCR 2.003(B)(6).
A lawyer's spouse serves as coordinator of security at a county youth home. The youth home deals primarily with youths who are involved in delinquency proceedings. Any abused or neglected child would be there only for a short period of time until foster care or other suitable custodial arrangements could be made. As coordinator of security, the spouse has little involvement with the juvenile court other than occasionally transporting youths to the court.
The lawyer's parent-in-law is an investigator for the prosecutor's office. While the prosecutor's office does represent the Department of Social Services which initiates and advocates abuse and neglect cases, case workers for the Department of Social Services are involved in investigation of potential abuse and neglect cases instead of the prosecution investigators.
The lawyer inquires whether any conflicts of interest or other professional prohibitions would limit the lawyer's ability to be appointed as guardian ad litem by a juvenile court judge to represent abused and neglected children in protective proceedings. Neither the spouse nor the parent-in-law are involved as witnesses or otherwise in protective proceedings.
No rule of professional conduct or formal or informal opinion of this Committee addresses this problem directly. When appointed as a lawyer to represent an abused and neglected child as guardian ad litem, the professional obligations of the lawyer are to serve the best interests of the child and not that of the court, the prosecutor's office, or the Department of Social Services. MRPC 1.2(a), 1.7(b) and 1.14(a). While a lawyer appointed as guardian ad litem for the child may commonly agree with the litigation position advocated by the Department of Social Services, this is only the case where the lawyer has made an independent professional judgment about the matter.
Absent client consent after consultation, MRPC 1.8(i) precludes a husband and wife who are both lawyers from representing adverse interests. This rule makes it clear that if spouses are not directly involved as adversaries in a case, one spouse may represent a client against an opponent who is represented by another member of a law firm in which the first lawyer's spouse is a member. See also, R-3 which holds that a lawyer's spouse may represent clients whose positions are adverse if the clients are informed and consent to the relationship. In RI-12, no conflict of interest was found when a prosecutor practiced in a district court where that lawyer's spouse served as district court administrator, so long as no favoritism was provided in the scheduling of cases or other interpretations of administrative procedures. The opinion noted that this potential ethical problem could be avoided by the administrator's duties being conducted pursuant to neutral and ascertainable administrative procedures that avoided any favoritism to the prosecutor/spouse over a criminal defendant. RI-228 concluded that a lawyer whose spouse is employed by the prosecutor's office is not per se prohibited from representing a criminal defendant so long as the defendant consents to the representation after consultation and the lawyer continues to monitor potential conflicts of interest throughout the representation.
Thus, by analogy, it would appear that the present situation involves no problem where the inquirer's spouse is neither representing an opponent nor likely to be involved as a witness or source of information concerning the case.
Other analogies make it even clearer that there are no ethical problems in the inquirer receiving appointments in the present situation. MCR 2.003(B)(6) states:
"A judge is disqualified when the judge cannot impartially hear a case, including but not limited to instances in which:
". . .
"(6) The judge or the judge's spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person;
"(a) is a party to the proceeding, or an officer, director or trustee of a party;
"(b) is acting as a lawyer in the proceeding;
"(c) is known by the judge to have a more than de minimis interest that could be substantially affected by the proceeding;
"(d) is to the judge's knowledge likely to be a material witness in the proceeding . . . ."
In JI-61, a judge was not disqualified, absent actual bias, from presiding in a matter in which a part-time police officer might be called as a witness when that police officer was also a probation officer with the judge's court.
In the present case, the inquirer's spouse does not work for the Department of Social Services or for the prosecutor's office. The inquirer's parent-in-law works for the prosecutor's office but does not investigate nor testify in abuse and neglect cases. Because neither of the inquirer's relatives is in a sensitive position that could or likely would have any impact upon an abuse and neglect case, not only is there no conflict of interest in the lawyer serving as guardian ad litem in abuse and neglect cases, but there is not even an ethical requirement for disclosure.
The familial relationships of the lawyer do not prevent the lawyer from accepting appointments as guardian ad litem.