November 19, 1982
A lawyer who formerly served as guardian ad litem for a husband in guardianship proceedings initiated by the wife may not subsequently represent the wife in matters related to assets of the ward.
References: MCPR Canon 9, DR 9-101(B); CI-492, CI-364, CI-524, CI-518.
A lawyer was appointed to act as guardian ad litem for a husband in a conservatorship action initiated by the wife. In that proceeding, the wife requested the court to appoint her as conservator and guardian for the husband. Before the hearing on the petition, the lawyer concluded, based upon interviews with the husband, that the conservatorship and guardianship were appropriate. Further, based upon interviews with petitioning wife and family members, it was the lawyer's conclusion that the wife was an appropriate person to be the guardian and conservator. The probate court appointed the wife as guardian and conservator, and the lawyer was discharged as guardian ad litem.
Thereafter, the wife contacted the lawyer for representation in a matter involving the sale by land contract of property owned jointly by the husband and wife. Before the guardianship, the husband and wife had sold the property on land contract to third party purchasers. The wife now proposes to purchase the husband's half of the vendor's interest in the land contract, for which interest she has stated she is willing to pay fair market value, depositing the consideration in an account for the husband's benefit. The wife wishes to obtain the court approval of the transaction.
It is the opinion of the committee that the lawyer's representation of wife is prohibited. Such representation would constitute representation of a current client against a former client. Such representation is prohibited when the matter involved in the new representation derives from the matter involved in the representation of the former client. This committee has set forth guidelines concerning the same in CI-492, CI-364, CI-524 and CI-518.
The foregoing conclusion is based upon the premise that the relationship between guardian ad litem and ward is equivalent to the relationship between lawyer and client. While no opinions have been found equating the fiduciary guardian/ward relationship with the lawyer/client relationship, the similarities are obvious and the conclusion is a logical one. The fiduciary obligations of the guardian ad litem to the ward are at least as rigorous as the professional responsibility of lawyer to client. Further, when the guardian has both fiduciary and professional responsibilities to the client, ethics rules apply.
MCPR Canon 9 and MCPR DR 9-101(B) further prohibit actions which give even the appearance of impropriety. The above fact situation does have that appearance, as the lawyer is in a position of using potential confidences and communications from former client husband to the benefit of proposed client wife. This is further aggravated by the potential that the transaction may not be in the best interest of husband.