June 19, 2019 – Guardians ad litem represent the best interests of an individual rather than the individual – so what is the best way to determine whether your GAL work may create a conflict with your other work?

Question

I am a solo practitioner, and I do a lot of guardian ad litem (GAL) work in family cases.

I was offered a part-time job prosecuting child support enforcement actions for the county in which I live. I would like to take the job, but I am concerned about how it may affect my GAL work. I don’t really have a regular client when I act as a GAL, so I am not sure how to analyze whether I would have a conflict if I act as GAL in a case where the child support may be owed to the county.

How do I analyze conflicts when working acting as both a GAL and child support attorney?

Answer

This question was addressed in La Crosse County Dep't of Soc. Servs. v. Rose K,¹ in which a lawyer had a contract with La Crosse County to prosecute child support enforcement cases, and also had a private practice that involved GAL work.

Howard and Rose had five nonmarital children, and the lawyer had prosecuted several paternity actions against Howard, which resulted in Howard being ordered to pay child support to Rose. Because Rose received Aid to Families with Dependent Children (AFDC), her child support payments were assigned to the La Crosse County Child Support Agency.

In 1994, a social worker filed a petition alleging that one of Rose’s children was in need of protection and services, and that was eventually expanded to include all the children. The same lawyer who had prosecuted the paternity actions against Howard was appointed GAL for all the children.

Rose asked the trial court to disqualify the GAL, asserting conflicts arising from the duties of GAL and child support attorney for the county, but the trial court denied the motion. The court of appeals reversed, finding that the GAL had a conflict of interest under SCR 20:1.7², which states in the relevant part:

(a) Except as provided in par. (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if:

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(2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.

In describing the conflict, the court of appeals stated;

Attorney Machi's duties include collecting support from Howard, and prosecuting and ultimately attempting to incarcerate him if he fails to pay support. The money that Howard pays to the state is money that is no longer available for him to provide to his children. Attorney Machi decides when to commence a support action against Howard. Her roles present the following conflicts: Should Attorney Machi commence a support action and satisfy her client, the state, and a person with whom she has a contractual relationship, La Crosse County? Or should she not do so because her other clients, Howard's children, could use the extra money for an item not provided through AFDC payments? If Howard fails to pay what is ordered, should Attorney Machi attempt to incarcerate him, thus depriving the children of a father? These conflicts are real, and they place Attorney Machi in a position that no attorney should face: deciding which of two clients she will serve.

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Attorney Machi has a duty to her clients, Rose and Howard's children. That representation is materially limited by Attorney Machi's responsibilities to another client, the state, and a third party, La Crosse County. We therefore conclude that the trial court erroneously exercised its discretion by denying Rose's request to disqualify Attorney Machi from her representation of Rose and Howard's children. Accordingly, we reverse and order the trial court to grant Rose's request to disqualify Attorney Machi.

Cases addressing conflicts of GALs are rare, so lawyers who serve as GALs should be aware of those that exist.³ There are several important points to take away from the Rose K. decision:

First, the court engaged in straightforward conflict analysis under SCR 20:1.7. That rule governs concurrent conflicts, so there is nothing noteworthy about that. What is noteworthy is that the court analyzed the conflict as if the GAL was representing the children, and in fact refers to the children as “her clients.” GALs represent the best interests of an individual rather than the individual⁴, but after acknowledging this fact, the court, in footnote two, states that conflicts will be analyzed as if the GAL represents the individual.⁵

Second, the court found that it was appropriate for the mother to raise the issue of the GAL’s conflict. While the court did not use the word “standing,” the question of who has standing to complain of a conflict can become an issue in disqualification motions,⁶ but here the court had little trouble in determining that the mother had standing to complain of the conflict.

The unique role of GALs can pose challenges in applying the Rules, but the Rose K. case provides the helpful guidance that concurrent conflicts for GALS should be analyzed as if the GAL was representing the individual.

Endnotes

¹ 196 Wis.2d 171, 178, 537 N.W.2d 142, 145 (Ct.App.1995).

² The court of appeals referred to the then current SCR 20:1.7(b), which is substantially similar to the current SCR 20:1.7(a)(2).

³ See also In re Tamara L.P., 177 Wis.2d 770, 503 N.W.2d 333 (Ct.App.1993) and Riemer v. Riemer, 85 Wis.2d 375, 270 N.W.2d 93 (Ct.App. 1978).

⁴ See SCR 20:4.5.

⁵ This is consistent with Disciplinary Proceedings against Kinast, 192 Wis.2d 36, 530 N.W.2d 387 (1992), where the court found that, for purposes of SCR 20:4.2, a GAL represents the individual.

⁶ See, e.g., Foley-Ciccantelli v. Bishop’s Grove Condominium Ass’n Inc., 2011 WI 36, 333 Wis. 2d 402, 797 N.W.2d 789.