Jan. 5, 2009 – A new opinion from the State Bar’s Professional Ethics Committee defines the nature of a lawyer’s participation that prevents an attorney from serving as a guardian ad litem in a case with which he or she had previously been involved as a family court commissioner.

The committee focused on whether the lawyer, as a family court commissioner, took steps that affected the rights of the litigants or the merits of the action. By this standard, a commissioner who signs an order to show cause for contempt – even without ever meeting the parties and without holding the hearing – is ethically prohibited from later representing the interests of the children in the case.

In a related question, the committee clarified when a case constitutes the same “matter” as another to potentially prevent a lawyer’s involvement. Specifically, a matter may continue in a different form, such as a different case with a different caption, if the parties are the same, the matter involves largely the same facts and issues.

‘Personally and substantially’

The committee was asked to address how a lawyer’s employment as a family court commissioner might affect her subsequent work as a guardian ad litem in the same county, given that the lawyer might become involved in the same matter in different capacities.

If the lawyer, acting as a family court commissioner, had only “remote or incidental administrative involvement” with a case, he or she would not be disqualified, the committee found. For example, the committee said the lawyer might approve the assignment of a new case to another commissioner pursuant to a predetermined rotation schedule.

But the committee distinguished such “remote or incidental administrative” acts from a commissioner’s substantive discretionary acts by referring to the phrase “personally and substantially,” which describes a lawyer’s disqualifying participation under SCR 20:1.12(a). From secondary sources and ethics opinions issued in other states, the committee determined that “any participation in a matter that reaches the merits or directly affects the rights of the parties constitutes personal and substantial participation within the meaning of SCR 20:1.12(a).”

“Thus, the approval of stipulated agreements or the issuance of orders necessarily directly affects the parties and/or merits, and therefore would constitute personal and substantial participation in a matter,” the committee wrote. Broadening the scope, the committee said that SCR 20:1.12(a) is not limited to certain specific actions such as approving stipulations. “Any participation in a matter in a substantive way, such as presiding over a settlement conference, will constitute personal and substantial participation in a matter, even if no orders are issued,” the committee wrote.

The committee explained that disqualification of a lawyer as an advocate for even “slight involvement” in a case he or she had as a commissioner safeguards the integrity of the legal profession.

Additionally, the committee said that parties cannot agree to waive this disqualification. However, SCR 20:1.12(c) does permit a firm that includes a former adjudicative officer or third-party neutral to defeat the imputation of a conflict to its other lawyers by timely screening, ensuring that the screened lawyer receives no portion of the fee, and promptly providing written notice to the parties and any appropriate tribunal.

Same ‘matter’

The committee considered whether a commissioner involved in determination of a child’s need for protective services would be disqualified from participating as a guardian ad litem in the termination of parental rights when parties of the two cases overlap. For example, a father may not have paid child support to the mother of one child while the protective services case involves the same father, but a different mother of a different child.

To resolve this question, the committee looked at the comment to SCR 20:1.11(e) which advises a lawyer to consider “the extent to which the matters involve the same basic facts, the same or related parties, and the time elapsed.”

But the committee also examined other states’ ethics opinions and case law to determine that, “While different cases can be the same matter for purposes of SCR 20:1.12(a), the mere fact that cases are related does not, without more, mean that the separate cases are the same matter.” Different cases are considered the same matter when they involve the same parties and largely the same facts and issues, the committee concluded.

“Applying the analysis to the facts presented (a child support enforcement action and subsequent [protective services] action involving the same father but different mothers and children), the Committee believes that the [protective services] action would likely not be the same ‘matter’ as the child support enforcement action,” the committee wrote, cautioning that its view could change according to the particular facts of each case.