Can a lawyer who served as a minor's guardian ad litem then represent that minor in the related personal injury lawsuit?

Plain-English summary

A court appointed a local personal injury lawyer as GAL to assess whether a proposed settlement for an injured minor was in the minor's best interest. The GAL reported that the offer was inadequate, and the court did not approve it. The minor, through a next friend, then sued the negligent party, with the suit filed by the same lawyer who had served as GAL. The question was whether it was improper for the former GAL to represent the ward in the subsequent suit.

The opinion noted that the Rules do not specifically address a GAL's duties, but a lawyer-GAL's conduct is governed by the Rules and the GAL assumes additional fiduciary duties to the minor and the court. It reviewed Illinois case law (Millage v. Noble, Baughman v. Baughman, In re Dominique F.) recognizing that a lawyer may serve as both GAL and counsel and, once appointed, stands like any other attorney obligated to pursue the client's best interests (while noting a GAL generally should not collect fees in both capacities).

The opinion concluded there is no specific prohibition preventing the lawyer from acting as GAL and then as the minor's attorney. Drawing on Opinion 90-32, it concluded that merely advising the minor on the adequacy of a settlement does not amount to solicitation, but that if a lawyer appeared to use the GAL responsibility to solicit clients, a Rule 7.3 solicitation question would arise. It concluded that whether a GAL may represent the ward in subsequent related litigation depends on the facts, that the same lawyer continuing can be desirable, and that GALs must give independent advice and remain alert to conduct that appears motivated by self-interest rather than the minor's interest.

Currency note

This opinion was issued in 1995, before Illinois adopted the 2010 Illinois Rules of Professional Conduct. The ISBA Board of Governors affirmed the opinion in May 2010 as generally consistent with the 2010 Rules (referring to Rule 7.3), while noting the specific standards referenced may differ from the 2010 Rules. Subsequent rule amendments or later opinions may have changed the analysis. Verify against current rules before relying on any specific rule or requirement mentioned here.

Common questions

Q: Can a former guardian ad litem represent the same minor in the related lawsuit?

A: The opinion concluded yes, with no specific prohibition, provided the lawyer acted to protect the minor's best interest and did not use the GAL role to solicit the client.

Q: Does advising on a settlement's adequacy count as soliciting future work?

A: The opinion concluded that merely advising the minor on the adequacy of a settlement offer is not solicitation, but using the GAL role to solicit clients would raise a Rule 7.3 question.

Q: Is it ever preferable for the same lawyer to continue?

A: The opinion concluded it can be desirable, since the GAL is already familiar with the minor's situation, but a GAL must give independent advice and avoid conduct that appears motivated by self-interest.

Background and rules framework

The opinion interpreted Rule 7.3 (solicitation of clients; Model Rule 7.3) and discussed the conflict and fiduciary duties a lawyer-GAL owes a minor ward. It relied on Illinois case law on GAL duties, including Millage v. Noble, Baughman v. Baughman, and In re Dominique F.

Citations and references

Rules of Professional Conduct:

• Model Rule 7.3 (solicitation of clients) / Illinois Rule 7.3

Cases:

• Millage v. Noble, 334 Ill. 315, 166 N.E. 50 (1929), duties owed a minor by the court and GAL
• Baughman v. Baughman, 215 Ill. App. 620 (1919), lawyer may serve as both solicitor and GAL
• In re Dominique F., 204 Ill. App. 3d 271, 561 N.E.2d 1240 (1990), GAL stands like any other attorney

Other opinions cited:

• ISBA Advisory Opinion No. 90-32

See also

• ISBA Ethics Op. 96-06: Concurrent Representation of Parents and a Minor Child
• ISBA Ethics Op. 93-09: Representing Both Driver and Passenger

Source

• Landing page: https://www.isba.org/ethics/opinions/9503