Can a county attorney who occasionally advises the county Department of Social Services serve as guardian ad litem for abused or neglected children whose interests may conflict with DSS?

Plain-English summary

Attorney C was county attorney for County X, representing the county at the direction of the Board of Commissioners. He was occasionally asked informal questions by the county Department of Social Services' director, though he was not its attorney of record and did not appear for DSS in proceedings; the county funded DSS's operations. Attorney C considered serving as appointed guardian ad litem in cases involving abused and neglected children, where DSS's interests might conflict with the children's. The inquiry asked whether he could serve as guardian ad litem while serving as county attorney.

The opinion concluded that he could not. Although Attorney C did not provide extensive legal services for DSS, he did advise it from time to time as county attorney, so he had a conflict of interest preventing him from serving as guardian ad litem in any proceeding in which DSS is or may be involved (Rule 5.1; see also CPR 171). He also could not obtain valid, informed consent from the two clients involved, so the representation was barred.

Currency note

This opinion was issued in 1986, before the North Carolina State Bar's adoption of the 2003 revisions to the Rules of Professional Conduct. The provision it applies (Rule 5.1 on conflicts of interest) has since been renumbered and revised (the corresponding Model Rule is 1.7). Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Can a county attorney also be guardian ad litem for abused children?

A: Not where DSS may be involved. The opinion concluded the county attorney has a conflict preventing him from serving as guardian ad litem in any proceeding in which DSS is or may be involved (Rule 5.1).

Q: Does it matter that he only advises DSS informally and is not its attorney of record?

A: No. The opinion concluded that even occasional advice to DSS as county attorney created the disqualifying conflict.

Q: Could the conflict be cured by the clients' consent?

A: No. The opinion concluded he could not obtain valid, informed consent from the two clients involved, so the representation was barred.

Background and rules framework

The opinion applied North Carolina Rule 5.1 on conflicts of interest (corresponding to Model Rule 1.7) and relied on the earlier CPR 171. The analysis turned on the county attorney's advisory relationship with DSS, which placed him in conflict with children whose interests might be adverse to DSS, a conflict consent could not cure.

Citations and references

Rules of Professional Conduct:

• North Carolina Rule 5.1 (conflicts of interest)
• MR 1.7 (concurrent conflicts of interest)

Other opinions cited:

• CPR 171 (North Carolina)

See also

• NC Ethics Op. RPC 22: estate administratrix in two capacities
• NC Ethics Op. RPC 52: private employment of appointed counsel

Source

• Landing page: https://www.ncbar.gov/for-lawyers/ethics-and-governing-rules/ethics-opinions/opinions/rpc-14/

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Inquiry:

Attorney C is county attorney for County X. As county attorney, C represents the interests of the county at the direction of the five -member Board of Commissioners, who employ him at their pleasure. Occasionally, Attorney C is asked informal questions by County X's Department of Social Services' director. Attorney C is not attorney of record for the Department of Social Services. Nor does he participate as its attorney in any proceedings officially involving the Department of Social Services. However, County X, of course, does provide funding for the operation of the Department of Social Services.

Attorney C considered becoming an appointed Guardian Ad Litem in cases involving abused and neglected children. In some of these cases, the interests of the Department of Social Services may appear to conflict with those of the abused or neglected children. May Attorney C ethically serve as Guardian Ad Litem for abused and neglected children while serving as county attorney for County X?

Opinion:

No. Although Attorney C does not provide extensive legal services for the Department of Social Services, he does advise them from time to time in his capacity as county attorney. Therefore, he does have a conflict of interest preventing him from serving as Guardian Ad Litem in any proceeding in which the Department of Social Services is or may be involved. See Rule 5.1; see also CPR 171. Nor can he obtain valid, informed consent from the two clients involved. Thus, the representation is barred.