Can a lawyer who represents the guardian ad litem for abused children also contract to represent the state DSS at the review hearings in those cases?

Plain-English summary

An attorney handled child-abuse cases in his county, where he regularly represented the guardian ad litem appointed for the abused children. South Carolina DSS, which contracts with one attorney in each county (at $100 per case) to bring petitions for the periodic review hearings the law requires after a child is removed from a home, asked him to take that contract. The inquiry asked whether he could represent the children at the initial stages of cases and also accept the contract to represent S.C. DSS at the review hearings.

The committee concluded that the same lawyer could not represent both a child (or the child's guardian ad litem) and S.C. DSS in the same proceeding. It read Section 20-7-110(a) of the South Carolina Code to require that counsel for the child never be the same as counsel for any governmental or social agency involved in the proceeding, and it treated the duty to the child as continuing through every stage, including the review hearings, until the matter is finally resolved. Because S.C. DSS and the guardian ad litem may take opposing positions at review (the opinion gave the example of DSS arguing for continued foster care while the guardian, through counsel, argues for return to the natural parents), the committee found that one lawyer could not effectively serve both at the same time.

The committee drew a line based on prior involvement. If the lawyer had not represented the guardian ad litem in the specific case before the court, even though he generally represented guardians ad litem, no conflict arose from his representing S.C. DSS at that case's review hearing, because the guardian would have separate counsel of its own. The committee also observed that the county Department of Social Services, against which the lawyer takes a quasi-adversarial position in representing the children, and S.C. DSS are not identical agencies.

Currency note

This opinion was issued in 1989, before the South Carolina Bar's adoption of the 2005 revisions to the Rules of Professional Conduct. 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 Treat this page as historical context, not current guidance.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 one lawyer represent both the child's guardian ad litem and S.C. DSS in the same child-abuse case?

A: No. The committee concluded that counsel for the child or guardian ad litem could not also be counsel for S.C. DSS in the same proceeding, reading Section 20-7-110(a) to bar that overlap and finding that the two clients could take opposing positions at review.

Q: Does the conflict end once the initial hearing is over?

A: No. The committee treated the representation of the child as continuing through the review hearings until the matter is finally resolved, so the lawyer could not take on an adverse party at any stage of the same case.

Q: Could the lawyer ever represent S.C. DSS at a review hearing?

A: Yes. If he had not represented the guardian ad litem in that specific case, the committee found no conflict in his representing S.C. DSS at that case's review hearing, because the guardian would have its own separate counsel.

Background and rules framework

The opinion analyzed a concurrent-representation conflict, the subject now governed by South Carolina Rule of Professional Conduct 1.7 (Model Rule 1.7). It was issued in 1989, before South Carolina adopted the Rules of Professional Conduct, so the committee framed the analysis through the child-protection statutes rather than a numbered conduct rule, principally Section 20-7-110(a) of the South Carolina Code, which directs that counsel for the child not be the same as counsel for any parent, guardian, or governmental or social agency in the proceeding.

Citations and references

Rules of Professional Conduct:

• The concurrent-conflict question the opinion resolved is now governed by South Carolina RPC 1.7 / Model Rule 1.7 (conflicts involving the concurrent representation of clients with adverse positions). The 1989 opinion predates South Carolina's Rules of Professional Conduct and does not cite a numbered rule; it analyzed the issue under the child-protection statutes below.

Statutes:

• South Carolina Code Ann. Section 20-7-110(a) (1976): in child abuse and neglect proceedings, counsel for the child shall in no case be the same as counsel for the parent, guardian, or any governmental or social agency involved.
• South Carolina Code Ann. Section 20-7-122 (1976): duties of the guardian ad litem.
• South Carolina Code Ann. Section 20-7-124 (1976): the guardian ad litem's obligation to the court is a continuing one.
• South Carolina Code Ann. Section 20-7-766 (1976): periodic review of a child removed from the home.

See also

• SC Bar Ethics Op. 90-09: Public defender board member's conflict
• SC Bar Ethics Op. 90-05: Witness-lawyer representing the client on appeal

Source

• Landing page: https://www.scbar.org/for-lawyers/quicklinks/legal-resources/ethics-advisory-opinions/ethics-advisory-opinion-89-01/

Original opinion text

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

An attorney should not enter into a contract to represent DSS at any review hearing involving a child which the attorney represented at the initial stages of the case. It is proper, however, for an attorney to represent S.C.

DSS at a review hearing concerning a case in which the attorney has not been involved. Thus, attorneys can generally represent children at initial stages of certain child abuse cases and represent DSS at review hearings concerning child abuse cases in which they have not been involved. Such action by an attorney should not create a dual representation problem since the County Department of Social Services, against which the attorney takes a quasi-adversarial position in representing the children, and S.C. DSS are not identical agencies.

Question:

Is it proper for the attorney to represent the children at the initial stages of child abuse cases if he accepts the contract to represent S.C. DSS at the review hearings?

Opinion:

Anytime that the court removes a child from a home, the law requires that the court conduct a review at least every twelve months. Although it is usually initiated by the protective services agency known as the South Carolina Department of Social Services ("S.C. DSS:), the review may be initiated by any interested person. South Carolina Code Ann. Section 20-7-766 (1976).

The practice of S.C. DSS is to enter into a contract with an attorney in each county to bring the petitions for review hearings. The attorney is paid $100.00 per case.

An attorney is involved in child abuse cases with the ABC County Department of Social Services. The attorney regularly represents the Guardian ad Litem for the abused children pursuant to S.C. Code Ann. Section 20-7-110 (1976). S.C. DSS contacts the attorney in ABC County and asks him to represent S.C. DSS in the review hearings.

The law of this state is written to ensure that a child involved in a child abuse case has legal counsel who represents only that child's interest. South Carolina Code Ann. Section 20-7-110(a) (1976), provides that in all child abuse and neglect proceedings:

Children shall be appointed legal counsel and a guardian ad litem by the Family Court. i Counsel for the child shall in no case be the same as counsel for the parent, guardian or other person subject to the proceeding or any governmental or social agency involved in the proceeding.

As a result of the above Code section, an attorney could not represent the child and S.C. DSS in a child abuse proceeding. This rule applies to all stages of child abuse proceedings since the representation of a child does not end after the initial hearing but continues until the matter is sufficiently resolved. Therefore, at no time during the proceedings could the attorney agree to represent another party involved in the action in addition to the child.

The Code does not address whether or not the attorney for the guardian ad litem can also represent another party, except to the extent that it disallows the attorney for the guardian ad litem being the same as the attorney for the child. However, the guardian ad litem has very specific duties and obligations in child abuse proceedings, and the attorney for the guardian ad litem should not represent any other person's interest at the same time as representing the guardian ad litem's interest. The guardian ad litem serves as a court appointed special advocate for the child and one of the responsibilities, and perhaps the most important, is to represent the best interests of the child. Section 20-7-122 (1976).

Section 29-7-122 requires that the guardian ad litem continue to protect and promote the best interests of the child "until formally relieved of the responsibility by the Family Court." Similarly, Section 20-7-124 of the Code provides that "the obligation of the guardian ad litem to the court is a continuing one." The law further provides that the guardian ad litem is entitled to legal counsel pursuant to Section 20-7-110.

Once the attorney takes on representation of the guardian ad litem he is under a duty to advise such guardian regarding the best interests of the child until the matter is fully and finally resolved. The guardian ad litem's role entails the responsibilities and duties set forth in Section 20-7-122 which include (i) maintaining accurate written case records, (ii) providing written reports, consistent with the rules of evidence and rules of court, (iii) monitoring compliance with Family Court orders and (iv) making necessary motions.

Therefore, once the attorney agrees to represent the guardian ad litem, he is obligated to advise the guardian ad litem as to motions, requests, and the rules of court with regard thereto, necessary to represent the best interests of the child. As with any client, this obligation is not fulfilled, and the representation does not end, until the court makes a final decision as to the outcome of the matter. The review hearings in child abuse cases are a part of and generally the last step in, the legal proceedings and the child must have an attorney and a guardian ad litem present. In addition, the guardian ad litem is entitled to have legal counsel present.

In order for the guardian ad litem to adequately fulfill his duties, responsibilities and obligations set forth in Sections 20-7-122 and 20-7-124, he must continually have the aid and advise of legal counsel. Such legal counsel could not effectively represent the interests of the guardian ad litem and S.C. DSS at the same time, whether it be during the initial stages of a matter or during the review hearings.

Code Section 20-7-766, which governs the review proceedings, allows S.C. DSS, or any interested party, including the guardian ad litem, to file a petition for review. If such a review is requested by S.C. DSS, the agency may submit to the court affidavits from the natural parents, the child's legal counsel and the guardian ad litem. It is conceivable that S.C. DSS and the guardian ad litem will not agree as to the outcome of the matter. For instance, S.C. DSS may take the position that the child should remain in foster care, while the guardian ad litem, through his attorney, may take the position that the child should be returned to his or her natural parents. Thus, a conflict of interest arises if the attorney for S.C. DSS and the guardian ad litem are one and the same.

If the attorney has not represented the guardian ad litem in the specific case before the court (although he or she generally represents guardians ad litem) it would not create a conflict of interest if the attorney agreed to represent S.C. DSS at a review hearing. In such a case the guardian ad litem would have its own counsel to aid him or her in representing the best interests of the child. The propensity for conflict and inadequate representation is not present in a case where both the guardian ad litem and S.C. DSS are represented by separate legal counsel.