Can a lawyer who sometimes represents guardians ad litem also represent clients whose interests are adverse to a guardian ad litem?

Plain-English summary

The inquiry concerned possible conflicts in the lawyer's representation of guardians ad litem and of clients in cases where a guardian ad litem was adverse to the client's interest. The committee was of the opinion that whether a conflict existed would depend on whether the lawyer was representing a guardian ad litem at the same time as a client adverse to that guardian ad litem.

The committee was further of the opinion that the lawyer's consent form was inaccurate, because there is no requirement of waiver if the guardian ad litem is only a former client and the matters are unrelated. The committee was also concerned with the last sentence of the form, taking the view that it is as much the attorney's responsibility, if not more, as it is the client's to raise the issue of conflicts of interest. Finally, the lawyer had said he wanted the opinion to keep in his files in case he ever needed to present the issue to a court; the committee advised that its opinions are designed for the lawyer's guidance and not for use as legal authority, except perhaps to demonstrate good faith, should that be an issue.

Currency note

This opinion was issued in 1991, before the Washington State Bar Association's adoption of the 2006 revisions to the Washington 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 Treat this page as historical context, not current guidance.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: When does representing a GAL and an adverse client become a conflict?

A: Under this 1991 opinion, when the lawyer is representing a guardian ad litem at the same time as a client adverse to that guardian ad litem; the committee made the answer turn on concurrent representation.

Q: Is a waiver needed if the GAL was only a former, unrelated client?

A: No. The committee was of the opinion that no waiver is required where the guardian ad litem is only a former client and the matters are unrelated.

Q: Whose job is it to flag the conflict, the lawyer's or the client's?

A: The committee was of the opinion that it is as much the attorney's responsibility, if not more, as it is the client's to raise the issue of conflicts of interest.

Background and rules framework

At the time of this opinion, Washington's RPC 1.7 governed conflicts of interest, the subject the Model Rules place in Rule 1.7. The committee distinguished concurrent representation, which can create a conflict, from a prior unrelated representation of a former-client guardian ad litem, which does not require a waiver.

Citations and references

Rules of Professional Conduct:

• ABA Model Rule 1.7 (conflicts of interest)
• Washington RPC 1.7

See also

• WA Ethics Op. 1397: Ex Parte Contact With a Guardian ad Litem
• WA Ethics Op. 1407: Representing the State and Clients Against the State

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=486

Original opinion text

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

The Committee reviewed your inquiry concerning possible conflicts of interest in your representation of guardians ad litem and of clients in cases where a guardian ad litem was adverse to your client's interest. The Committee was of the opinion that whether a conflict existed would depend on whether you were representing a guardian ad litem at the same time you were representing a client adverse to that guardian ad litem.

Further, the Committee was of the opinion that your consent form as presented is inaccurate in that there is no requirement of waiver if the guardian ad litem is only a former client and the matters are unrelated. Further, the Committee was concerned with the last sentence on your form because, in the opinion of the Committee, it is as much the attorney's responsibility, if not more, as it is the client's to raise the issue of conflicts of interest. Finally, you indicate that you want the Committee's opinion to "keep in your files" in case you ever need to present this issue to a court. The Committee asked me to advise you that opinions of the Committee are designed for your guidance and not for use a legal authority, except perhaps to demonstrate your good faith, should that be an issue.