An attorney may not accept a second appointment
as guardian ad litem of an incompetent if the appointment would require the attorney
to approve prior payments made by the incompetent’s estate for previous
services rendered by the attorney as guardian ad litem. The availability of
other arrangements for reviewing the attorney’s prior invoices, however, may
make it possible for the attorney to accept the appointment.
Facts: Attorney was appointed as guardian ad
litem for an incompetent ward in connection with the final account of the
ward’s temporary guardian. Eventually,
the attorney was paid for his services as guardian ad litem by the ward’s
permanent guardian from the guardianship estate. Subsequently, the ward’s permanent guardian
presented his accounts for allowance and the attorney was once again appointed
as guardian ad litem for the ward. The
attorney raises the question whether the necessity to review his own prior work
as guardian requires him to decline the appointment.
understand that the role of an attorney who is appointed as a guardian ad litem
under G. L. c. 206, §24 in accounting matters is different from the
investigatory role contemplated by an appointment under G. L. c. 215, §56A. Section 24 expressly states that the guardian
ad litem is to “represent” the interests of the person, or class of persons,
for whom he or she is appointed. Though
a guardian need not be a lawyer, the representation of others in a legal
proceeding is typical lawyer’s work and, when performed by a lawyer, is subject
to the Massachusetts Rules of Professional Conduct (MRPC).
5.7 of the MRPC provides as follows:
(a) A lawyer shall be subject to the Rules
of Professional Conduct with respect to the provision of the law-related
services, as defined in Paragraph (b), if the law-related services are
(1) by a lawyer in circumstances that are
not distinct from lawyer’s provision of legal services to clients; or
(2) by a separate entity controlled by the lawyer
individually or with others if the lawyer fails to take reasonable measures to
assure that a person obtaining the law-related services knows that the services
of the separate entity are not legal services and that the protections of the
client-lawyer relationship do not exist.
(b) The term “law-related services” denotes
services that might reasonably be performed in conjunction with and in
substance are related to the provision of legal services, and that are not
prohibited as unauthorized practice of law when provided by a nonlawyer.
is clear when an attorney is appointed as a guardian ad litem to represent the
interests of an incompetent ward in an accounting matter, the attorney is subject
to the MRPC with respect to that representation in the same manner and to the
same extent as if the attorney was engaged to represent a private client to
review the account.
Rule 1.7(b) provides that:
A lawyer shall not represent a client if the
representation of that client may be materially limited by the lawyer’s
responsibilities to another client or to a third person, or by the lawyer’s own
(1) the lawyer
reasonably believes the representation will not be adversely affected; and
(2) the client
consults after consultation. When
representation of multiple clients in a single matter is undertaken, the
consultation shall include explanation of the implications of the common
representation and the advantages and risks involved.
incompetent individual or a class of unborn or unascertained persons for whom a
guardian ad litem is appointed cannot, of course, waive the conflict that
reviewing the guardian ad litem’s own bills would entail. Therefore, if the payment by a fiduciary of the
invoice is included among the items being submitted for approval of the Court,
it is clearly mandatory under Rule 1.7(b) that the attorney decline the
appointment absent some other arrangement to protect the interests of the ward
or the unborn or unascertained persons with respect to that prior invoice.
understand that one of the reasons that judges often go back to the same
attorney who acted as a guardian ad litem in a previous matter involving a
guardianship or with respect to prior accounts of an estate or trust is that
they believe it is more economical for the ward or for the estate or trust to
appoint someone who is already familiar with the circumstances of the
case. With that in mind, we think it may
be possible under the Rules for an attorney to accept a repeat engagement as a
guardian ad litem provided the attorney brings to the Court’s attention the
fact that he or she will not review any prior invoices of his or hers referred
to in the accounting and that the Court will have to make its own determination
as to the reasonableness of the invoices.
This should be done by motion before the appointment is accepted in
order to give the Court the opportunity of choosing another guardian ad litem
either for the limited purpose of reviewing those invoices or in place of the
attorney with the conflict.
This advice is that of a Committee without official governmental
This opinion was approved for publication by the Massachusetts
Bar Association’s House of Delegates on January 15, 2009.