Ethics Opinions

Opinion 2009-01

Summary:  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.

Discussion: We 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).

 

            Rule 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 provided:

 

(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. 

 

Thus, it 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.

 

            MRPC 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 interests, unless:

 

(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.

 

            An 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.

 

            We 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 status.

 

This opinion was approved for publication by the Massachusetts Bar Association’s House of Delegates on January 15, 2009.

 

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