UPON THE REQUEST OF A MEMBER OF THE SOUTH CAROLINA BAR, THE ETHICS ADVISORY COMMITTEE HAS RENDERED THIS OPINION ON THE ETHICAL PROPRIETY OF THE INQUIRER鈥橲 CONTEMPLATED CONDUCT. THIS COMMITTEE HAS NO DISCIPLINARY AUTHORITY. LAWYER DISCIPLINE IS ADMINISTERED SOLELY BY THE SOUTH CAROLINA SUPREME COURT THROUGH ITS COMMISSION ON LAWYER CONDUCT.
Ethics Advisory Opinion 04-08
Facts
Lawyer A was the appointed Guardian ad Litem for a two-year-old child in a DSS action against the child鈥檚 parents. This action resulted in an agreement between the child鈥檚 biological parents and paternal grandparents that granted the grandparents custody of the child. The parents were left with supervised visitation with only the two-year-old child. Now biological parents have a new baby, but paternal grandparents believe that they are still abusing drugs. Paternal grandparents approach Lawyer A to represent them in an action against the biological parents for custody of the newborn baby.
Question
Is it permissible for Lawyer A to represent the grandparents in a contested private custody action after having been Guardian ad Litem in a DSS action over custody of the two-year-old child?
Summary
No. Rule 1.9, Conflict of Interest: Former client would prohibit the subsequent representation of the grandparents because the new representation would be 鈥渟ubstantially related鈥� to Lawyer A鈥檚 prior role as Guardian ad Litem. Further, Lawyer A would also violate Rule 3.7, Lawyer as Witness, since Lawyer A would most likely be deemed a 鈥渘ecessary witness鈥� in the new custody action.
Opinion
Rule 1.9 of the South Carolina Rules of Professional Conduct governs representation against a former client. Subsection (c) provides:
A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter:
(1) use information relating to the representation to the disadvantage of the former client except as Rule 1.6 [Confidentiality of Information] or Rule 3.3 [Candor Toward the Tribunal] would permit or require with respect to a client, or when the information has become generally known; or
(2) reveal information relating to the representation except as Rule 1.6 or Rule 3.3 would permit or require with respect to a client.
Clearly, a Guardian ad Litem does not 鈥渞epresent鈥� the parents in any action. The purpose of the Guardian is to report to the Court on the best interests of the child involved in the dispute. By virtue of this 鈥渘eutral鈥� position in a case, the Guardian is normally privy to information which one party might not wish to disclose to the other side. The Comments to Rule 1.9 specify, 鈥淭he underlying question is whether the lawyer was so involved in the matter that the subsequent representation can be justly regarded as a changing of sides in the matter in question.鈥�
As discussed in the Annotations to Rule 1.9, South Carolina has a case that is analogous with this fact situation. Annotated South Carolina Rules of Professional Conduct, 2002 Edition, Robert M. Wilcox and Nathan M. Crystal (2002). Townsend v. Townsend, 323 S.C. 309, 474 S.E.2d 424 (1996), involved a lawyer who had acted as Guardian ad Litem in a divorce matter and later attempted to represent the father in an action to reduce child support against the mother and the child. Our Supreme Court defined the 鈥渟ubstantially related鈥� test of Rule 1.9 to include confidential information which the lawyer 鈥渞easonably could have learned.鈥� They further stated:
Here, although he claims none of the same information was actually used in the two matters, Lawyer should have recognized the risk that information he gained during the custody matter in which he was Daughter鈥檚 guardian ad Litem might prove relevant to the child support claim and particularly to the college support claim in the action in which he represented Father. Annotated South Carolina Rules of Professional Conduct, 2002 Edition, Robert M. Wilcox and Nathan M. Crystal (2002), citing 323 S.C. at 317-318, 474 S.E.2d at 429.
From Townsend, one could reasonably assume that our state鈥檚 Supreme Court views the position of Guardian ad Litem as one which would involve the gathering of intimate information about the parties to the case. As such, despite the lack of a formal lawyer-client relationship with the parents, Lawyer A still would have a problem representing grandparents against the parents. Lawyer A 91黑料爆料arly had the ability to gather confidential information both for and against the biological parents. More to the point, Lawyer A has personal knowledge of the prior DSS case, and the ensuing agreement the grandparents made with the parents in order to bring the case to a close. In a disputed custody action, Lawyer A would be remiss if she did not use all information at her disposal to prove the parents unfit and accomplish the goal of awarding custody to the grandparents. Further, the use of this information would fly in the face of the parents, who had been relating confidences to a lawyer whom they believed to be a mere fact-finder, and not the opposition.
In addition to Rule 1.9, Rule 3.7 Lawyer as Witness would prove a difficult hurdle for Lawyer A to overcome. Rule 3.7 provides that a lawyer cannot act as advocate in a trial in which she is a 鈥渘ecessary witness.鈥� The rule allows exceptions only for uncontested issues, testimony about the nature and value of legal advice rendered, and matters in which disqualification would work a substantial hardship on the client. In the Annotations to Rule 3.7, Wilcox and Crystal highlight that even if the testimony would help the case, the client could ultimately suffer: essentially, the credibility and value of the evidence being presented by Guardian A might be questioned because of Lawyer A鈥檚 duty to the current client.
In the fact situation presented, Lawyer A would obviously be a necessary witness in the custody action. The circumstances surrounding the removal of the two-year-old child from the biological parents would certainly be critical in an action to remove a second child from their custody. Lawyer A would be doing the grandparent-clients an injustice by failing to acknowledge that his credibility as a witness would be a critical aspect in the case. Due to the great potential for harm to the grandparent-clients, Lawyer A should not position himself to act as both lawyer and fact witness.
While this committee does not speak to the legal principles which govern the importance of Guardian/Lawyer A鈥檚 potential testimony, the bare facts of this situation are such that both Rule 1.9 and Rule 3.7 would require Lawyer A to decline representation of the grandparents in their pursuit of custody for the newborn child.