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 91-26
A minor aged sixteen years or older is admitted, allegedly on a voluntary basis, as an impatient of a mental health facility. Pursuant to Sections 44-24-20 and 44-24-30, the probate court appoints a Guardian ad Litem to review the case and determine whether the admission was in fact voluntary. If the Guardian ad Litem suspects the application for admission was involuntary, he is to notify the court and the inpatient facility, whereupon further action is taken by the court. If the minor's application is deemed involuntary and he is released from the inpatient facility, but it appears that inpatient treatment is needed, judicial or emergency admission (i.e., involuntary) might be sought.
Question:
If the Guardian ad Litem who is appointed for the "voluntary" admission was an attorney, would there be any conflict of interest for that attorney to be appointed as the minor's counsel for the judicial or emergency commitment process? The question will be answered in the reference to whether the attorney will be required to offer testimony or merely render an opinion at the judicial or emergency commitment process.
Opinion:
An attorney under Rule 3.7 of the Rules of Professional Conduct may not act as a witness in a case in which the lawyer is serving as advocate except where:
(1) The testimony relates to an uncontested issue; (2) The testimony relates to the nature and value of legal services rendered in a case; or (3) Disqualification of the lawyer would work substantial hardship on the client.
If the attorney will likely be a witness as to his findings while serving as Guardian ad Litem, he is disqualified to serve as counsel of a minor during judicial or emergency commitment proceedings.