Vol. 77, No. 12, December 2004

Ethics 2000: Proposed Rule Creates GAL Conduct Standard

by Hannah C. Dugan

Why is it necessary that Wisconsin have a stand-alone guardian ad litem (GAL) rule? SCR 20:4.5 Guardians ad Litem is one of three completely new rules that the Wisconsin Ethics 2000 Committee has proposed be added to the Rules of Professional Conduct for Attorneys by which lawyers currently practice.¹ This article briefly discusses the proposed GAL rule and the professional responsibility gaps it is designed to bridge.

Proposed Rule 4.5 Guardians Ad Litem

Proposed rule 4.5 reads:

"A lawyer appointed to act as a guardian ad litem or as an attorney for the best interests of an individual represents, and shall act in, the individual's best interests, even if doing so is contrary to the individual's wishes. A lawyer so appointed shall comply with the Rules of Professional Conduct, except with respect to requirements concerning client consent or direction."

Wisconsin Ethics 2000 Committee comment. "The [ABA] Model Rules do not contain a counterpart provision. The role of guardians ad litem is defined consistent with reported decisions. See, e.g., Paige K.B. v. Molepske, 219 Wis. 2d 418, 580 N.W.2d 289 (1998); In re Steveon R.A., 196 Wis. 2d 171, 537 N.W.2d 142 (Ct. App. 1995). Eligibility for appointment as a guardian ad litem is governed by Supreme Court Rules, Ch. 35-36. The Rule expressly notes that a lawyer acting as guardian ad litem represents the best interests of the child or ward for whom the lawyer is appointed. Because the child or ward of a guardian ad litem is not a client in the usual sense of that term, care should be used in applying these Rules, particularly Rules 1.2 [scope of representation] and 1.6 [confidentiality of information]."

As noted in the committee comment, no counterpart rule exists in the ABA Model Rules, on which the Wisconsin rules are based. Despite the GAL's critical role in the court system - to serve in a special court-appointed capacity as "the eyes and the ears" of the court - this role is only mentioned in the most recent ABA Model Rules and, therefore, now in some states' rules.² Unlike attorneys acting in other roles, GALs do not represent actual clients but rather carry out the concept of "representing the best interests" of legally incompetent persons or other persons who need their interests protected. The need for GAL appointment arises when the individual is an interested person or party to an action but is not the initiating, or in some instances the responding, litigant.³ A GAL does not represent the government or a family member or even the legally or alleged incompetent person. Indeed, because no client is represented, the committee intentionally placed proposed rule 4.5 in subchapter IV of Chapter 20, entitled "Transactions with Persons Other than Clients."

Case law, and statutory and inherent authority, exist regarding GALs in matters involving family law, CHIPS, municipal prosecution, and probate. Much of current GAL-related case law addresses whether the attorney can act as a GAL altogether.⁴ Some statutory authority directs some of the duties that GALs perform, for example, Wis. Stat. chapters 48, 55, 767, and 880. But there is no authority that indicates that GALs serve in an attorney-client representative capacity. The committee notes that rules involving client consent, the scope of representation, and allocation of authority between lawyer and client cannot readily apply to an attorney acting as a GAL, because the GAL 1) does not have a client and 2) serves in some type of substitution capacity by order of the court.

So why is it necessary that Wisconsin have a stand-alone GAL rule?

The Rule Clarifies GAL Responsibilities for the Public and for the Court

In Wisconsin, unlike many other states, only licensed attorneys can accept GAL appointments. During the last several years, the Wisconsin Supreme Court has directed a good deal of administrative attention to eligibility standards for GALs.⁵ This heightened standardization of the GAL role should be recognized in the rules to which the public and the profession turn for guidance regarding attorney conduct.

The rules, which pertain largely to the client-attorney relationship, do not explicitly or otherwise necessarily provide direction regarding the appropriate and relevant conduct of GALs. The Office of Lawyer Regulation (OLR) and the State Bar Professional Ethics Committee receive numerous complaints and inquiries regarding GALs. Both of these entities, after reviewing statutory authorities and case law standards concerning GALs, can fashion responses to the inquiries. However, sometimes of necessity, the responses can be tenuous, because no clearly applicable rules are available for application.

Given that the rules serve both as accepted standards of conduct and as bases for discipline, the rules currently do not fulfill these functions adequately because they do not address the core issue: by what authority are the public, the courts, lawyers, and the OLR supposed to know that GALs have carried out the role they accepted? The proposed rule sets out the basic standard against which both hypothetical and actual fact situations can be measured: 1) the GAL is expected to represent the individual's best interests; and 2) the GAL, in carrying out this duty, is not expected nor obligated to necessarily follow an individual's wishes.

The Rule Eliminates the Current GAL "Catch-22"

The holding in Paige K.B. v. Molepske created a bit of a catch-22 in the area of attorney discipline, adding further impetus for the Ethics 2000 Committee to recommend the GAL rule. In Molepske, the plaintiff minors brought an action against the defendant GAL, claiming that the GAL had negligently performed his duties in their custody proceedings and that his negligence had caused the wards to suffer substantial injury.

The court held that the attorney was entitled to absolute quasi-judicial immunity for any negligent performance of his duties.⁶ Part of the rationale stated by both the Wisconsin Supreme Court and the Court of Appeals in arriving at this decision was in essence that a litigant's remedy is to file a complaint against the attorney with the OLR; redress is not available by naming the GAL in a negligence action.⁷ With this holding, the public is directed to the OLR as a place for recourse for unacceptable professional activity by GALs. And therein lies the catch-22. A person, who otherwise would be a tort litigant, is directed to file an OLR complaint, but no professional conduct rule currently exists to address the conduct of an attorney acting in the GAL role. As a result, with very few exceptions, the public currently cannot seek review of GAL professional conduct by either the courts or the OLR.⁸

The proposed GAL rule helps to reconcile the Molepske holding, which deprives a litigant of a remedy, with a process for providing a complainant with redress. Attorneys who serve as GALs can now be subject to discipline for violating the Rules of Professional Conduct for Attorneys, because proposed rule 4.5 lays out the standard that, as GALs, attorneys have a special role, and their actions shall be in the individual's best interests, even if GAL recommendations are contrary to the individual's wishes. Such a rule will 1) help guide persons contemplating whether to file a complaint against an attorney, and 2) serve as a guide to the OLR in deciding whether to investigate and to prosecute a complaint against a GAL.

As is true of all complaints filed with the OLR, the rule will be applied to individual facts of a case and will be considered along with the guidance found in the Wisconsin commentary. It is hoped that rule 4.5 will be instructive to potential OLR complainants who are dissatisfied with the GAL's recommendations rather than with the GAL who made the recommendations. Further, the rule will serve as a means to respond to legitimate complaints of abuse, misconduct, or irresponsibility by GALs - such as those that were evident and discussed in Molepske. By adopting the GAL rule, Wisconsin will lead the nation in setting standards for attorneys in nonadvocate roles as well as in protecting our most vulnerable residents from professional misconduct.

Endnotes

¹In the wake of the ABA Ethics 2000 Commission amendments to the ABA Model Rules of Professional Responsibility, the Wisconsin Supreme Court appointed the Wisconsin Ethics 2000 Committee in 2003 to review SCR chapter 20, Rules of Professional Conduct for Attorneys.

²See changes to ABA Model Rule 1.14 (and Wisconsin SCR 20:1.14 as proposed) discussing clients with diminished capacity. Previously, the rule provided for appointment of a guardian, which is a substantially more involved and ethically complicated process than is seeking the appointment of a GAL. With the exception of Wyoming (where GALs are mentioned in the commentary to its Rule 1.14(C)), none of the ABA's or other states' rules mention GALs.

³Winnebago County HHS v. Diane M. (In re Mark J.M.), 2004 WI App 88, 272 Wis. 2d 857, 679 N.W.2d 928.

⁴See, e.g., for purposes of conflict of interest analysis in In re Steveon R.A., 196 Wis. 2d 171, 199 n.2, 537 N.W.2d 142 (Ct. App. 1995) (requiring that GAL is appointed to represent child's best interests (ward for Wis. Stat. chapters 880 and 55 purposes)); In re Guardianship of Tamara L.P., 177 Wis. 2d 770, 503 N.W.2d 333 (Ct. App. 1993) (mental commitment defense creates conflict to serving as GAL in guardianship matter); Lens v. Winberg, 51 F.3d 1540 (11th Cir. 1995) (GAL may face liability for acts outside bounds of what is required of GALs); State ex rel. Watts v. Combined Community Servs. Bd., 122 Wis. 2d 65, 366 N.W.2d 896 (1985) (case law creating directive duties for GALs serving wards in protective placement); In re Disciplinary Proceedings against Kinast, 192 Wis. 2d 36, 530 N.W.2d 387 (1995) (attorney disciplined for violating injunction regarding party contact after having contact with wards without GAL's consent).

⁵The court adopted SCR 35.01 (effective July 1, 1999) requiring CLE credit requirements and training for GALs for minors in matters under Wis. Stat. chapter 48 or 938 (and effective July 1, 2003 for appointments in matters under Wis. Stat. chapter 767); and adopted SCR 36.01 (effective July 1, 2004) requiring the same for GALs for adults in actions or proceedings under Wis. Stat. chapters 51, 55, and 880.

⁶The court held that 1) quasi-judicial immunity extends to nonjudicial officers when they perform acts intimately related to the judicial process; 2) a GAL acts on behalf of the court by appointment; and 3) a GAL appointed by a circuit court pursuant to Wis. Stat. section 767.045 to represent a child's best interests in a custody proceeding performs functions intimately related to the judicial process and, therefore, is entitled to absolute quasi-judicial immunity.

⁷Indeed, the court identified in Molepske that a GAL must be an attorney admitted to practice in the state and, therefore, is bound by and subject to reprimand for violating the rules of professional conduct. In the decision, the court specifically noted violations of SCR 20:8.4 (misconduct) and 21.06 (types of discipline).

⁸Nothing exempts a GAL from the supreme court rules. However, as written, they do not necessarily provide clear direction or authority for the public to complain or the regulatory authority to prosecute. Some rules can be looked to for guidance, e.g., SCR 20:1.1 "provide competent representation to a client;" SCR 20:1.7 "conflict of interest generally between lawyers and clients and a lawyer's current clients or other clients;" SCR 20:1.9 "conflict of interests with a former client;" SCR 20:4.2 "communication with person represented by counsel and first obtained in the consent of another party's attorney;" and SCR 20:4.3 "dealing with unrepresented person and the requirement to inform the person of the guardian ad litem's role in the matter and to avoid providing legal advice."

Wisconsin Lawyer