According to a recent opinion from the Illinois State Bar Association, a lawyer cannot represent a parent in a custody or child support case because another lawyer at the firm, who had worked as a solo practitioner previously, had represented the child as a court-appointed guardian ad litem in a visitation matter. Attorney
As the duties of a GAL are distinct from those in an attorney-client relationship, the application of the Rules of Professional Conduct to any conflict is indirect. Rule 1.9(a) prohibits a lawyer who has “formerly represented a client” from representing another person in the same or a substantially related matter. The GAL did not “formerly represent a client,” but did attempt to modify child custody and child support otherwise fits under Rule 1.9(a).
Because a GAL acts in the child’s best interests, a child does not have an attorney-client relationship with the attorney who serves as the GAL. However, the comments to the rules on custody proceedings state that a lawyer who represents a child “in any capacity” must act “in accordance with the rules of ethics and avoid conflicts of interest.” Because conflict would arise, a lawyer who served as a child’s previous GAL cannot go on to represent the child’s parents in a following custody matter.
Illinois’s Rule of Professional Conduct Rule 1.10 states that a firm’s attorneys cannot represent a client “when any one of them practicing alone would be prohibited from doing so.” Thus, the former GAL’s conflict of interest attaches to the other lawyers of the firm. In contrast to the ABA’s model Rules, Illinois’ screening provision is only available when a new lawyer is joining the firm.
Read the full opinion here.
