Opinion #200. Attorney Serving only as Guardian ad litem: Use of IOLTA Accounts/Working with Non-Lawyer GALs and Parent Coordinators

Issued by the Professional Ethics Commission

Date Issued: August 11, 2010

Question

Attorney X has asked the Professional Ethics Commission two questions concerning her work as a Guardian ad litem (hereinafter GAL).

  1. Is a licensed Maine attorney who serves only as a court-appointed GAL in M.R.S. Title 19-A and Title 22 cases required to utilize an IOLTA account for the GAL fees paid by the parents?

  2. Assume the same fact scenario: Is it permissible for Attorney X to establish a business with non-lawyer GALs and Parent Coordinators if the only professional services delivered to parties are those two distinct services? The business would be limited to GAL and Coordination services and the lawyers would not be identified as lawyers.

Opinion

This inquiry first requires an analysis as to whether an attorney who serves solely as a court-appointed GAL is performing legal services or is engaged in the practice of law. GALs in Maine are subject to the Maine Rules for Guardians ad Litem, which provide that:

“[T]hese Rules and the accompanying Standards are to be governed and interpreted by application of the principles that a Guardian is a quasi-judicial officer of the Court, and that a Guardian does not act as a member of the Guardian's underlying profession, but rather as a judicial officer, primarily subject to and governed by the Court.”

M.R.Guardians ad Litem I.B.

GALs do not have to be lawyers. CASA certified volunteers and individuals with credentials in various mental health fields may also serve in this role. Even when a GAL’s underlying profession is that of attorney, the Code of Judicial Conduct governs GAL practice rather than the M.R.Prof.Conduct.1 Complaints against GALs are to be referred to the Judge who appointed the GAL (pending cases) or to the Chief Judge of the District Court rather than to the Board of Overseers of the Bar.

Hence, when attorneys in Maine act as GALs, they are not acting as lawyers, and their work falls within the definition of “law-related services” under M.R.Prof.Conduct 5.7(b).2 Although all attorneys admitted to, or engaging in, the practice of law in Maine are covered by the Maine Rules of Professional Conduct, attorneys are not subject to those Rules when they are performing only law-related services if the provision of law-related services is distinct from the lawyer’s provision of legal services. See M.Bar R. 1(a) & M.R.Prof.Conduct Rule 5.7(a).3

Question #1

All attorneys registered in Maine are required to certify that they maintain at least one IOLTA trust account. M.Bar R. 6(a)(2)(A)(1). However, an attorney is exempt from this requirement if he or she is not engaged in the private practice of law or holds no client funds other than retainers or advances for costs and expenses. M.Bar R. 6(a)(2)(B)(1) & (6).

Attorney X, although licensed to practice in Maine, restricts her business to court-appointed GAL services. Under the M.R. Guardians ad Litem, she is not performing those services as a lawyer. Although neither the Maine Bar Rules nor the Maine Rules of Professional Conduct define “legal services” or the “practice of law”, those concepts are centered around a lawyer’s responsibility to clients in the provision of services that (1) would be the unauthorized practice of law if performed by a non-attorney and/or (2) require the application of legal knowledge and skill in applying legal principles and precedent to “the preparation of legal documents, their interpretation, the giving of legal advice, or the application of legal principles to problems of any complexity . . .” Board of Overseers of the Bar v. Mangan, 2001 ME 7, 13.

Attorney X does not have clients within the context of an attorney-client relationship. When she is working as a GAL, she is working as a quasi-judicial officer and not as an attorney. Hence, while she is undoubtedly applying her legal knowledge and skill and applying legal principles to complex problems, she is doing so in the provision of law-related services only, distinct from the provision of any legal services, and she is not engaged in the private practice of law. Therefore, Attorney X, assuming the professional arrangement she describes, is exempt from maintaining an IOLTA account.

Question #2

M.R.Prof.Conduct 5.4(b) prevents lawyers from forming a partnership with non-lawyers “if any of the activities of the partnership consist of the practice of law.” Similarly, M.R.Prof.Conduct 5.4(a) prevents attorneys from sharing “legal fees” with non-attorneys.

Attorney X proposes forming a partnership with a non-attorney solely for the provision of GAL services and asserts that she would not be identified as a lawyer. Assuming this set of facts, and consistent with the analysis of Question #1 above, none of the activities of the partnership Attorney X is proposing consist of the practice of law and the fees paid to the partnership are not legal fees.

Conclusion

Attorney X is subject to the Maine Bar Rules and the Maine Rules of Professional Conduct in her professional activities because she is admitted to practice law in Maine. This is true even though, by rule, when serving as a GAL, she is not working as an attorney and is not practicing law. However, because of the nature of her work, she falls within an exception to the mandatory IOLTA requirement in M. Bar R. 6(a)(2)(A)(1), and because she is not practicing law in her professional work, she may choose to form a partnership with a non-attorney.

These conclusions are dependent upon the facts presented. If in the future Attorney X accepts any matters that come to her professional offices as an attorney rather than as a GAL, these conclusions may change. Any provision of legal services to a client must be kept distinct from the Attorney’s work as a GAL, and the Attorney must take reasonable measures to assure that a person obtaining the law-related services knows that the services are not legal services.4


Footnotes

1M.R.Guardians ad Litem II.3.A, entitled “Standards of Conduct”, obligates Guardians, including those who are attorneys, to comply with “Paragraphs 1 & 2 of the Preamble, and with the sections entitled Standards of Performance, Abuse of Position, Discrimination, and Conflict of Interest of the Judicial Branch Code of Conduct” but does not require compliance with, or even mention, the M.R.Prof.Conduct.

2The 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. M.R.Prof.Conduct 5.7(b).

3Rule 1.15 of the MRPC requires that lawyers create IOLTA accounts for certain client funds and directly references Rule 6 of the MBR for the specific parameters for IOLTA accounts.

4Attorney X does not intend to identify herself as an attorney when she is hired as a GAL. While the Rules do not require her to do this, any self-identification as an attorney, for example on office letterhead, would require reasonable countermeasures to make sure that prospective clients understand that the services offered are not legal services.


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