GAL can't meet ward without attorney

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A guardian ad litem cannot meet with a represented ward unless the ward’s adversary counsel is present.

On Dec. 22, the Wisconsin Court of Appeals reversed a non-final order that required a ward in guardianship to meet with the GAL alone.

Patricia M. Cavey, an attorney with Milwaukee Disability Law Center, who represents the ward, praised the holding as necessary to protect incompetent persons’ right to counsel and to hold GALs to the same standards as other attorneys.

Too many GALS, Cavey said, act like they are “the king of the courthouse.”

Jennifer M. is an adult woman subject to a limited guardianship. Her father is her guardian, and her parents are divorced. The circuit court has appointed an attorney to be her GAL, and she has also retained her own adversary counsel.

After Jennifer’s mother petitioned to remove the father as guardian, Jennifer moved to dismiss the petition, and to replace the GAL. The circuit court denied Jennifer’s motions, and also entered the following order:

“[Jennifer M.] is ordered to meet with Attorney Franz Maurer, her Guardian ad Litem, one-on-one … within 21 days of this order, to discuss [her] position regarding future contact with her maternal family. The Guardian ad Litem is ordered to report to the Court regarding the best interests of [Jennifer] regarding such future contact, as well as any participation by [Jennifer] in the mediation process initiated by the Guardian and [her] mother.”

The Court of Appeals’ granted Jennifer’s petition for interlocutory review, and reversed, in an opinion by Judge Edward R. Brunner.

The court’s analysis involved the interplay of several provisions: sec. 54.42, which guarantees a ward’s right to counsel; sec. 54.50, which requires a GAL to interview a ward; and SCR 20:4.2, which prohibits ex parte interviews by an opposing attorney.

The court began by holding that nothing in SCR 20:4.2 would prohibit a one-on-one meeting between a GAL and a ward.

While the rule prohibits ex parte interviews generally, it has an explicit exception when the lawyer is acting pursuant to a court order, as a GAL would be doing.

Nevertheless, the court concluded that the policies underlying the rule against ex parte contact apply to GAL meetings with a ward, and that the right to counsel in sec. 54.42 includes the right to have counsel present at such a meeting.

First, the court noted that, by definition, a ward in guardianship has been found not competent to make or communicate decisions. Thus, one of the concerns behind the no contact rule — the disparity in legal skills — is present to an even greater degree than when an attorney meets with laypersons generally.

Second, the court found that the presence of adversary counsel would prevent the GAL from driving a wedge between the ward and her adversary attorney by manipulating the distinction between the ward’s best interests (which the GAL represents) and her expressed interests (which adversary counsel represents).

Finally, the court found that the presence of counsel would prevent the inadvertent disclosure of information protected by the attorney-client privilege.

The court emphasized the narrowness of its holding. “The question we are confronted with today is a narrow one of law. The guardian ad litem must interview the ward as part of his or her general duties. We simply hold the interview must be conducted in the presence of a represented ward’s adversary counsel.”

In a footnote, the court acknowledged possible uncertainty as to the role of adversary counsel during a ward’s interview with a GAL.

However, the court said it would leave oversight of the interview to the circuit court’s discretion, although it did note its belief that the rules should be similar to those in sec. 804.05(4)(b), which govern depositions.

Growing problem

Attorney Cavey said that the opinion resolves what has been a huge problem in courts statewide.

While 80 to 90 percent of guardianships are uncontested and this issue never arises, she said that contested guardianships are becoming more common with the growth in estate planning.

“Powers of attorney are common, and people have relationships with attorneys to handle things if they become incompetent,” Cavey said. “But instead of backing off when they realize a ward is represented, too many GALS don’t do that.”

She added, “Often, GALs don’t have an active practice except GAL work, and they don’t appreciate the boundaries, like the rest of the bar. No attorney doing personal injury work, or a prosecutor, would ever ask a represented party to meet without counsel. But some GALs feel like I’m interfering with their job or doing something nefarious by requesting the courtesy of a phone call to set up a meeting.”