PUBLISHED OPINION
Case Nos.: 94-3434,
94-3435, 94-3436, 94-3437, 94-3438
Complete
Title
of Case: 94-3434
IN THE INTEREST OF STEVEON R. A.,
A PERSON UNDER THE AGE OF 18:
LA CROSSE COUNTY DEPARTMENT
OF SOCIAL SERVICES,
Petitioner-Respondent,
v.
ROSE K.,
Respondent-Appellant,
HOWARD A.,
Co-Appellant.
--------------------------------------------
94-3435
IN THE INTEREST OF ALKCAYLA M. A.,
A PERSON UNDER THE AGE OF 18:
LA CROSSE COUNTY DEPARTMENT
OF SOCIAL SERVICES,
Petitioner-Respondent,
v.
ROSE K.,
Respondent-Appellant,
HOWARD A.,
Co-Appellant.
--------------------------------------------
94-3436
IN THE INTEREST OF BRITNIYA R. A.,
A PERSON UNDER THE AGE OF 18:
LA CROSSE COUNTY DEPARTMENT
OF SOCIAL SERVICES,
Petitioner-Respondent,
v.
ROSE K.,
Respondent-Appellant,
HOWARD A.,
Co-Appellant.
--------------------------------------------
94-3437
IN THE INTEREST OF KAYTLENE N. A.,
A PERSON UNDER THE AGE OF 18:
LA CROSSE COUNTY DEPARTMENT OF
SOCIAL SERVICES,
Petitioner-Respondent,
v.
ROSE K.,
Respondent-Appellant,
HOWARD A.,
Co-Appellant.
--------------------------------------------
94-3438
IN THE INTEREST OF TATIANNIA L. A.,
A PERSON UNDER THE AGE OF 18:
LA CROSSE COUNTY DEPARTMENT
OF SOCIAL SERVICES,
Petitioner-Respondent,
v.
ROSE K.,
Respondent-Appellant,
v.
HOWARD A.,
Co-Appellant.
Submitted
on Briefs: June 13, 1995
COURT COURT OF
APPEALS OF WISCONSIN
Opinion
Released: July 27, 1995
Opinion
Filed: July
27, 1995
Source
of APPEAL Appeal from an order
Full
Name JUDGE COURT: Circuit
Lower
Court. COUNTY: La Crosse
(If
"Special" JUDGE: Michael
J. McAlpine
so
indicate)
JUDGES: Eich, C.J., Dykman and Vergeront, JJ.
Concurred:
Dissented:
Appellant
ATTORNEYSFor the respondent-appellant the
cause was submitted on the briefs of Kimberly A. Henderson of Bosshard
& Associates of La Crosse.
Respondent
ATTORNEYSFor the petitioner-respondent the
cause was submitted on the brief of David L. Lange, assistant
corporation counsel of La Crosse and Angela L. Machi, guardian ad
litem, of La Crescent, Minnesota.
COURT OF APPEALS DECISION DATED AND RELEASED July
27, 1995 |
NOTICE |
A party may file with the Supreme Court a petition to review an
adverse decision by the Court of Appeals.
See § 808.10 and Rule 809.62,
Stats. |
This opinion is subject to further editing. If published, the official version will appear in the bound
volume of the Official Reports. |
Nos. 94-3434
94-3435
94-3436
94-3437
94-3438
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT IV
94-3434
IN THE
INTEREST OF STEVEON R. A.,
A
PERSON UNDER THE AGE OF 18:
LA CROSSE
COUNTY DEPARTMENT
OF SOCIAL
SERVICES,
Petitioner-Respondent,
v.
ROSE
K.,
Respondent-Appellant,
HOWARD
A.,
Co-Appellant.
---------------------------------------------------------------------------------
94-3435
IN THE INTEREST OF ALKCAYLA M. A.,
A PERSON UNDER THE AGE OF 18:
LA CROSSE
COUNTY DEPARTMENT
OF
SOCIAL SERVICES,
Petitioner-Respondent,
v.
ROSE
K.,
Respondent-Appellant,
HOWARD
A.,
Co-Appellant.
---------------------------------------------------------------------------------
94-3436
IN THE
INTEREST OF BRITNIYA R. A.,
A
PERSON UNDER THE AGE OF 18:
LA CROSSE
COUNTY DEPARTMENT
OF
SOCIAL SERVICES,
Petitioner-Respondent,
v.
ROSE
K.,
Respondent-Appellant,
HOWARD
A.,
Co-Appellant.
---------------------------------------------------------------------------------
94-3437
IN THE
INTEREST OF KAYTLENE N. A.,
A
PERSON UNDER THE AGE OF 18:
LA CROSSE
COUNTY DEPARTMENT OF
SOCIAL
SERVICES,
Petitioner-Respondent,
v.
ROSE
K.,
Respondent-Appellant,
HOWARD
A.,
Co-Appellant.
---------------------------------------------------------------------------------
94-3438
IN THE
INTEREST OF TATIANNIA L. A.,
A
PERSON UNDER THE AGE OF 18:
LA CROSSE
COUNTY DEPARTMENT
OF
SOCIAL SERVICES,
Petitioner-Respondent,
v.
ROSE
K.,
Respondent-Appellant,
HOWARD
A.,
Co-Appellant.
APPEAL
from an order of the circuit court for La Crosse
County: MICHAEL J. McALPINE, Judge.
Reversed and cause remanded with directions.
Before
Eich, C.J., Dykman and Vergeront, JJ.
DYKMAN,
J. We granted Rose K.'s petition for
leave to appeal from an interlocutory order denying her request to disqualify
her children's guardian ad litem.
Section 808.03(2), Stats. The chief judge ordered that this case be
heard by a three-judge panel.
Section 752.31(3), Stats. The issue presented is whether an attorney
who prosecutes the father of nonmarital children in a paternity action on
behalf of the State of Wisconsin and owes a duty of loyalty to La Crosse
County in child support enforcement actions, may also act as the guardian ad
litem for those children in a child in need of protection or services (CHIPS)
proceeding. We conclude that a conflict
of interest exists in those representations, and therefore reverse the order
denying Rose's request for new counsel for her children.
Rose
and Howard A. are the parents of five nonmarital children, Steveon R.A.,
Alkcayla M.A., Britniya R.A., Kaytlene N.A., and Tatiannia L.A. The state, represented by Attorney Angela
Machi, prosecuted several paternity actions against Howard. Howard was adjudicated the father of several
of the children and was ordered to pay child support to Rose. Because Rose receives aid to families with
dependant children (AFDC), she assigned her child support to the La Crosse
County Child Support Agency. Attorney
Machi will represent the state in enforcement actions against Howard if the
need arises.[1]
In
November 1994, a La Crosse County case worker filed a petition with the
trial court alleging that Steveon had been abused and was in need of protection
or services. The trial court appointed
Attorney Machi as his guardian ad litem and when the case expanded to include
all of Rose and Howard's children, the court appointed her to be guardian ad
litem for all of them.[2]
We review trial court
decisions on attorney disqualification for an erroneous exercise of
discretion. Marten Transp. Ltd.
v. Hartford Specialty Co., ___ Wis.2d ___, ___, 533 N.W.2d 452, 455 (1995). We have adopted the "substantial
relationship" test in attorney disqualification cases. In re Tamara L.P., 177 Wis.2d
770, 781, 503 N.W.2d 333, 337 (Ct. App. 1993).
That test provides: "where
an attorney represents a party in a matter in which the adverse party is that
attorney's former client, the attorney will be disqualified if the subject
matter of the two representations are `substantially related.'" Berg v. Marine Trust Co., N.A.,
141 Wis.2d 878, 885, 416 N.W.2d 643, 647 (Ct. App. 1987) (quoted source
omitted). The substantial relationship
test does not require a finding that a breach of ethical standards or client
confidentiality has occurred, but only that the attorney has undertaken
representation which is adverse to the interests of a former client. Id. at 892, 416 N.W.2d at
649. The conflict of interest need not
be actual. A serious potential conflict
may be enough for disqualification. State
v. Miller, 160 Wis.2d 646, 659, 467 N.W.2d 118, 123 (1991).
We
must modify, however, the substantial relationship test for use here because
Attorney Machi, as the guardian ad litem, is not representing a client with
interests adverse to a former client.
Instead, Attorney Machi is representing children whose interests may be
adverse to the interests of Attorney Machi's present client, the state, or the
interests of a third party, La Crosse County, with whom Attorney Machi has
a professional relationship. We
conclude that in the instant case, the test for determining whether a conflict
exists is whether the attorney has undertaken representation which is adverse
to the interests of a present client or the interests of a third party with
whom the attorney has a substantial relationship. This is consistent with In re Peterson, 164 Wis.2d
755, 760-61, 476 N.W.2d 572, 574 (1991), in which the court found a violation
of SCR 20:1.7(a) and (b) when an attorney represented a client while at the
same time representing the interests of another whose interests were materially
limited by the attorney's responsibility to the other client without first
obtaining both parties' written consent after full disclosure.
Rose
asserts that Attorney Machi's appointment violates SCR 20:1.7.[3] SCR 20:1.7(b) provides in pertinent part:
A lawyer shall not represent a client if the
representation of that client may be materially limited by the lawyer's
responsibilities to another client or to a third person, or by the lawyer's own
interests, unless:
(1) the lawyer reasonably believes
the representation will not be adversely affected; and
(2) the
client consents in writing after consultation.
The comment to this rule provides in part: "As a general proposition, loyalty to a
client prohibits undertaking representation directly adverse to that client
without that client's consent." We
agree. Attorney Machi's duties include
collecting support from Howard, and prosecuting and ultimately attempting to
incarcerate him if he fails to pay support.
The money that Howard pays to the state is money that is no longer
available for him to provide to his children.
Attorney Machi decides when to commence a support action against
Howard. Her roles present the following
conflicts: Should Attorney Machi
commence a support action and satisfy her client, the state, and a person with
whom she has a contractual relationship, La Crosse County? Or should she not do so because her other
clients, Howard's children, could use the extra money for an item not provided
through AFDC payments? If Howard fails
to pay what is ordered, should Attorney Machi attempt to incarcerate him, thus
depriving the children of a father?
These conflicts are real, and they place Attorney Machi in a position
that no attorney should face: deciding
which of two clients she will serve.
Attorney
Machi's relationship with La Crosse County is a somewhat different
matter. We accept that she represents
the state in paternity and child support actions. But the job description of a special prosecutor for child support
and paternity actions shows that Attorney Machi owes a duty of loyalty to
La Crosse County:
This position is
not that of a County employee, but is one of providing specialized legal
services on a contractual basis on behalf of the La Crosse County Child
Support and Paternity Agency. The
attorney provides legal services as a civil prosecutor per Sec. 59.458 of the
Wisconsin Statutes in the area of establishing paternity, securing court orders
for support obligations as well as enforcing the collection of support. These services are provided on an hourly
basis as required and the terms of services are set forth in a written
contract.
The job description also notes that Attorney Machi
"[p]rosecutes paternity actions in a court of law on behalf of the Child
Support Agency until negotiated settlement or settlement at a trial is
reached," "[k]eeps records and makes reports," and "[p]erforms
related work as required or directed."
So, while it is true that Attorney Machi represents the state in its
paternity actions against Howard, she is certainly more than a bystander when
it comes to her professional relationship with La Crosse County. SCR 20:1.7(b) speaks to this sort of
relationship when it refers to "responsibilities to ... a third
person."
Attorney Machi and
La Crosse County respond to Rose's argument by asserting that SCR 20:1.7
addresses the representation of clients and that Rose is not Attorney Machi's
client. But the rule deals with clients
and third parties. If Rose
cannot assert the existence of a conflict of interest that may harm her children,
who can? Certainly not the children's
attorney, for that is Attorney Machi, and she has joined in La Crosse
County's brief, asserting that there is no conflict of interest. The children are minors, ranging from ages
two to eleven. They cannot be expected
to make this argument for themselves and Attorney Machi is certainly not making
this argument for them. We conclude
that Rose may bring the conflict of interest to our attention, and that SCR
20:1.7 addresses parties other than clients or former clients.
Attorney
Machi has a duty to her clients, Rose and Howard's children. That representation is materially limited by
Attorney Machi's responsibilities to another client, the state, and a third
party, La Crosse County. We
therefore conclude that the trial court erroneously exercised its discretion by
denying Rose's request to disqualify Attorney Machi from her representation of
Rose and Howard's children.
Accordingly, we reverse and order the trial court to grant Rose's
request to disqualify Attorney Machi.
By
the Court.—Order reversed and
cause remanded with directions.
[1] Attorney Machi provides specialized legal
services to La Crosse County on a contractual basis. Her job description includes "enforcing
the collection of support" and "[e]nforc[ing] current orders for
child support through civil contempt or collection of arrearages by other civil
legal process."
[2] The guardian ad litem is an advocate for a
minor child's best interests, functions independently, and considers, but is
not bound by the wishes of the minor child or the positions of others as to the
best interests of the minor child.
Section 767.045(4), Stats. This means that the guardian ad litem does
not represent a child per se but represents the concept of the child's
best interests. Wiederholt v.
Fischer, 169 Wis.2d 524, 536, 485 N.W.2d 442, 446 (Ct. App. 1992). We conclude that for the purpose of this
conflict of interest analysis, a guardian ad litem represents a child.
[3] Rose also asserts violations of
§ 48.235, Stats., and
several ethics opinions. Because we
conclude that SCR 20:1.7(b) prevents Attorney Machi from representing the state
in paternity actions against Howard while also representing the children in a
CHIPS proceeding, we need not address the applicability of § 48.235 or the
ethics opinions. See Sweet
v. Berge, 113 Wis.2d 61, 67, 334 N.W.2d 559, 562 (Ct. App. 1983) (this
court need not address other issues when one is dispositive of the
appeal).