IN the MATTER OF the GUARDIANSHIP & PROTECTIVE PLACEMENT OF TAMARA L.P., alleged to be incompetent: TAMARA L.P., Appellant, v. COUNTY OF DANE, Respondent.
No. 93-0094-FT
Court of Appeals of Wisconsin
June 17, 1993
503 N.W.2d 333
On behalf of Tamara L.P., there was a brief by Kim Zion Alexander of Schuster & Mader of Madison, guardian ad litem.
For the respondent the cause was submitted on the briefs of Cal W. Kornstedt, corporation counsel, and Arnold N. Rusky, assistant corporation counsel.
Before Eich, C.J., Gartzke, P.J., and Sundby, J.
We apply the “substantial relationship” test which we adopted in Berg v. Marine Trust Co., 141 Wis. 2d 878, 884-85, 416 N.W.2d 643, 646-47 (Ct. App. 1987), and conclude that the subject matter of petitions for appointment of a guardian for a proposed ward under
BACKGROUND
On September 2, 1992, Tamara P. was the subject of emergency detention under
At the probable cause hearing, the matter was converted to a proceeding for guardianship under
On September 29, 1992, Tamara‘s appointed counsel filed a motion to remove Alexander as guardian ad litem on several grounds. First, Tamara contended that permitting Alexander to act аs her guardian ad litem violated her right to due process. Second, she claimed that permitting Alexander to act as guardian ad litem violated her right to counsel secured by
At the contested hearing on September 30, 1992, the trial court denied Tamara‘s motion to remove Alexander as guardian ad litem. The trial court did not take testimony, but relied on Alexander‘s representations that her prior representation of Tamara had been very limited. Alexander further represented that the only document she had access to was a statement of the
THE COURT: [D]o you feel . . . that you are able to make an independent recommendation to the Court based on the reports that are submitted, the testimony that may be received today, apart from whatever impressions you may have formed from your initial discussions with [Tamara]?
MS. ALEXANDER: Yes, I do.
On the basis of these representations the court concluded:
Under the representations made here by Ms. Alexander that she had access to no information that is not otherwise part of this file already and that she is able to make аn independent recommendation apart from whatever information [Tamara] may have imparted to her, I believe that the possibility of a conflict of interest has been removed from this case, and I‘m going to deny the motion for removal of the guardian ad litem based on the record established before me.
DECISION
A. Due Process.
We first consider Tamara‘s claim that Alexander‘s appointment as guardian ad litem in the guardianship and protective placement proceedings denied her due process. It is not clear whether she claims a violation of her right to procedural due process or to substantive due process. In any event, her argument in this respect is not developed. She cites no authority to support her claim. We will not develop her argument. See State v. Shaffer, 96 Wis. 2d 531, 545-46, 292 N.W.2d 370, 378 (Ct. App. 1980).
On appeal, Tamara confines her right-to-counsel argument to a claim that Alexander failed to prоvide her with effective counsel. The county and the guardian ad litem assert that Tamara did not raise that issue in the trial court and we should not consider it. See Wirth v. Ehly, 93 Wis. 2d 433, 443, 287 N.W.2d 140, 146 (1983). The county and the guardian ad litem mistake Tamara‘s argument. She argues that the right to the assistance of counsel includes the right to effective representation and, once it is demonstrated that counsel actively represented a conflicting interest, counsel is per se ineffective. State v. Franklin, 111 Wis. 2d 681, 686-87, 331 N.W.2d 633, 636-37 (Ct. App. 1983). Tamara raised this issue in the trial court. However, we conclude that her right to the effective assistance of counsel does not include the right to insist that the guardian ad litem appointed to represent her best interests provide effective assistance. Tamara is represented by adversary counsel and that representation satisfies any constitutional or statutory right Tamara has to representation.2
C. Conflict of Interest.
Finally, we address Tamara‘s claim that Alexandеr could not serve as guardian ad litem in the
Tamara claims that the record of the contested guardianship and protective plaсement hearing shows that Alexander used against her information Alexander could only have gained as the result of her prior representation of Tamara. She also contends that Alexander is prohibited by law from acting as guardian ad litem for Tamara regardless of whether an actual conflict arose out of Alexander‘s prior representation of Tamara in the
We address Tamara‘s latter claim first because our resolution of that claim may provide guidance to trial courts. If the probate court‘s informal procedure by which a guardian ad litem is appointed in incompetency cases is not permitted by law, we need not consider Tamara‘s claim that Alexander had an actual conflict of interest which prevented her from serving as guardian ad litem.
The court shall appoint a guardian ad litem whenever it is proposed that the court appoint a guardian on the ground of incompetency under
s. 880.33 , protectively place a person or order protective services unders. 55.06 , review any protective placement or protective service order unders. 55.06 or terminate a protective placement unders. 55.06 .
The county and the guardian ad litem argue that the probable cause hearing under
When a person is taken into custody on an emergency basis under
We next consider whether Alexander was disqualified from serving as guardian ad litem for Tamara‘s best interests by ethical principles governing advocacy and representation. We have adopted the “substantial relationship” test in attorney disqualification cases. Berg, 141 Wis. 2d at 884-85. “Simply stated, the test is as follows: ‘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.” ’ ” Id. at 885 (quoting Westinghouse Elec. Corp. v. Gulf Oil Corp., 588 F.2d 221, 223 (7th Cir. 1978)). We adopted the substantial relationship test from the interpretation of Canons of the American Bar Association Code of Professional Responsibility which require lawyers to “preserve the confidences and secrets of a client,” and to “avoid . . . even the appearance of professional impropriety.” Id. at 886. These canons were adopted by the Wisconsin Supreme Court in its Rules of Professional Conduct For Attor-
Under the substantial relationship test, disqualification does not require finding that a breach of ethical standards or client confidences has occurred, but only that the attorney has undertaken representation which is adverse to the interests of a former client. Id. at 892. We apply the substantial relationship test in attorney disqualification cases where the attorney represents a рarty in a matter in which the adverse party is the attorney‘s former client. We conclude that it is appropriate to apply that test to the appointment of a guardian ad litem in incompetency cases because the same principles of confidentiality and propriety apply.
We further conclude that a substantial relationship exists between an involuntary commitment under
The guardian ad litem shall be an advocate for the best interests of the proposed ward or alleged incompetent as to guardianship, protective placement and protective services. The guardian ad litem shall function independently, in the same manner as an attorney for a party to the action, and shall consider, but shall not be bound by, the wishes of the proposed ward or alleged incompetent or the positions of others as to the best interests of the proposed ward or alleged incompetent . . . .
We do not see how an attorney can move easily from adversary counsel to the quasi-advocacy role mandated by
The Wisconsin Supreme Court has recently examined the role of the guardian ad litem under
We agree with Judge Doyle‘s observation that a lawyer‘s representation of an interest adverse to that of a former client in a matter substantially related to that involved in the former representa-
tion “would seem a breach of trust in the lay sense of justice,” and that proof that no confidential information actually had been disclosed “would not remove the taint of disloyalty.”
141 Wis. 2d at 890-91 (citing Marketti v. Fitzsimmons, 373 F. Supp. 637, 639 (W.D. Wis. 1974)).
The county argues that the trial court correctly found that, although there was a potential conflict of interest, the facts in the instant case did not present a conflict and therefore the trial court appropriately exercised its discretion when it denied Tamara‘s motion to disqualify Alexander. We believe the trial court acted under an error of law when it concluded that Alexander could serve as guardian ad litem if the court was satisfied that there was no actual conflict of interest. Had the trial court applied the “substantial relationship” test we believe the court would have reached a contrary conclusion.
The heart of the substantial relationship test is the presumption that a client will disclose confidences to his or her attorney. While there is language in some federal cases to the contrary, the presumрtion is considered irrebuttable because of the impropriety of testimonial inquiry into conversations between attorney and client to determine whether actual confidences were disclosed.
Berg, 141 Wis. 2d at 891 n.5 (citing Analytica Inc. v. NPD Research Inc., 708 F.2d 1263, 1269 (7th Cir. 1983); Novo Terapeutisk, Etc. v. Baxter Travenol Labs., 607 F.2d 186, 191-92 (7th Cir. 1979) (en banc) (the federal rule “clearly contemplates an irrebuttable presumption“)).
By the Court.—Order reversed and cause remanded with directions.
EICH, C.J. (dissenting). The majority concludes that a per se conflict of interest arises from Dane County‘s practice of appointing a party‘s attorney as his or her guardian ad litem when involuntary commitment proceedings are converted to temporary guardianship proceedings. It so concludes because it believes that the “duty” of an attorney appointed to represent a client in commitment proceedings is to invariably “resist” both commitment for treatment and the conversion of the proceedings to a temporary guardianship/protective placement proceeding: “to argue zealously on [her] behalf . . . that she was not incompetent and was not a fit subject for guardianship or placement.” Majority op. at 784.
I do not agree that in representing the subject of commitment proceedings an attorney‘s sole and unalterable duty is to carry the fight against commitment for treatment, or against conversion of the proceedings to protective placement proceedings, at all costs and regardless of the facts. We impose no such absolute resist-at-all-cost duty on lawyers representing persons charged with crimes. If we did, there would be no such thing as a plea in the trial court or an Anders no-merit report on an appeal. Nor do I believe that the designa-
As the county points out, SCR 20:1.14 (Law. Co-op. 1992), while stating that an attorney representing a client under a disability should, “as far as reasonably possible, maintain a normal client-lawyer relationship with the client,” also provides that when the attorney “reasonably believes . . . the client cannot . . . act in [his or her] own interest,” the attorney may seek the appointment of a guardian “or take other protective action with respect to [the] client.” The rule thus presupposes that there will be occasions in the course of representing a client with a mental disability that information will come to the lawyer‘s attention indicating that the client requires a guardianship or other protective action. To me, that is inconsistent with the majority‘s “resist, period” characterization of counsel‘s obligation to a client in proceedings such as these.
Disqualification of an attorney on conflict-of-interest grounds is committed to the “broad discretion” of the trial court, “and the scope of our review is limited accordingly.” Berg v. Marine Trust Co., 141 Wis. 2d 878, 887, 416 N.W.2d 643, 647 (Ct. App. 1987). The deference we pay to discretionary decisions of the trial court is well known: we will not find that the court has exсeeded its discretion “if the record shows that discretion was in fact exercised and we can perceive a reasonable basis for [its] decision.” Id. Indeed, we have often said that “[b]ecause the exercise of discretion is so essential to the trial court‘s functioning, we generally look for reasons to sustain discretionary decisions.” Schneller v. St. Mary‘s Hosp., 155 Wis. 2d 365, 374, 455 N.W.2d 250, 254 (Ct. App. 1990), aff‘d, 162 Wis. 2d 296, 470 N.W.2d 873 (1991).
In this case, the trial court determined that no conflict in fact existed because Attorney Alexander hаd had no access to any information that was not otherwise part of the guardianship and protective placement files and that she thus could make an independent recommendation to the court as Tamara P.‘s guardian ad litem. I agree with the county that the record establishes that the trial court did in fact exercise its discretion on the issue and that its decision was one a reasonable judge could reach; and that requires affirmance even if the decision was one with which the appellate court itself would not agree. Burkes v. Hales, 165 Wis. 2d 585, 590-91, 478 N.W.2d 37, 39 (Ct. App. 1991). I would do so here.