Legal Ethics Opinion No. 1463

Appearance of Impropriety--Public Lawyer--Part-Time
Commonwealth's Attorney or Assistant Commonwealth's Attorney
Continuing to Serve as Guardian Ad Litem in Juvenile and Domestic
Relations Court 

You have presented a hypothetical situation in which an attorney
serves as a part-time Assistant Commonwealth's Attorney and also
maintains a private practice.  The Assistant prosecutes in
Juvenile and Domestic Relations Court.  The Commonwealth
Attorney's office does not provide legal services or advice to
the Department of Social Services.  In his capacity as a private
practitioner, the Assistant has been asked to serve as a guardianad litem in proceedings in the Juvenile and Domestic Relations
Court.

You have asked the committee to opine whether, under the facts of
the inquiry, it would be proper for a part-time Assistant
Commonwealth's Attorney or part-time Commonwealth's Attorney to
serve as a guardian ad litem in Juvenile and Domestic Relations
Court in the two following situations: (1) The Department of
Social Services (DSS) has no interest or involvement in the case
other than the preparation of a home study; and (2) The DSS is an
active player in the case, i.e., the DSS initiates the
proceedings for which the guardian ad litem is named. 

The appropriate and controlling Disciplinary Rules related to
your inquiry are DR 8-101(A)(2) which states that a lawyer who
holds public office shall not use his public position to
influence, or attempt to influence, a tribunal to act in favor of
himself or of a client; and DRs 9-101(B) and (C) which provide
respectively that a lawyer shall not accept private employment in
a matter in which he had substantial responsibility while he was
a public employee and that a lawyer shall not state or imply that
he is able to influence improperly or upon irrelevant grounds any
tribunal, legislative body, or public official.

Irrespective of whether or not an attorney-client relationship
arises between the child and the guardian ad litem, the committee
is of the opinion that it would not be improper for a part-time
Assistant Commonwealth's Attorney or part-time Commonwealth's
Attorney to act in such a capacity in a Juvenile and Domestic
Relations Court proceeding since there is no apparent conflict
between the government and the child.   The committee cautions
that there should be (l) no effort to use the public office, or
any implication that the public office will or may be used, to
influence the Juvenile and Domestic Relations Court's disposition
in the proceeding; (2) as pertains to the parties or their
witnesses, no pending criminal charges or investigations known to
the Assistant Commonwealth's Attorney or Commonwealth's Attorney;
and (3) no involvement in criminal matters relating to such
parties or witnesses for which the attorney has presently or
previously had substantial responsibility.  See LEOs #696, #600. 

As to the variations on the question you raise, the committee is
of the view that the same conclusion is reached whether the DSS
initiates the proceedings or has no interest in the case other
than the preparation of a home study. 
 
Committee Opinion
June 9, 1992