In the Estate of CKO

In the Estate of CKO, 2013 MT 72 (March 20, 2013) (5-0) (McKinnon, J.)

Issue: (1) Whether the custodial parents of a minor child have the right to demand that a particular law firm represent the child when the GAL and conservator disagree; (2) whether §§ 37-61-403 and 72-5-427, MCA, are unconstitutional as applied; and (3) whether § 37-61-403 conflicts with the Montana Rules of Professional Conduct.

Short Answer: (1) No; (2) no; and (3) no.


Facts: In July 2007, CKO’s mother was in a car accident. CKO was unborn, but delivered by emergency C-section that day. Soon after, CKO’s parents hired several attorneys to represent CKO and her mother in their claims arising from the accident. In December 2007, one of their attorneys petitioned for a guardian ad litem and conservator for CKO, because a significant settlement was expected. CKO’s parents signed the petition. The mother’s case settled in October 2009. A lawsuit for CKO has not yet been filed, as it is too early for her doctors to provide a medical opinion regarding her prognosis. In November 2011, CKO’s parents retained Morales Law Office to pursue legal action against one of their earlier attorneys, Greg Ingraham, and Edward Engel, for usury arising from personal loans Ingraham and Engel had made to CKO’s parents. The law firm who settled the mother’s case, Viscomi, paid the loans out of the mother’s settlement funds. In December 2011, Morales sent a letter to Viscomi advising them that Morales would henceforth be representing CKO. Viscomi refused to withdraw, stating the GAL and conservator did not believe it was in CKO’s best interests. Morales contended it was CKO’s parents’ prerogative to choose CKO’s counsel.

Procedural Posture & Holding: Morales filed a notice of substitution of counsel with the district court. Viscomi sent a letter to Morales stating that pursuant to § 75-5-427 the GAL and conservator had the authority to make decisions as to CKO’s counsel, and that Morales’ notice was void because it was filed without consent or a court order. The GAL and conservator, Matthew O’Neill, filed a report with the district court stating it was not in CKO’s best interests to change legal counsel. Morales moved to disqualify counsel, asserting natural parents retain the right to choose the law firm representing their minor children regardless of the parents’ prior consent to the appointment of a GAL and conservator. The district court denied the motion to disqualify, holding Morales had no authority to sign documents on CKO’s behalf because he had not complied with § 37-61-403, MCA. CKO’s parents appeal, and the Supreme Court affirms.

Reasoning: (1) Parents’ interest in the care, custody and control of the children is a well-established fundamental liberty interest. It is not an absolute right, however, especially if there is a conflict of interest between the parents and the children. CKO’s parents contend there is no conflict, actual or potential, and that they therefore retain the right to decide what is in their daughter’s best interests. But the parents voluntarily relinquished control of their daughter’s litigation to the GAL and conservator, and have never petitioned for his removal. The appointment of the GAL did not limit his authority to the settlement funds, and CKO’s parents stated in their petition that they wanted a GAL and conservator to oversee her interests in her claims arising from the accident. The parents no longer have the right to determine who should represent CKO in her personal injury claims. (2) The statute requiring either the consent of the attorney and client, or by order of a court after application either the attorney or clients, is not unconstitutional as applied. The parents are not the clients; they failed to obtain the consent of the attorney of record; and they did not apply for a change of counsel. Nor is the conservator statute authorizing a conservator to prosecute or defend claims on behalf of a minor child, and employ attorneys. (3) The Court also holds that § 37-61-403 works in conjunction with Rule 1.16(a)(3) of the Montana Rules of Professional Conduct, and is not unconstitutional.