Matter of Guardianship of Tamara LP

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 sm Anders no-merit report on an appeal. Nor do I believe that the designa*787tion — without any explanation — of attorneys for parties in commitment proceedings as "adversary counsel," sec. 51.20(3), Stats., imposes such a duty on lawyers appearing in such cases.

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 exceeded 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 *788N.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 had 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.