                  IN THE COURT OF APPEALS OF IOWA

                                 No. 17-0785
                           Filed November 8, 2017

IN RE THE MATTER OF THE GUARDIANSHIP
AND CONSERVATORSHIP OF ROBERT KENNETH
FAGAN, Ward

ROBERT KENNETH FAGAN,
   Appellant.
________________________________________________________________

      Appeal from the Iowa District Court for Polk County, Craig E. Block,

Associate Probate Judge.



      A ward appeals from an order appointing a guardian and conservator

pursuant to Iowa Code chapter 633 (2017). REVERSED AND REMANDED.



      Hope Wood, Des Moines, for appellant.

      Jami J. Hagemeier of Williams & Hagemeier, P.L.C., Des Moines, for

appellee.



      Considered by Vaitheswaran, P.J., and Potterfield and McDonald, JJ.
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MCDONALD, Judge.

       Robert Kenneth Fagan is a seventy-one-year-old veteran challenging the

district court’s order to appoint him a permanent guardian and conservator. On

appeal, Fagan does not challenge the decision to appoint a guardian or

conservator, generally.      Instead, he contends a limited guardianship or

conservatorship would be more appropriate.         See Iowa Code § 633.551(3)

(2017) (“In determining whether a guardianship or conservatorship is to be

established, modified, or terminated, the district court shall consider if a limited

guardianship or conservatorship pursuant to section 633.635 or 633.637 is

appropriate. In making the determination, the court shall make findings of fact to

support the powers conferred on the guardian or conservator.”).         We do not

reach the merits of Fagan’s argument, however, because we conclude remand

and rehearing is necessary due to Fagan not receiving representation during the

course of this proceeding.

       In guardianship and conservatorship proceedings, “the proposed ward is

entitled to representation.” Iowa Code §§ 633.561 .575. “Upon the filing of the

petition, the court shall appoint an attorney to represent the proposed ward, set a

hearing on the petition, and provide for notice of the appointment of counsel and

the date for hearing.”    Iowa Code §§ 633.561(1)(a), .575(1)(a).        The Code

provides an appointed attorney shall do the following:

       a. Ensure that the proposed ward has been properly advised of the
       nature and purpose of the proceeding.
       b. Ensure that the proposed ward has been properly advised of the
       ward’s rights in a guardianship proceeding.
       c. Personally interview the proposed ward.
       d. File a written report stating whether there is a return on file
       showing that proper service on the proposed ward has been made
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       and also stating that specific compliance with paragraphs “a”
       through “c” has been made or stating the inability to comply by
       reason of the proposed ward’s condition.
       e. Represent the proposed ward.
       f. Ensure that the guardianship procedures conform to the statutory
       and due process requirements of Iowa law.

Iowa Code §§ 633.561, 633.575.

       “The right to representation by counsel is not a formality.       It is not a

grudging gesture to a ritualistic requirement. It is of the essence of justice.” Kent

v. United States, 383 U.S. 541, 561 (1966).         In this case, the district court

appointed an attorney for Fagan. However, the attorney did not represent Fagan

as his counsel throughout the proceedings.         Instead, the attorney acted as

Fagan’s guardian ad litem.      She appeared as the guardian ad litem in the

proceedings.    She filed a guardian ad litem report recommending the court

establish a guardianship and conservatorship in the best interest of Fagan. This

was contrary to Fagan’s desire to live independently and manage his own affairs.

At the hearing on the guardianship and conservatorship, the district court referred

to the appointed attorney as Fagan’s guardian ad litem. At the hearing, the

appointed attorney did not act as Fagan’s counsel. She did not subject the

petitioner’s case to adversarial testing. She did not advocate for Fagan’s desire

to live without a guardian and conservator. She did not advocate for a limited

guardianship.

       Iowa law is clear. The role of guardian ad litem is separate and distinct

from the role of an attorney for the purposes of guardianship and conservatorship

proceedings. See Estate of Leonard ex rel. Palmer v. Swift, 656 N.W.2d 132,

142 (Iowa 2003); In re Guardianship of B.K., No. 03-0865, 2004 WL 792755, at
                                        4


*1 (Iowa Ct. App. Apr. 14, 2004) (noting that Iowa Code section 663.561 provides

for the appointment of an attorney, not a guardian ad litem). “In summary, the

guardian ad litem advocates for the best interests of the ward, whereas an

attorney advances the wishes of the ward.” Estate of Leonard, 656 N.W.2d at

142 (further noting that the court can determine whether an attorney acted as the

ward’s attorney or guardian ad litem on appeal based on the attorney’s conduct).

      This court has recognized counsel’s failure to act as counsel for the

proposed ward constitutes reversible error:

      Iowa Code section 633.561(1)(a) mandated appointment of an
      attorney to represent Griesinger upon the filing of the petition. No
      one assumed the role as Griesinger’s attorney, so we must reverse
      the district court’s finding that Griesinger was unable to make
      decisions concerning her person and affairs, and remand the case
      back to the district court to conduct another hearing on the petition,
      this time with appointed counsel to represent and advise
      Griesinger.

In re Guardianship of Griesinger, 804 N.W.2d 527, 530 (Iowa Ct. App. 2011).

      It is of no moment that Fagan’s counsel failed to preserve the issue in

district court or present the issue on appeal. Fagan’s appellate counsel is the

same counsel that represented him at the district court.        Appellate counsel

operated under an actual conflict of interest in representing Fagan in the district

court and is now operating under an actual conflict of interest in representing

Fagan before this court. Caselaw recognizes that where counsel is acting under

an actual conflict of interest, we are required to reach the issue sua sponte

without regard to whether the claim was preserved or presented for appellate

review. See In re T.P., 757 N.W.2d 267, 272–73 (Iowa Ct. App. 2008); In re A.T.,

744 N.W.2d 657, 660 (Iowa Ct. App. 2007) (stating “[e]ven if it was not
                                          5


preserved, the lack of an objection to an alleged conflict of interest does not

preclude consideration of the issue on appeal”).         For example, in Wood v.

Georgia, 450 U.S. 261, 274 (1981), the Supreme Court vacated a criminal

conviction when it determined, on its own motion, trial counsel was operating

under a potential conflict of interest. The Court reasoned that where there is a

right to counsel “there is a correlative right to representation that is free from

conflicts of interest.” Wood, 450 U.S. at 272. The Court further reasoned it was

required to raise the issue on its own because “[t]he party who argued the appeal

and prepared the petition for certiorari was the lawyer on whom the conflict-of-

interest charge focused.     It is unlikely that he would concede that he had

continued improperly to act as counsel.” Id. at 266 n.5. In State v. Watson, 620

N.W.2d 233, 237 (Iowa 2000), the Iowa Supreme Court held the court has a duty

to raise and address conflicts of interest where the court knew or should have

known of the conflict. “Such representation . . . invites disrespect for the integrity

of the court.” State v. Smith, 761 N.W.2d 63, 69 (Iowa 2009) (quoting State v.

Vanover, 559 N.W.2d 618, 626 (Iowa 1997))).

       Given the ongoing nature of counsel’s actual conflict of interest with her

client, to protect Fagan’s statutory right to counsel and the integrity of this court,

we decide the issue sua sponte. Pursuant to Wood, Watson, and Griesinger, we

vacate the order establishing a permanent guardianship and conservatorship and

remand this matter for the appointment of counsel and further proceedings.

       REVERSED AND REMANDED.

       Potterfield, J., concurs; Vaitheswaran, P.J., dissents.
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VAITHESWARAN, Presiding Judge. (dissents)

       I respectfully dissent.    The probate court appointed an attorney “to

represent Robert Kenneth Fagan, the proposed Ward.” The appointed attorney

misconstrued her role and, without objection, acted as guardian ad litem for the

proposed ward. While I agree with the majority that the roles of a ward’s attorney

and guardian ad litem are distinct, I disagree that the conflict of interest

generated by an attorney’s dual representation may be raised and decided on

the appellate court’s own motion absent an objection in the probate court or

argument by counsel on appeal.

       In In re Guardianship of Griesinger, 804 N.W.2d 527 (Iowa Ct. App. 2011),

the issue of dual representation was raised in the district court. The court initially

appointed the same attorney as guardian ad litem and attorney. Griesinger, 804

N.W.2d at 528. A guardian was appointed with the endorsement of the guardian

ad litem. Id. The guardian ad litem filed a notice of appeal on behalf of the ward

but noted a conflict in her roles. Id. As a result, the district court ordered the

appointment of separate appellate counsel for the ward and ordered the attorney

serving as guardian ad litem to continue in that role. Id. On appeal, the ward

expressly raised the issue of whether the district court erred in appointing the

same attorney to serve as her attorney and as guardian ad litem. Id. at 529.

Error on the question of dual representation was preserved and not waived.

       In In re T.P., the court stated, “in attorney disqualification matters the

failure to raise a timely objection may result in waiver.” 757 N.W.2d 267, 272

(Iowa Ct. App. 2008) (citations omitted). The court stated an alleged conflict

based on an attorney’s prior role as guardian ad litem was waived and not
                                           7

preserved in the absence of an objection. Id. at 273. The court nonetheless

considered the issue under an ineffective-assistance-of-counsel rubric, as

requested on appeal. Id. The court relied on In re J.P.B., 419 N.W.2d 387, 390

(Iowa 1988), which considered a dual representation claim in that context. In this

case, no one raised the dual representation concern either directly or as an

ineffective-assistance-of-counsel claim.

      In In re A.T., this court concluded the dual representation issue raised by a

party on appeal “was properly preserved for review.” 744 N.W.2d 657, 660 (Iowa

Ct. App. 2007). Alternatively, the court cited to opinions raising the issue in an

ineffective-assistance context.   Id.   Again, the issue was preserved and not

waived on appeal.

      In In re Guardianship of B.K., this court addressed an ineffective-

assistance-of-counsel claim based on an attorney’s dual roles. No. 03-0865,

2004 WL 792755, at *5 (Iowa Ct. App. Apr. 14, 2004). The court reiterated that

“even if an actual conflict or a substantial possibility of an actual conflict is

demonstrated, prejudice will not be presumed.” Id. (citing J.P.B., 419 N.W.2d at

392). The court found no breach and no prejudice. Here, as noted, no one

raised the dual representation issue as an ineffective-assistance claim.

      In In re Estate of Andrews, No. 09-1418, 2013 WL 530580, at *4 (Iowa Ct.

App. Feb. 13, 2013), we stated, “The question of [the attorney’s] role or roles and

the question of whether he had a conflict of interest were never, however,

presented to or passed upon by the probate court.” We concluded error was not

preserved. Andrews, 2013 WL 530580, at *4.
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       I recognize certain judgments entered without counsel are void, and void

judgments are subject to attack at any time. See Garcia v. Wibholm, 461 N.W.2d

166, 170 (Iowa 1990); In re S.P., 672 N.W.2d 842, 846 (Iowa 2003). But the

ward had counsel, albeit one who may have acted in two roles. The fact that he

had an attorney rendered an attack only voidable rather than void. See Garcia,

461 N.W.2d at 170. Again, in my view, an objection needed to be made in the

probate court or the issue needed to be brought to our attention on appeal as an

ineffective-assistance claim. But cf. In re J.V., 464 N.W.2d 887, 891-92 (Iowa Ct.

App. 1990) (finding no ineffective assistance but stating in dicta it could “evaluate

the performance of the guardian ad litem sua sponte if necessary” and

proceeding to provide guidance on a guardian ad litem’s role), overruled on other

grounds by In re P.L., 778 N.W.2d 33, 40 (Iowa 2010).

       Because counsel was appointed by the probate court, no one objected to

the manner in which counsel performed her duties, no one raised the issue of a

conflict in roles on appeal, and the judgment entered by the district court was not

void for lack of representation, I would find the issue of counsel’s dual

representation was not preserved for our review and was waived. Accordingly, I

would affirm the judgment of the probate court.

Summary: Because no one objected to the conflict of interest generated by
counsel’s dual representation in probate court, no one raised the issue as an
ineffective-assistance claim on appeal, and the judgment entered by the district
court was not void for lack of representation, the issue was not preserved and
was waived.
