Ethics Opinions

Opinion 05-05

May 2005

Summary: It would be inappropriate for a lawyer for a long-time client to represent a son seeking to have a guardian appointed for the client when it seems likely that the lawyer will be opposing the client’s wishes and the lawyer would not be able to comply with the consent and reasonableness tests that would permit such representation. Moreover, the lawyer also ought not to represent the son if it seems likely that she will be a necessary witness in a guardianship proceeding.

Facts: Lawyer represents a long-time client whose mental condition has deteriorated. A psychiatrist is recommending guardianship and has asked a son to contact lawyer about representing the son in the guardianship because of lawyer’s long representation of the client. In the recent past, the client has refused to deal with certain important financial and personal care issues and lawyer declined to act further. Lawyer inquires whether she may represent the son in the guardianship proceeding and asks whether it will make a difference if the psychiatrist provides a medical certificate certifying the client’s lack of mental capacity.

Discussion: Rule 1.14 of the Massachusetts Rules of Professional Conduct provides as follows:

(a) When a client’s ability to make adequately considered decisions in connection with the representation is impaired, whether because of minority, mental disability, or for some other reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client.

(b) If a lawyer reasonably believes that a client has become incompetent or that a normal client-lawyer relationship cannot be maintained as provided in paragraph (a) because the client lacks sufficient capacity to communicate or to make adequately considered decisions in connection with the representation, and if the lawyer reasonably believes that the client is at risk of substantial harm, physical, mental, financial, or otherwise, the lawyer may take the following action. The lawyer may consult family members, adult protective agencies, or other individuals or entities that have authority to protect the client, and, if it reasonably appears necessary, the lawyer may seek the appointment of a guardian ad litem, conservator, or a guardian, as the case may be. The lawyer may consult only those individuals or entities reasonably necessary to protect the client’s interests and may not consult any individual or entity that the lawyer believes, after reasonable inquiry, will act in a fashion adverse to the interests of the client. In taking any of these actions the lawyer may disclose confidential information of the client only to the extent necessary to protect the client’s interests.

On the facts presented, a psychiatrist has already concluded that the client needs a guardian. Thus, there are grounds for the lawyer to believe that the client is incompetent. Rule 1.14 urges a lawyer to maintain a lawyer-client relationship with an impaired client as far as possible but also provides that a lawyer may take certain protective action on behalf of an impaired client in specific situations. For example, the lawyer may seek to have a guardian appointed and may reveal confidential information in order to protect a client’s interests. Normally, as the client’s long-time lawyer, the lawyer could represent the client in a guardianship proceeding if the client so desired, although the lawyer is under no obligation to do so. The lawyer has apparently already declined to act on behalf of the client because of the client’s refusal to look after his affairs properly. It is unclear on the facts whether the lawyer can be said to consider herself his attorney even though she has not formally withdrawn from representation.

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2005 Opinions continued

The lawyer is of the opinion that guardianship proceedings should be instituted and the son is ready to do so. He has asked the lawyer to represent him in those proceedings. It is unclear whether the language of Rule 1.14 that “if it reasonably appears necessary, the lawyer may seek the appointment of a . . . guardian” means that in some circumstances a lawyer may represent a family member petitioning for such appointment if the lawyer believes that a guardianship is in the client’s best interests. We do not need to address that issue in this inquiry because there are two reasons why the lawyer may not be able to do so on the facts as presented.

In the first place, the facts indicate that the client may want to contest a guardianship proceeding. By representing the son, the lawyer would be taking a position adverse to his own client, or former client as the case may be, in violation of Rule 1.7 or 1.9. In our view, it would not be possible to meet the consent requirement of those two Rules that would permit adverse representation. The lawyer would not be in a position to rely on consent in the unlikely event it was obtained, given her view of the client’s capacity. Moreover, the lawyer would either be adverse to a current client or adverse to a former client in a substantially related matter and using confidential information about the client’s neglect of financial and personal care matters against him. In addition, the lawyer possesses relevant information as an observer of the client’s conduct that may or may not constitute confidential information.

In addition to the conflict of interest issue, the lawyer may well conclude that she ought not to represent the son for an additional reason. The son knows that the lawyer favors a guardianship provision and apparently also why. In those circumstances, the son may want the lawyer to testify and the lawyer might well be willing to do so if the court permits such testimony. Rule 3.7 deals with that circumstance:

(a) A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness except where:

(1) the testimony relates to an uncontested issue;

(2) the testimony relates to the nature and value of legal services rendered in the case; or

(3) disqualification of the lawyer would work substantial hardship on the client.

(b) A lawyer may act as advocate in a trial in which another lawyer in the lawyer’s firm is likely to be called as a witness unless precluded from doing so by Rule 1.7 or Rule 1.9.

If the lawyer concludes that she is likely to be a necessary witness in the event of litigation over a guardianship, Rule 3.7 is a second reason why she should not represent the son since none of the exceptions would seem to apply.

As stated in the Rules of the Committee on Professional Ethics, this advice is that of a committee without official government status.

This opinion was approved for publication by the Massachusetts Bar Association’s House of Delegates on May 25, 2005.

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