ACTEC COMMENTARIES ON THE MODEL RULES OF PROFESSIONAL CONDUCT
MRPC 1.14
Client under a Disability.
(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) A lawyer may seek the appointment of a guardian or take other protective action with respect to a client only when the lawyer reasonably believes that the client cannot adequately act in the client's own interest.
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ACTEC COMMENTARY ON MRPC 1.14
Preventive Measures for Competent Clients. As a matter of routine, the lawyer who represents a competent adult in estate planning matters should provide the client with information regarding the devices the client could employ to protect his or her interests in the event of disability, including ways the client could avoid the necessity of a guardianship or similar proceeding. Thus, as a service to a client, the lawyer should inform the client in a general way regarding the costs, advantages and disadvantages of durable powers of attorney, directives to physicians or living wills, health care proxies, and revocable trusts. A lawyer may properly suggest that a competent client consider executing a letter or other document that would authorize the lawyer to communicate to designated parties (e.g., family members, health care providers, a court) concerns that the lawyer might have regarding the client's capacity. In addition, a lawyer may properly suggest that a durable power of attorney include authorization for the attorney-in-fact to waive, on behalf of the client, the lawyer-client and physician-patient duties of confidentiality in appropriate circumstances.
Discretion to Seek Appointment of Guardian for Disabled or Apparently Disabled Clients. A lawyer who reasonably believes that a client is unable to act on his or her own behalf may, but is ordinarily not required to, seek the appointment of a guardian or take other protective action with respect to the client's person and property. See MRPC 1.14(b). In such a case, for example, the lawyer may "seek guidance from an appropriate diagnostician." Comment, MRPC 1.14. In this connection note that as originally proposed MRPC 1.14(b) required the lawyer to take protective action with respect to a client when doing so "is necessary in the client's best interests". The rule was changed to allow lawyer discretion to act when the lawyer "reasonably believes that the client cannot adequately act in the client's own interest". See ABA, Probate and Trust Subcouncil Responds to Kutak Commission, 9 Prob. & Prop. 6, 9 (1981).
Implied Authority to Act in Best Interests of Disabled Client. The lawyer for a client who appears to be disabled may have implied authority to make disclosures and take actions that the lawyer reasonably believes are in accordance with the client's wishes that were clearly stated during his or her competency. If the client's wishes were not clearly expressed during competency, the lawyer may make disclosures and take such actions as the lawyer reasonably believes are in the client's best interests. It is not improper for the lawyer to take actions on behalf of an apparently disabled client that the lawyer reasonably believes are in the best interests of the client.
Note that the opinions of some ethics committees prohibit a lawyer from seeking the appointment of a guardian or conservator for an apparently disabled client or seeking the advice of a physician regarding the condition of such a client. The prohibition is premised on the lawyer's duty of confidentiality to the client. However, the preferable view is expressed in ABA Informal Opinion 89-1530 (1989):
[T]he Committee concludes that the disclosure by the lawyer of information relating to the representation to the extent necessary to serve the best interests of the client reasonably believed to be disabled is impliedly authorized within the meaning of Model Rule 1.6. Thus, the inquirer may consult a physician concerning the suspected disability. [Emphasis added.]
Testamentary Capacity. If the testamentary capacity of a client is uncertain, the lawyer should exercise particular caution in assisting the client to modify his or her estate plan. The lawyer generally should not prepare a will or other dispositive instrument for a client who the lawyer reasonably believes lacks the requisite capacity. On the other hand, because of the importance of testamentary freedom, the lawyer may properly assist clients whose testamentary capacity appears to be borderline. In any such case the lawyer should take steps to preserve evidence regarding the client's testamentary capacity.
In cases involving clients of doubtful testamentary capacity, the lawyer should consider, if available, procedures for obtaining court supervision of the proposed estate plan, including so-called substituted judgment proceedings.
Lawyer Retained by Guardian or Conservator for Disabled Person. The lawyer retained by a fiduciary for a disabled person, including a guardian, conservator, or attorney-in-fact, stands in a lawyer-client relationship with respect to the fiduciary. A lawyer who is retained by a fiduciary for a disabled person, but who did not previously represent the disabled person, represents only the fiduciary. Nevertheless, in such a case the lawyer for the fiduciary owes some duties to the disabled person. See, ACTEC Commentary on MRPC 1.2 (Scope of Representation). This approach is reflected in the Comment to MRPC 1.14: "If the lawyer represents the guardian as distinct from the ward and is aware of the guardian acting adversely to the ward's interest, the lawyer may have an obligation to prevent or rectify the guardian's misconduct. See Rule 1.2(d)".
Disabled Person Was Client Prior to Disability. A lawyer who represented a now disabled person as a client prior to the appointment of a fiduciary may be considered to continue to represent the disabled person. Although incapacity may prevent a disabled person from entering into a contract or other legal relationship, the lawyer who represented the disabled person prior to incapacity may appropriately continue to meet with and counsel him or her. Whether the disabled person is characterized as a client or a former client, the lawyer for the fiduciary owes some continuing duties to him or her. See Ill. Advisory Opinion 91-24 (1991) (summarized in the Annotations following the ACTEC Commentary on MRPC 1.6 (Confidentiality of Information)).
Wishes of Disabled Person. A conflict of interest may arise if the lawyer for the fiduciary is asked by the fiduciary to take action that is contrary either to the previously expressed wishes of the disabled person or to the best interests of the disabled person, as the lawyer believes those interests to be. The lawyer should give appropriate consideration to the currently or previously expressed wishes of a disabled person.
Lawyer May Take Action in Best Interests of Disabled Person. If the lawyer believes that the best interests of the disabled person requires representation by an independent party, the lawyer may suggest to family members or to an appropriate tribunal that a guardian ad litem or another lawyer be appointed for the disabled person.
ANNOTATIONS
(Refer to Caveat)Cases:
Arizona:
Fickett v. Superior Court, 558 P.2d 988 (Ariz. App. 1976). In this malpractice action the court held that the lawyer for a guardian owed fiduciary duties to the guardian's ward. Privity of contract between the lawyer and the ward was not required in order for the ward to pursue a claim for negligence against the lawyer for the guardian.
District of Columbia:
Donnelly v. Parker, 486 F.2d 402 (D.C. Cir. 1973). This case holds that where the physical and mental condition of a plaintiff in civil litigation might be the pivot upon which much of the case on its merits would turn, counsel acting on behalf of the plaintiff should be permitted to continue his representation until the question of the plaintiff's alleged incapacity could suitably be determined in the trial court. Therefore, the appellate court refused to enter an order requiring counsel for the plaintiff to prove his continuing authority to represent the plaintiff whose capacity defendant had put into question.
Florida:
Florida Bar v. Betts, 530 So. 2d 928 (Fla. 1988). In this case an attorney was publicly reprimanded for his actions in preparing two codicils to the will of his client at a time when the client was in a rapidly deteriorating physical and mental state. In the first codicil the testator removed his daughter and son-in-law as beneficiaries. The lawyer spoke with his client several times in an effort to persuade him to reinstate his daughter as a beneficiary. Subsequently, the lawyer prepared a second codicil to reach this result. However, when the codicil was presented to the testator, he was in a comatose state. The lawyer did not read the second codicil to the testator, the testator made no verbal response when the lawyer presented the codicil to him, and the lawyer had the codicil executed by an X that the lawyer marked on the document with a pen he had placed and guided in the testator's hand. The court observed:
Improperly coercing an apparently incompetent client into executing a codicil raises serious questions both of ethical and legal impropriety, and could potentially result in damage to the client or third-parties. It is undisputed that [Lawyer] did not benefit by his action and was merely acting out of his belief that the client's family should not be disinherited. Nevertheless, a lawyer's responsibility is to execute his client's wishes, not his own. 530 So. 2d at 929.
Vignes v. Weiskopf, 42 So. 2d 84 (Fla. 1949). The Supreme Court of Florida here held that it was proper for a lawyer to prepare and supervise the execution of a codicil for a client who was "incurably ill and was in such pain that a great deal of medication to relieve him of his suffering was being administered, such as phenobarbital, novatrine, demerol, cobra venom, and so forth." The court stated that:
We are convinced that the lawyer should have complied as nearly as he could with the testator's request, should have exposed the true situation to the court, which he did, and should have then left the matter to that tribunal to decide whether in view of all facts surrounding the execution of the codicil it should be admitted to probate.
Had the attorney arrogated to himself the power and responsibility of determining the capacity of the testator, decided he was incapacitated, and departed, he would indeed have been subjected to severe criticism when,
after the testator's death, it was discovered that because of his presumptuousness the last-minute effort of a dying man to change his will had been thwarted.
42 So. 2d at 86
Michigan:
In re Makarewicz, 516 N.W.2d 90 (Mich. App. 1994). A lawyer who was hired by a minor's conservator on a contingent fee basis to pursue the minor's claim does not, after discharge by conservator, have standing to petition the court to replace the conservator and require acceptance of settlement. The Presiding Judge directed the Clerk of the Court to forward a copy of the decision to Michigan's Attorney Grievance Committee. The opinion endorses the approach taken in the Comment to Rule 1.14:
Under MRPC 1.14(b), a lawyer may take protective action with respect to a client only when the lawyer reasonably believes that the client cannot adequately act in the client's own interests. The Comment accompanying MRPC 1.14 suggests that where a legal representative has already been appointed for the client, the lawyer ordinarily should look to the representative for decisions on behalf of the client. However, if the lawyer represents the guardian as distinct from the ward, and is aware that the guardian is acting adversely to the ward's interest, the lawyer may have an obligation to prevent or rectify the guardian's misconduct. 516 N.W.2d at 91-92.
Mississippi:
Duggins v. Guardianship of Washington, 632 So. 2d 420 (Miss. 1994). In this action the guardian for a minor who had sustained an eye injury recovered from a lawyer settlement funds that had been embezzled by counsel who had been associated to pursue a medical malpractice claim. Trial counsel had been associated with the consent of the minor's mother who had been appointed guardian and his father. After the case was settled the trial counsel embezzled the settlement proceeds. Original counsel was held to be a joint venturer who was vicariously liable for the embezzled funds, particularly in light of defendant's "negligence and inaction in investigating [trial counsel's] suspicious conduct, which allowed the guardianship to be stripped of all its assets."
New Jersey:
Lovett v. Estate of Lovett, 593 A.2d 382 (N.J. Super. 1991). The court stated that, "[a]lthough I agree that a lawyer has an obligation not to permit a client to execute documents if he or she believes that client to be incompetent, I am not satisfied that the proofs establish that in 1982 [Client] was incompetent or that [Lawyer] should have concluded that he was". 593 A.2d at 386.
In the Matter of M.R., 638 A.2d 1274 (N.J. 1994). This case reviews the duties of the lawyer for a developmentally disabled person in the context of an action brought by one of the person's divorced parents to prevent her from living with the other parent. The New Jersey Supreme Court concluded that the developmentally disabled person's choice of where to live should be honored if she is competent. "If not, the court should determine the place of residence according to M.R.'s best interests. Her attorney's role should be to advocate her choice, as long as it does not pose unreasonable risks for her health, safety, and welfare. If the court concludes that M.R. is incapable of deciding where to live, it may appoint a guardian ad litem to represent her best interests." 638 A.2d at 1286.
Washington:
In re Fraser, 523 P.2d 921 (Wash. 1974). In this case the court held that the lawyer for a guardian should not "be faulted for refusing to abandon the ward at the guardian's request." 523 P.2d at 928. The court stated:
[T]he attorney owes a duty to the ward, as well as to the guardian. Since the guardian in this case manifested a greater interest in herself than in serving the interest of the ward, it would have been hazardous to the interests of the ward to turn the assets of her small estate over to the guardian. Id.
Graham v. Graham, 240 P.2d 564 (Wash. 1952). In a dissolution proceeding where the husband sought to eliminate his wife's visitation rights (granted under a prior decree) because of an alleged change in the wife's mental and nervous condition, the Supreme Court of Washington held that the wife was entitled to a full and fair hearing and an opportunity to defend against the appointment of a guardian ad litem to represent her.
Morgan v. Roller, 794 P.2d 1313 (Wash. App. 1990). In this malpractice action brought by the beneficiaries under a will to recover from the scrivener of the will the costs of successfully defending a will contest, the court held that the scrivener of the will was not required to inform intended beneficiaries under the will of his view, based on subsequent contacts with the testator, that she was incompetent at the time the will was executed.
Ethics Opinions:
ABA:
Formal Op. 96-404 (1996). "Because the relationship of client and lawyer is one of principal and agent, principles of agency law might operate to suspend or terminate the lawyer's authority to act when a client becomes incompetent . . ." The opinion goes on to observe that the lawyer in question may consult with the client's family, and may even petition the court for the appointment of a guardian, but may not represent a third party petitioning for appointment. It is not impermissible for the lawyer to support the appointment of a guardian who the lawyer expects will retain the lawyer as counsel.
Alabama:
Ala. Op. 87-137 (1987). A lawyer whose client has become incompetent may file a petition for appointment of a guardian. A lawyer is "required to do so" if the lawyer believes it is in the client's best interests.
Ala. Op. 90-12 (1990). A lawyer who believes that a client lacks capacity to act in the client's own interests may divulge confidential information to an independent diagnostician without the consent of the client.
Alaska:
Alaska Op. 87-2 (1987). The discharged lawyer for a conservator could ethically disclose to the ward's personal lawyer that the conservator was not acting in the ward's interests.
Arizona:
Ariz. Op. 86-13 (1986). A lawyer who was appointed as guardian ad litem for a minor may also serve as lawyer for the minor so long as there is no conflict of interest. If a conflict exists, the lawyer must request the court to appoint a new guardian ad litem. The lawyer may not continue to act as a guardian and ask that a new lawyer be appointed to represent the minor. If a new guardian is appointed, the lawyer should follow the client's wishes although contrary to the guardian's wishes. If the guardian believes that the minor's wishes are not in the minor's best interests, the matter should be presented to the court.
California:
Cal. Formal Op. 1989-112 (1989). Without the consent of the client, a lawyer may not initiate conservatorship proceedings on the client's behalf. although the lawyer has concluded it is in the best interests of the client. Initiation of the proceeding would breach confidences of the client and constitute a conflict of interest.
L.A. Op. 450 (1988). Initiating a conservatorship proceeding for a present or former client without the client's authorization involves an impermissible conflict of interest.
San Diego Op. 1990-3 (1990). The portion of this opinion dealing with the capacity of a client advised that, "a lawyer must be satisfied that the client is competent to make a will and is not acting as a result of fraud or undue influence." The opinion continues, suggesting that once an issue of capacity is raised in the attorney's mind it must be resolved. "The attorney should schedule an extended interview with the client without any interested parties present and keep a detailed and complete record of the interview. If the lawyer is not satisfied that the client has sufficient capacity and is free of undue influence and fraud, no will should be prepared. The attorney may simply decline to act and permit the client to seek other counsel or may recommend the immediate initiation of a conservatorship."
Connecticut:
Conn. Op. 86-11 (1986). A lawyer serving as a testamentary trustee may institute an involuntary conservatorship proceeding for an improvident beneficiary provided doing so would not involve the disclosure of information obtained by the lawyer while acting as the beneficiary's attorney.
Florida:
Attorney General Op. 96-94 (1996). Since a person adjudicated incapacitated is the intended beneficiary of the guardianship, an attorney who represents a guardian of such a person and who is compensated from the ward's estate for such services owes a duty of care to the ward as well as to the guardian.
Illinois:
Ill. Op. 91-24 (1991). This opinion is discussed in the Annotations following the ACTEC Commentary on MRPC 1.6 (Confidentiality of Information).
Michigan:
Mich. RI 76 (1991). A lawyer may seek the appointment of a guardian or take other protective action with respect to a client with a history of mental illness who has refused to accept a personal injury settlement or pay for its appeal if the lawyer reasonably believes the client cannot adequately act in the client's own interest. Such action does not involve a conflict of interest.
Mich. RI 176 (1993). The adverse interests of a mother and daughter preclude the same lawyer from representing both of them in connection with the revocation of a durable power of attorney and petitioning for the appointment of a guardian for the mother.
Nebraska:
Neb. Op. 91-4 (1991). A lawyer who reasonably believes that a client is not able to act in the client's best interests may disclose confidential information to the extent necessary to protect the client's best interests.
New York:
Nassau County Op. 90-17 (1990). A lawyer may not reveal to the relatives of a client the lawyer's observations regarding the client's competency; consultations with the client are confidential.
New York City Op. 1987-7 (1987). A lawyer may disclose confidential information in seeking the appointment of a guardian if that is necessary to protect the client's interests. Request should be made in camera and should be filed under seal.
Oregon:
Or. Op. 1991-41 (1991). A lawyer who has represented Client for many years and has begun to observe extraordinary behavior by Client that is contrary to Client's best interests, may take action on behalf of Client. This opinion states that, "[a]s the language of DR 7-101(C) makes clear, an attorney in such a situation must reasonably be satisfied that there is a need for protective action and must then take the least restrictive form of action sufficient to address the situation. If, for example, Client is an elderly individual and Attorney expects to be able to end the inappropriate conduct simply by talking to Client's spouse or child, a more extreme course of action such as seeking the appointment of a guardian would be inappropriate."
Pennsylvania:
Pa. Op. 91-36 (1991). A lawyer who is convinced that disclosure is necessary may disclose confidential information to the extent necessary to protect the client's interests, including seeking a guardianship or other protective measures.
Pa. Op. 90-89 (1990). If the lawyer believes a client is incompetent, the information must remain confidential unless the lawyer determines it is necessary to pursue the appointment of a guardian.
Pa. Op. 89-90 (1989). A lawyer for a competent client who decided to refuse medical treatment for progressively disabling disease may serve both as her lawyer and as her guardian ad litem.
Pa. Op. 88-132 (1988). A lawyer must honor an incompetent client's wish to enter into a property settlement agreement although the lawyer believes it is not in best interests of the client. If the lawyer cannot advocate the client's position, the lawyer should withdraw, citing disagreement with client, not the client's incompetence.
Rhode Island:
R.I. Op. 88-15 (1988). The lawyer for the guardian of a minor's estate, who sent the guardian six letters over 15 months requesting client to file accounts, without compliance by client, may withdraw based on client's conduct making representation difficult.
Articles:
Allee, Representing Older Persons: Ethical Dilemmas, Prob. & Prop. 37 (Jan/Feb. 1988)
Donaldson, The Ethical Considerations of Representing the Elderly, 130 Tr. & Est. 18 (July 1991)
Kruse, "My Basement is Filled with Pornography," 12 NAELA Quarterly 33 (Winter 1999)
Whitton, Durable Powers of Attorney as a Hedge Against Guardianship: Should the Attorney-at-Law Accept Appointment as Attorney-in-Fact?, 2 Elder L. J. 39 (1994)
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