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Ethics Advisory Opinion 05-11

April 13, 2005

South Carolina Bar Ethics Advisory Opinion 05-11

RULES 1.7, 1.14 and 1.16

Date: July 15, 2005

Facts
Attorney has an estate planning client, Mrs. Smith. Due to Mrs. Smith’s incapacity, the probate court has appointed her daughter, Mrs. Jones, as conservator. Mrs. Smith has left South Carolina. Mrs. Jones lives outside South Carolina. The court has retained jurisdiction. Attorney has received requests from Mrs. Smith and Mrs. Jones requesting the legal file. Attorney has suggested to Mrs. Jones that she request an order from the court which would order the attorney to turn over the file or that new counsel be secured to represent Mrs. Smith so that the file can be turned over to a new lawyer. Neither Mrs. Smith or Mrs. Jones has responded to any of those suggestions.

Question
May Attorney turn over the legal file to either Mrs. Smith or Mrs. Jones?

Summary
If an attorney reasonably believes that the client can adequately act in her interest, the attorney should withdraw from representation and return the file to the client within a reasonable time so as not to prejudice the client. If a guardian has been appointed for the client, the attorney should consult with the guardian, after attempting to communicate with client concerning the termination. If a guardian has not been appointed for client, and attorney reasonably believes that the client cannot adequately act in their own interest concerning attorney’s termination, the attorney may seek the appointment of a guardian or take other protective action.

Opinion
While not clear from the facts presented, we assume that the client has discharged attorney. Under Rule 1.16(a)(3) the lawyer shall withdraw from representation when discharged by the Client. In Ethics Advisory Opinion 92-37 we advised that, under Rule 1.16(d) following termination of representation, the lawyer upon request should deliver the file to the client within a reasonable time so as not to prejudice the interests of the client and advised the manner of return. However, the Official Comments to Rule 1.16(d) provide as follows: “ If the client is mentally incompetent, the client may lack the legal capacity to discharge the lawyer, and in any event the discharge may be seriously adverse to the client’s interests. The lawyer should make special effort to help the client consider the consequences and, in an extreme case, may initiate proceedings for a conservatorship or similar protection for the client. See Rule 1.14.”

Rule 1.14 includes the following provisions.
“(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.”

Rule 1.14(a) requires that the lawyer, representing a client with impaired ability, shall to the extent reasonably possible maintain a normal client-lawyer relationship with the client. Under Rule 1.14(b) the lawyer may seek the appointment of a guardian or take other appropriate action only when the lawyer reasonably believes that the client cannot adequately act in his or her interest. The difficulty as pointed out in the official comments to Rule 1.14 is that the disclosure of the client’s condition could adversely affect the client’s interests, and thus places the lawyer in an unavoidably difficult position. The ABA Committee on Ethics and Professional Responsibility stated that Rule 1.14 (b) creates a narrow exception to the normal responsibilities of a lawyer to his client, in permitting the lawyer to take action that by its very nature must be regarded as adverse to the client. The lawyer’s action under Rule 1.14(b) can precipitate a claim from the client, as in Kutnick v. Fischer, 2004-Ohio-5378 (Ohio App.), where a client albeit unsuccessfully sued attorney for malicious civil prosecution and abuse of process, where attorney sought determination of competency and appointment of guardian under Rule 1.14 (b).
Under Rule 1.16(a)(3) the attorney must withdraw from the case if discharged by his client. If the attorney withdraws, under Rule 1.16(d) attorney must deliver the file to the client as discussed in Opinion 92-37. Under the facts as presented Ms. Smith is the client, not Ms. Jones the Conservator. While title to property vests in the conservator and the conservator may prosecute or defend actions to protect the estate, generally the conservator does not have authority to make personal decisions. Attorney must make a reasonable determination as to whether client can adequately act in her own interest in the matter of attorney’s termination. Under the facts as presented the client apparently has some incapacity and the Probate Court has appointed the daughter as Conservator, while retaining jurisdiction. If the daughter had been appointed guardian of the client, the attorney would ordinarily look to the representative for decisions on behalf of the client as provided in the Comments to Rule 1.14, after attempting to communicate with client. If a guardian has not been appointed, and only if the attorney reasonably believes that the client cannot adequately act in her own interest in the matter of attorney’s termination, attorney may seek the appointment of a guardian or take other protective action. Since the Probate Court has retained jurisdiction, attorney may seek protective action in Probate Court concerning attorney’s termination. If the attorney seeks the appointment of a guardian, this action must be on attorney’s own authority under Rule 1.14 and not on behalf of a third party, which would be prohibited under Rule 1.7(a).

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