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Ethics Advisory Opinion 06-06

April 13, 2006

South Carolina Bar Ethics Advisory Opinion 06-06

RULES 1.6 and 1.14

Date

April 21, 2006

Facts:

Firm has represented Elderly Gentleman in the past and currently represents him in three matters, two of which are currently in litigation.  Firm has separate fee agreement for each matter, and in each matter separate, identical fee agreements have been signed by Elderly Gentleman and Daughter, his daughter, in whose favor Elderly Gentleman executed a durable power of attorney some years ago.  Firm represented Elderly Gentleman with regard to the execution of the power of attorney and believes he possessed the capacity to validly execute the same at the time he did so, which was after thorough explanation by Firm's sole attorney at the time.  Daughter signed each fee agreement in the currently pending matters as Elderly Gentleman's attorney-in-fact.  Firm explained fee agreement to Elderly Gentleman in each instance before he signed, but Elderly Gentleman basically cannot read or write except to sign his name.  In the probate matter in which Firm represents Elderly Gentleman, Elderly Gentleman nominated his daughter to serve as a co-personal representative with a third party.  Firm is both Elderly Gentleman and Daughter's attorney of record in probate matter.  So long as Elderly Gentleman is alive, Daughter will inherit nothing from estate that is subject of probate matter.  In other litigation matter, Firm is of record solely as Elderly Gentleman's attorney, and Daughter is not a party to this litigation.  Daughter manages most of Elderly Gentleman's day-to-day life.

Elderly Gentleman suffers from two kinds of dementia.  A recent visit by one of Firm's lawyers to Elderly Gentleman's primary treating physician for his dementia revealed that Elderly Gentleman is at even more of a cognitive disadvantage than Firm already believed he was.  Doctor advised that, while Elderly Gentleman has Agood days and bad days, his dementia is profound even on his good days.  Doctor reports that dementia is progressively worsening.  Doctor reported that Elderly Gentleman was during at least one visit incapable of telling Doctor how he arrived at Doctor's office, how many children he had, what year it was, whether he was married, who his girlfriend was, or who the president was.  Doctor reports that in particular one of the dementia from which Elderly Gentleman suffers causes him to be very trusting of others.

Doctor's report confirmed Firm's suspicions about Elderly Gentleman's mental condition.  Daughter has reported numerous instances of behavior by Elderly Gentleman that indicate a low level of understanding of and ability to remember events.  Daughter reports that Elderly Gentleman has a Agirlfriend with whom he goes to the bank when girlfriend picks him up.  Daughter knows the amount of money in one of Elderly Gentleman's bank accounts but not the amount in the other.  Firm knows of at least two instances, independent of Elderly Gentleman's interaction with girlfriend, in which Elderly Gentleman executed documents strongly against his interest in preserving his moderate savings and real property in exchange for no discernible gain.  Firm believes that in each such instance, Elderly Gentleman either did not understand the import of his actions, was deceived by others, or both. Elderly Gentleman cannot remember either of these instances.

Daughter has inquired with Firm about legal action that could be taken in an effort to protect Elderly Gentleman, and Firm has indicated that a conservatorship may be a good option for Elderly Gentleman.  After research, Firm believes a conservatorship, with Daughter as conservator, is needed to protect Elderly Gentleman.  Firm believes the appointment of Daughter as guardian ad litem for Elderly Gentleman in the pending litigation matters and for any further litigation matters that develop as to Elderly Gentleman is squarely in Elderly Gentleman's best interests.

In Firm's attorneys' opinion, Elderly Gentleman is not capable of knowing or expressing what his position would be as to a conservatorship or guardianship.  In Firm's attorneys' opinion, which appears to comport with Doctor's opinion, Elderly Gentleman cannot understand what the import of a conservatorship or guardianship would be.

Firm would like to take action to have Daughter appointed as conservator and guardian ad litem.

Questions:

May Firm represent Daughter in proceeding to establish conservatorship for and appointment of guardian ad litem for Elderly Gentleman?

If not, may Firm as petitioning party petition the court for Daughter's appointment as conservator and/or guardian?

If neither, what role may firm play in conservatorship/guardianship proceedings?

Summary:

If the power of attorney previously executed by Elderly Gentleman appoints Daughter as the legal representative, Firm may represent Daughter in this capacity in an action to have Daughter appointed as conservator and guardian ad litem, if no less intrusive action is available.  If the power of attorney is not sufficient to designate a legal representative, Firm may petition the court on Firm's own authority for appointment of a conservator and/or guardian but may not represent Daughter as a third party.

Opinion:

As Firm has already recognized, representing clients with diminished capacity requires caution as lawyers have additional responsibilities.  This committee has previously issued opinions under the prior Rule 1.14 which continue to give guidance. The current rule adds clarification without deleting any of the obligations under the prior rule.  New language reminds lawyers that Rule 1.6 continues to protect information relating to the representation of a client, while realizing that some information may have to be divulged to protect the client's interests.  This language acknowledges that if a lawyer could not take action to protect a client with diminished capacity,   the lawyer would face the ethical dilemma of having to stand by while a client suffered harm or having to withdraw when the client most needs representation. The better choice is to continue representation and take protective action.

Rule 1.14 (b) allows Firm to consult with individuals that have the ability to take action to protect the client.  Comment (5) includes consulting with family members as a step that may be necessary.  Daughter has reported behavior that supports the need for protective action.  Comment (6) allows Firm to seek guidance from an appropriate diagnostician. Consultation with Elderly Gentleman's doctor has revealed that his dementia is even more severe than Firm had been able to determine based on Firm's contact and continuing relationship with him.  Even prior to the concerns of dementia, Elderly Gentleman could not read or write, making him more vulnerable. This information, added to Firm's belief that Elderly Gentleman has taken actions strongly against his interest in the past, supports the need for protective action as contemplated by the Rule.   

Firm must Aas far as reasonably possible, maintain a normal client-lawyer relationship with the client.  Rule 1.14 (a).  Comment (1) acknowledges that this relationship assumes that the client is capable of making decisions about important matters.  Firm represents Elderly Gentleman on multiple matters and should continue to communicate with him. Although dementia has possibly negatively impacted Elderly Gentleman's ability to make any legal decisions, he is entitled to continue to make decisions within his ability.  The comment supplies an example of someone who may be able to handle routine financial matters while needing special legal protection concerning major transactions. Restatement (Third) of Law Governing Lawyers, Section 24 (2000) cautions that lawyers Ashould be careful not to construe as proof of disability a client's insistence on a view of the client's welfare that a lawyer considers unwise or otherwise at variance with the lawyer's own views.

Firm's opinion is that Elderly Gentleman is not capable of knowing or expressing what his position would be as to a conservatorship or guardianship or of understanding the import of such an action.  Firm wishes to take action to have Daughter appointed as conservator or guardian.  Firm must first determine if this is the least restrictive action that can be taken.  This committee does not issue opinions on substantive law and has not reviewed or seen the power of attorney.  However, if this document is sufficiently broad to provide the protection needed, Daughter may act under this authority.  This document was executed some years ago, and Elderly Gentleman's competence was not an issue at that time.  It is clearly a directive of the client as to his wishes that Daughter act for him.

Should Firm determine that a conservator and guardian ad litem are still needed, it must further examine the durable power of attorney.  The Pennsylvania Bar Association in Informal Opinion 93-179, found in a case where the client was totally incapacitated in a persistent, vegetative state, that Asince the former client cannot give consent and the attorney-in-fact to a degree stands in the shoes of a former client, it is reasonable that Rule 1.14(b) applies . . . as there is no doubt that the former client cannot adequately act in his own interest.  Thus, to this extent, Inquirer's representation of the attorney-in-fact does not constitute an impermissible conflict of interest.

Comment (4) advises that if a legal representative has already been appointed for or by the client, the lawyer should ordinarily look to the representative for decisions on behalf of the client.  If examination of the power of attorney reveals that Daughter is the legal representative, then Firm may represent Daughter in a proceeding to establish conservatorship and appointment as guardian ad litemSee S.C. Bar Ethics Adv. Op. # 93-06.

Should Firm determine that the power of attorney does not make Daughter the legal representative of Elderly Gentleman as contemplated in Comment (4), then Firm may take necessary protective action including petitioning  the court for appointment as conservator and/or guardian.  The Connecticut Bar Association in Ethical Opinion 97-21 stated that the Lawyer may seek a guardian but may not represent another in doing so. In a prior opinion, 05-11, the South Carolina Ethics Advisory Committee reached a similar conclusion that, should the attorney seek the appointment of a guardian, this action must be on the attorney's own authority and not for a third person.  The Connecticut opinion stated that if other less drastic measures were not available, Rule 1.14 (b) clearly authorizes the lawyer to file the action.  While recognizing that the lawyer may be uncomfortable and prefer that someone else file the petition, the Committee concluded Athat a lawyer with a disabled client should not attempt to represent a third party petitioning for a guardianship over the lawyer's client.  This opinion stated further that this does not mean the lawyer cannot consider requests such as Daughter's and be responsive to them, provided the lawyer has made the determination on his own that a guardianship is necessary.  The lawyer should also make a good faith determination that the third person, in our case Daughter, is also acting in the best interest of the client.  The Connecticut opinion further advised that the lawyer could support and even recommend the appointment of a particular person, provided the lawyer had made a reasonable assessment of the person's fitness and qualifications.  This is not the same as representing that person, and the lawyer continues to have only one client.  The Opinion further stated that once the guardian has been appointed, the lawyer is free to represent the guardian but owes a duty of candor to the court during the proceedings to advise of any potential financial interest in having a particular person named as guardian.  

Although representation of a client with diminished capacity is difficult, lawyers must protect the client's best interests.  As Firm reasonably believes that Elderly Gentleman has diminished capacity, Firm may take protective action.print