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Ethics in Guardianship Representation |
Eric M. Fink |
Greensboro, NC |
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- Wife, who is elderly, was removed from the martial home.
- Husband, also elderly, asked Attorney to investigate.
- Attorney discovered that Wife was the subject of an involuntary incompetency proceeding.
- Wife told Attorney she wanted Attorney to represent her in resisting the petition.
- Attorney also learned that Husband was investigated about alleged abuse and neglect of Wife.
- Attorney told Husband he could not represent both Wife & husband.
- Husband agreed that Attorney would only represent Wife in resisting petition
- Husband agreed he would pay legal fees and a written fee agreement was executed.
- Wife continued to express desire that Attorney represent her.
- At incompetency hearing, Attorney was not allowed to participate in hearing as counsel for Wife.
- Wife could not identify Attorney as her lawyer.
- Clerk declared Wife incompetent and appointed director of DSS as her legal guardian
- Attorney filed notice of appeal
- DSS contends Attorney has no authority to represent Wife because she has been adjudicated incompetent and only her legal guardian may make decisions about her legal representation.
- DSS lawyer demands that Attorney provide guardian with copies documents in Wife’s legal file.
Does Attorney have a conflict of interest because he was initially hired by Husband?
Does Attorney have a conflict of interest because he was initially hired by Husband?
No. The representation of Wife in the incompetency proceeding is not a representation that is adverse to the interest of Husband.
- Attorney obtained the consent of Husband to represent only Wife in the incompetency proceeding.
- The exercise of Attorney’s independent professional judgment on behalf of Wife is not impaired by the prior representation of Husband.
- See Rule 1.7 and Rule 1.9.
Does it matter that Husband pays for the representation of Wife?
Does it matter that Husband pays for the representation of Wife?
No. Rule 1.8(f) of the Revised Rules of Professional Conduct permits a lawyer to accept compensation for representing a client from someone other than the client if:
- the client consents after consultation;
- there is no interference with the lawyer’s independent professional judgment or the attorney-client relationship; and
- the confidentiality of client information is protected.
Does Attorney have to treat Wife as incompetent and defer to the decision of the guardian relative to the representation of Wife?
Does Attorney have to treat Wife as incompetent and defer to the decision of the guardian relative to the representation of Wife?
No. Wife is entitled to counsel of her own choosing particularly with regard to a proceeding that so clearly and directly affects her freedom to continue to make decisions for herself.
- If Attorney is able to maintain a relatively normal client-lawyer relationship with Wife and Attorney reasonably believes that Wife is able to make adequately considered decisions in connection with her representation, Attorney may continue to represent her alone without including the guardian in the representation.
- However, if Attorney has reason to believe that Wife is incapable to making decisions about her representation and is indeed incompetent, the appeal of the finding of incompetency may be frivolous.
- If so, Attorney may not represent her on the appeal.
Once the guardian was appointed for Wife, did the guardian become Attorney’s client, or otherwise step into the shoes of Wife, such that Attorney may only take directions from the guardian and not from Wife?
Once the guardian was appointed for Wife, did the guardian become Attorney’s client, or otherwise step into the shoes of Wife, such that Attorney may only take directions from the guardian and not from Wife?
No. Rule 1.14(a) indicates that a lawyer may represent a client under a mental disability.
- The lawyer owes the duty of loyalty to the client and not to the guardian or legal representative of the client, particularly if the lawyer concludes that the legal guardian is not acting in the best interest of the client.
Does Attorney have to turn over Wife’s legal file to Wife’s appointed guardian?
Does Attorney have to turn over Wife’s legal file to Wife’s appointed guardian?
No. When a guardian is appointed for a client, a lawyer may turn over materials in the client’s file and disclose other confidential information to the guardian if the release of such confidential information is consistent with the purpose of the original representation of the client or consistent with the express instructions of the client.
- However, where, as here, the release of confidential information to a guardian is contrary to the purpose of the representation, the lawyer must protect the confidentiality of the client’s information and may not release the legal file to the guardian absent a court order.
- See Rule 1.6(d)(3).
- Lawyer was hired Mother to file a personal injury action on behalf of Minor.
- Mother is the appointed guardian ad litem for Minor.
- Minor was injured while riding in his grandmother’s car, which collided with a truck.
- Lawyer brought an action against the driver of the truck but not against Grandmother.
- Subsequent investigation by Lawyer’s expert has led the expert to conclude that Grandmother was negligent and the truck driver was not negligent.
- Grandmother has substantial assets.
- Lawyer and Mother disagree about the conduct of the litigation.
- Lawyer believes that the action against the truck driver is not warranted by the facts and should be dismissed.
- Lawyer also believes a lawsuit against Grandmother is necessary to protect Minor's interests.
- Mother does not want a lawsuit filed against Grandmother.
Does Lawyer owe a duty of confidentiality to Mother?
Does Lawyer owe a duty of confidentiality to Mother?
Yes, in her representative capacity as GAL for Minor.
- Minor and Mother, in her capacity as GAL, are both clients.
- Lawyer’s primary duty is to represent the interests of Minor.
- To the extent Mother acts outside her capacity as GAL, information learned by Lawyer may be disclosed, even over Mother's objection, if necessary to represent Minor.
If GAL insists that Lawyer continue to prosecute the lawsuit against the truck driver, what should Lawyer do?
If GAL insists that Lawyer continue to prosecute the lawsuit against the truck driver, what should Lawyer do?
If, based upon his expert’s analysis, Lawyer believes that Minor does not have a claim against the truck driver and the litigation of against the truck driver is, therefore, frivolous, Lawyer must file a motion to withdraw.
- As an alternative to withdrawal, if Lawyer believes GAL is failing to fulfill her fiduciary duties, Lawyer may seek to have GAL removed and replaced by an independent guardian ad litem who can evaluate the action against the truck driver and the claim against Grandmother objectively and make an unbiased decision about the conduct of the litigation.
- Prior to filing a motion to withdraw, Lawyer must inform GAL and Minor of the status of the case, explain the reason he is moving to withdraw, and provide appropriate legal advice.
- A motion to withdraw or to remove and replace GAL should avoid the disclosure of confidential information unless the disclosure is allowed by Rule 1.6.
- For example, Lawyer may disclose information about GAL relative to actions that violate her fiduciary duties to Minor.
- Mother is also named in her individual capacity as a plaintiff in the lawsuit against Grandmother in order to pursue her personal claim for reimbursement of medical expenditures made on behalf of Minor.
- Lawyer also represents Mother in this capacity.
Does the dual representation of Mother in her personal capacity and as GAL alter the responses?
Does the dual representation of Mother in her personal capacity and as GAL alter the responses?
Yes. Lawyer may not file a motion to remove Mother as GAL while she is represented by Lawyer in her personal capacity because this action would be directly adverse to Mother.
- Even if Lawyer withdraws from the representation of Mother in her personal capacity only (and continues to represent Minor and Mother in her capacity as GAL), Lawyer may not file a motion to remove and replace Mother as GAL because Rule 1.9(a) prohibits a lawyer from representing a person whose interests are materially adverse to those of former client in the same or substantially related matter.
- The only course of action available to Lawyer is to move to withdraw from the representation of all of the plaintiffs if he believes that the action against the truck driver is frivolous.
- An attorney who is not associated with the GAL Program is appointed to serve the dual role of GAL volunteer and GAL attorney advocate.
- In performing the statutory duties of the GAL volunteer, the attorney will, among other things, interview and communicate with the child-client, the placement provider, and other collateral sources; draft and submit to the court GAL court reports, and testify about his/her investigation and recommendations to protect and promote the juvenile’s best interests.
- The GAL court reports contain first-hand observations of the Attorney and statements made to the attorney by the child-client that are intended to be communicated to the court and statements made by the placement provider, teacher, and other collateral contacts.
- The GAL court reports also include recommendations to the court about all aspects of the child-client’s life and the case including the placement and custody of the child-client and services that should be provided to the child-client, the parents, or other parties.
- In some instances, the court will not admit the GAL court report into evidence without the attorney providing the appropriate foundation through their sworn testimony or affirmation.
May the attorney file with the court and offer a GAL court report into evidence that he/she drafted?
May the attorney file with the court and offer a GAL court report into evidence that he/she drafted?
Yes, if the court appoints the attorney solely in the GAL role.
- However, if the court appoints the attorney in the dual role of GAL and attorney advocate, the attorney may only proceed if the attorney informs the court of the ethical concerns associated with the attorney’s dual role and the court concludes that the attorney may proceed in the dual role.
- When an attorney is appointed to serve the dual role of GAL and Attorneydvocate, the Rules of Professional Conduct apply.
- For example, except under limited circumstances, attorneys are prohibited from acting as an advocate at a trial if the attorney is likely to be a necessary witness. Rule 3.7.
- Therefore, the attorney must inform the court that the attorney cannot serve as a GAL and the advocate if the court will call upon the attorney to testify.
- The attorney must ask the court to limit the attorney’s role to either the GAL or the advocate.
- The attorney must also ask the court to either appoint a non-lawyer to serve as the GAL or appoint a second attorney to serve as the attorney advocate.
- An action alleging medical malpractice was brought on behalf of a child who was injured, and Child’s Mother and Father.
- Plaintiff-Attorneys represent Child, Mother and Father.
- The defendants are represented by Defense-Attorneys.
- A private lawyer (Guardian Ad Litem) was appointed by the court to serve at guardian ad litem for the minor.
- At mediation, Defense-Attorneys asked to meet privately with Guardian Ad Litem to discuss Child’s case.
- Plantiff-Attorneys denied the request, maintaining that Guardian Ad Litem is their client and, pursuant to Rule 4.2(a) Defense-Attorneys may not communicate with their represented client without their consent.
- Defense-Attorneys contend that, as a lawyer, Guardian Ad Litem “represents” Child and, therefore, has a professional responsibility to exercise independent professional judgment on behalf of Child, which includes making an independent inquiry of Defense-Attorneys’ proposals and positions.
- Defense-Attorneys further contend that Plaintiff-Attorneys may not interfere with Guardian Ad Litem’s decision on whether to communicate privately with Defense-Attorneys.
If a guardian ad litem is a lawyer, is he or she still a client represented by counsel for the purposes of Rule 4.2, thus prohibiting direct contact by opposing counsel with consent of the guardian ad litem’s lawyer?
If a guardian ad litem is a lawyer, is he or she still a client represented by counsel for the purposes of Rule 4.2, thus prohibiting direct contact by opposing counsel with consent of the guardian ad litem’s lawyer?
As a party under NC R. Civ. P. 17, the guardian ad litem may choose to be represented by legal counsel and permit legal counsel to make decisions about the strategy for the litigation.
- The fact that the guardian ad litem is a lawyer does not make him or her co-counsel for the purpose of litigating the case.
- Opposing counsel must comply with Rule 4.2 and respect the decision of the guardian ad litem’s trial counsel to deny a request to communicate privately with their client, the guardian ad litem.
- It is alleged that Child was sexually abused by her father.
- Attorney and Guardian Ad Litem were appointed to represent Child in the juvenile petition.
- Guardian Ad Litem is not an attorney.
- She is interested in interviewing the mother of Child.
- The mother is represented in this matter by another attorney.
Must Guardian Ad Litem obtain the approval of the mother’s attorney before communicating with the mother?
Must Guardian Ad Litem obtain the approval of the mother’s attorney before communicating with the mother?
No. Rule 4.2 only prohibits communications with a represented person “[d]uring [the lawyer’s] representation of a client."
- This prohibition does not apply to Guardian Ad Litem because it does not apply to non-lawyers.