When a lawyer represents a client under a guardianship for disability, must the lawyer advocate the client's own wishes even if the lawyer thinks they are against the client's interests?

Plain-English summary

Bar counsel asked for general guidance on a lawyer's duties in representing clients with mental disabilities, using a hypothetical drawn from a disciplinary proceeding. In the hypothetical, a lawyer paid by a nonprofit advocacy agency had represented a severely disabled client (before a guardianship was imposed) and, with the guardian, pursued diagnosis and treatment the client objected to, while the state questioned whether the client was getting independent adversarial representation.

The opinion concluded that an attorney representing a client under guardianship for disability has an absolute duty to advocate the client's expressed desires even when they conflict with the client's best interests as the lawyer sees them. It framed the analysis under Rule 1.14, which requires the lawyer to maintain, as far as reasonably possible, a normal client-lawyer relationship despite the disability, carrying with it the ordinary duties of competence, abiding by the client's objectives, diligence, advising, confidentiality, and avoiding conflicts. Because the lawyer's relationship with the client pre-existed the guardianship, the client had the right to look to the lawyer as the protector of his expressed interests; where the client objected to treatment, the lawyer's duty was to explain the ramifications as fully as the client could understand and, if the client could not be persuaded, to make the client's wishes known to the court.

The opinion separately concluded that counsel had a clear conflict of interest between the client and the nonprofit that paid the fee. It applied Rule 1.7(b): a lawyer may not represent a client where the representation may be materially limited by responsibilities to a third person or the lawyer's own interests unless the lawyer reasonably believes the representation will not be adversely affected and the client consents after consultation. The third-party fee arrangement required the client's consent after meaningful consultation and the lawyer's independent professional judgment.

Currency note

This opinion was issued in 1994, before Alaska's adoption of the 2009 revisions to the Alaska Rules of Professional Conduct. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Could the lawyer override a disabled client's objection because the lawyer thought it was best for the client?

A: No. The opinion concluded the lawyer must advocate the client's expressed desires and, if the client could not be persuaded, make the client's wishes known to the court rather than act contrary to them.

Q: How did Rule 1.14 change the lawyer's duties?

A: The opinion read Rule 1.14 to require maintaining a normal client-lawyer relationship as far as reasonably possible, so the ordinary duties (competence, diligence, abiding by the client's objectives, confidentiality, avoiding conflicts) continued to apply despite the disability.

Q: Did it matter that a nonprofit agency paid the lawyer's fee?

A: Yes. The opinion concluded that arrangement created a conflict under Rule 1.7(b) that required the client's consent after meaningful consultation and the lawyer's independent professional judgment.

Background and rules framework

The opinion interpreted Alaska Rule of Professional Conduct 1.14 (Model Rule 1.14, client with diminished capacity) as the general framework, reading it together with the ordinary duties under Rules 1.1, 1.2, 1.3, 1.4, 1.6, and 1.7. On the third-party payment question it applied Rule 1.7(b) (Model Rule 1.7, conflicts arising from the lawyer's responsibilities to a third person or the lawyer's own interests).

Citations and references

Rules of Professional Conduct:

• Model Rule 1.14 / Alaska RPC 1.14 (client under disability / diminished capacity)
• Model Rule 1.7 / Alaska RPC 1.7(b) (conflict where representation may be materially limited)
• Model Rule 1.2 / Alaska RPC 1.2 (abiding by the client's decisions on objectives)

See also

• Alaska Ethics Op. 2005-1: Client Suicide Threat Disclosure
• Alaska Ethics Op. 2006-2: Client Instructions on Means in Criminal Cases
• Alaska Ethics Op. 2017-1: Lump-Sum Settlement Inclusive of Fees

Source

• Landing page: https://alaskabar.org/ethics-discipline/ethics-opinions/adopted-ethics-opinions-chronological/
• Original PDF: https://alaskabar.org/wp-content/uploads/94-3.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

ALASKA BAR ASSOCIATION
ETHICS OPINION 94-3
Representation of Client Under Disability
Bar counsel has requested an opinion giving general guidance to the Bar
with respect to lawyers' ethical duties in representing clients with mental
disabilities. The Committee has concluded:
a)
An attorney representing a client under guardianship for disability
has an absolute duty to advocate his or her client's desires even if those desires
conflict with client's best interests as viewed by attorney.
b)
Counsel for the disabled have the same duty of fidelity owed in any
attorney-client relationship which includes a duty to avoid conflicting interests.
The specific request arose out of a disciplinary proceeding. Bar counsel
felt that the situation was of general application and was likely to arise in the
future. The following hypothetical facts were furnished by Bar counsel.
FACTS
Client is a severely retarded individual subject to the care and control of
Guardian. Client was deemed in need of treatment to address "sexually
aberrant behavior." Guardian was directed and empowered by the court to
seek out and secure a treatment program for such behavior. Client is able, in
the broadest terms, to participate in important decisions concerning general
objectives relating to his interests. Guardian, however, believes that Client is
generally incapable of competently performing the evaluation and assessment
necessary for making informed decisions about the means for achieving those
objectives.
Attorney X works for Non-Profit Agency (hereafter "NPA"), an organization
dedicated to advocating the legal rights of developmentally disabled individuals.
The organization, among other things, initiates litigation on behalf of
developmentally disabled persons, with a particular eye toward "test cases"
which might be expected, not only to assist particular individuals, but also to
effect broader systemic rights for developmentally disabled person as a group.
Attorney X, paid by NPA, represented Client even before the court-imposed
guardianship.
Institution is a state-run psychiatric facility in which Client has been
placed and at which Client is expected to

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receive treatment. Institution is represented by attorneys for the state (which
attorneys are hereafter collectively referred to as "State").
Client expressed a clear desire to Guardian, Institution, and Attorney X
that he be permitted to receive outpatient/community-based treatment which
would allow him to leave Institution. Attorney X and Guardian, after
evaluation and consultation, concluded that no such placement would be
possible unless and until Client was given diagnosis and effective treatment for
a specific sexually oriented psychological disorder. Institution was asked to
provide such treatment. Institution refused the request, concluding that no
diagnosis for the particular disorder had or could be made concerning Client,
and that treatment for the condition was therefore neither necessary nor
appropriate. Further, Institution maintained that Client's outpatient goal
might be reached without such treatment.
Attorney X disagreed, and after consultation with Client and Guardian,
filed a Petition for Treatment Order in the guardianship matter in order to
compel Institution to initiate the desired treatment program. As part of that
petition, it was necessary to seek independent diagnosis of Client's condition.
One of the tests required for such diagnosis, while neither painful, permanent,
nor involving surgery, did involve potentially embarrassing and physically
intrusive procedures. When informed of the required tests, Client became
upset and expressed strong desires not to go through with the diagnostic tests.
Guardian, as well as Attorney X, continued to believe that such testing was
absolutely necessary in order to secure needed treatment for Client and to
accomplish Client's continually-expressed goal that he be permitted to receive
outpatient treatment.
State, perceiving a developing conflict between Client and Guardian, and
concluding that Attorney X had failed to independently protect Client's
interests, filed a Petition to Review Guardianship independent of the Petition
for Treatment Order. This petition, in essence, alleged that Guardian and
Attorney X had together embarked on a course of diagnosis and treatment
which was contrary to Client's best interests. According to the State this action
had been undertaken over Client's expressed or implied objections. State
maintained not only that the test was inconsistent with Client's expressed
desires, but also that the diagnosis sought by Guardian and Attorney X, if
obtained, would label Client with a particular sexual deviance which might
carry an extreme stigma and might have permanent negative effects on Client.
State questioned whether Client was receiving appropriate independent
adversarial representation in the face of the apparent conflict between his own
interests and the desires of the Guardian.
Attorney X withdrew as counsel with respect to State's petition to appoint
adversary counsel in the Petition to Review Guardianship. The court appointed
separate counsel in the guardianship review matter. Attorney X remained
counsel of record in the Petition for Treatment Order.
Attorney X continued to maintain that his agency, NPA, was a necessary
party to the guardianship review matter, and independently appeared to assert
that NPA, through Attorney X, should continue as Client's counsel. Attorney X
reasoned that, although it had withdrawn as counsel for Client for purposes of
the narrow guardianship review motion, it was nonetheless appropriate for NPA
to independently participate in the guardianship motion proceedings on the
ground that NPA had independent interests. The asserted interests were: (1)
protecting the "reputational interest" of NPA attorneys against charges of
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unethical conduct and (2) protecting NPA's interests in pursuing "issues
concerning the representation of incompetent persons."
State maintained Attorney X, having withdrawn from representation of
Client in the Petition to Review Guardianship on conflict grounds, could not,
under the conflicts rules, continue to independently appear and participate in
the guardianship review matter on NPA's independent behalf.
DISCUSSION
Alaska Rules of Professional Conduct, Rule 1.14 provides the general
framework in which both questions may be evaluated. Under subsection (a), a
lawyer is required "As far as reasonably possible" to maintain a normal
client/lawyer relationship with the client in spite of the client's inability to
adequately consider decisions because of mental disability. The "normal"
attorney-client relationship includes at the very least a duty of competence
(Rule 1.1), a duty to consult and abide by the client's decisions concerning the
objectives of representation (Rule 1.2), a duty of diligence (Rule 1.3), a duty to
explain and advise (Rule 1.4), a duty of confidentiality (Rule 1.6), and a duty to
avoid conflicts of interest (Rule 1.7). The commentary to 1.14 makes clear that
even if maintaining the ordinary client lawyer relationship may not be possible,
a client lacking legal competence often has the ability to understand, deliberate
upon, and reach conclusions about matters affecting the client's own wellbeing. The commentary makes plain competency is often a matter of degree
and that to the extent of meaningful participation in decision making, the
disabled individual must be consulted concerning his or her own well-being. In
that respect, the lawyer representing a disabled person is obliged to maintain
the ordinary attorney-client relationship.
The difficulties which have arisen in the hypothetical situation would be
avoided if the lawyer's obligations to the disabled client are considered in terms
of the ordinary attorney-client relationship. The relationship of attorneys
representing individuals under disabilities is often replete with conflicts
between the individual's expressed desires and the attorney's view of what is in
the client's best interest. In this case, however, a guardian had been
appointed. The guardian's responsibility is to advocate the client's best
interests. If necessary the guardian may appear through counsel. The
hypothetical, however, makes plain that lawyer represented the individual
rather than the guardian as the attorney-client relationship pre-existed the
guardianship proceeding. Therefore, this individual had the right to look to
this lawyer as the protector of his interests as he expresses those interests.
The "Client" made his position on testing clear. In ordinary attorney-client
relationships, lawyers are not free to act contrary to their client's desire merely
because the lawyer believes such actions to be the better course. The lawyer in
the hypothetical illustration is equally responsible to advocate for the client's
expressed desires.
When faced with a course of conduct that the lawyer believes to be in the
disabled client's best interest to which the client objects, a lawyer must fulfill
the obligations of the attorney-client relationship. Those obligations can only
be fulfilled by explaining to the client as carefully as possible the ramifications
of the course of treatment sought. The lawyer must disclose both the positive
benefits which will come as well as the negative aspects of the treatment. The
lawyer must do so to the best of his/her ability given the limitations of the
client's understanding. In this hypothetical, the client clearly objected to the
treatment. While it is simple to say on a paternalistic level that the client is not
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competent to know what is in his own best interest, it is equally true that the
client may not be able to articulate convincingly the reasons why the client
does not wish to undergo the treatment. If the client cannot be persuaded, the
lawyer's duty is to represent the interests of the disabled person. If the
guardian ad litem persists in undertaking the treatment to which the client
objects, it is the lawyer's duty to make his client's wishes known to the court.
The disabled client has no one but his attorney to speak for him. Perhaps the
client's wishes do not carry the day before the finder of fact. Nevertheless, a
disabled individual has the right to be heard through counsel. Counsel has a
duty to zealously advocate on behalf of that individual.
Further, counsel has a clear conflict of interest between his client and the
interests of NPA which paid the lawyer's fee. Ordinary rules of conflict of
interests apply even in cases of disability. In this case, the lawyer was paid by
NPA. This arrangement requires consent of the client after meaningful
consultation. The lawyer must also determine that there is no interference
with the lawyer's independence of professional judgment, or with the clientlawyer relationship. Rule 1.7(b) provides that a lawyer shall not represent a
client if the representation of that client may be materially limited by the
lawyer's responsibilities to another client or to a third person or by the lawyer's
own interest, except when the lawyer reasonably believes that the
representation will not be adversely effected and the client consents after
consultation.
Representation of the disabled is by definition difficult. Nevertheless, the
disabled like all members of society have an absolute right to look to counsel
for independent advocacy of their interests. Fidelity and passionate advocacy
of the interests of clients who cannot speak for themselves uphold the highest
aspirations of the Bar.
Approved by the Alaska Bar Association Ethics Committee on September 1,
1994.
Adopted by the Board of Governors on October 27, 1994.

248WP1MANUL

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