What duties apply when a Colorado lawyer represents an allegedly incapacitated adult or serves as guardian ad litem in a protective proceeding?

Plain-English summary

Opinion 131 separates the roles of counsel and guardian ad litem in adult guardianship and conservatorship proceedings. Whether retained before the proceeding, retained for it, or appointed by the court, counsel for the allegedly incapacitated person is governed by Rule 1.14 and must maintain a normal lawyer-client relationship as far as reasonably possible. The client retains authority over the objectives of the representation under Rule 1.2(a), and the lawyer remains bound by Rule 1.6. Because the protective proceeding is already underway, the opinion concludes that Rule 1.14 does not generally authorize counsel to reveal confidential information for the purpose of initiating protective action.

Counsel may adapt communication by simplifying language, using written summaries, checking the client's understanding, scheduling meetings when capacity is strongest, or accepting help from a trusted third person when necessary. The lawyer must continue to follow the client's goals rather than the helper's. If incapacity is so severe that no lawyer-client relationship can be formed or maintained, counsel should decline or seek withdrawal and, when appropriate, request appointment of a guardian ad litem.

A guardian ad litem has a different assignment. Drawing on People v. Gabriesheski, the opinion describes the guardian ad litem as an independent officer of the court who acts for the allegedly incapacitated person's best interests, not as that person's lawyer. Rules 1.14 and 1.6 therefore do not apply through a client relationship, and communications do not carry traditional lawyer-client privilege. The opinion also concludes that a former lawyer for the allegedly incapacitated person ordinarily may not represent a relative seeking a protective proceeding against that former client, and the disqualification is imputed to the lawyer's firm.

In practice

Under Opinion 131, the controlling distinction is the lawyer's assigned role. Counsel advocates the allegedly incapacitated client's expressed goals, preserves client information, and withdraws if a workable lawyer-client relationship cannot continue. A guardian ad litem independently investigates and reports what serves the person's best interests and does not become the person's self-appointed advocate.

Common questions

Q: Must counsel follow what an allegedly incapacitated client wants?

A: Yes, while a lawyer-client relationship can be maintained. The opinion states that the client retains authority over objectives and that counsel must consult with and be guided by the client as far as reasonably possible.

Q: May a trusted relative help the lawyer communicate with the client?

A: Yes, when the assistance is necessary. The opinion states that the third person's presence does not necessarily destroy privilege, but the lawyer must follow the client's objectives rather than the helper's.

Q: What if the client's capacity is too limited to form or continue a lawyer-client relationship?

A: The opinion concludes that the lawyer should decline or seek withdrawal. If no guardian ad litem exists, counsel should inform the court of the inability to form or continue the relationship and request an appointment.

Q: Is the allegedly incapacitated person the guardian ad litem's client?

A: No, under the opinion's analysis. The guardian ad litem is an independent officer of the court acting for the person's best interests, so there is no traditional lawyer-client relationship or privilege.

Q: May the person's former estate-planning lawyer represent a relative seeking guardianship?

A: Ordinarily no. The opinion concludes that Rule 1.9 bars the representation because the lawyer likely holds confidential information relevant to the protective proceeding, and Rule 1.10(a) imputes the disqualification to the firm.

Background and rules framework

The opinion applies Colorado RPC 1.14 to counsel for an allegedly incapacitated adult, Rule 1.2 to client objectives, Rule 1.6 to confidentiality, and Rules 1.9 and 1.10 to a former lawyer asked to represent a relative seeking protective action. It distinguishes this setting from CBA Formal Opinion 126, which addresses diminished capacity that is incidental to another representation.

Citations and references

Rules of Professional Conduct:

• Colo. RPC 1.14 (client with diminished capacity)
• Colo. RPC 1.2(a) (client objectives and consultation)
• Colo. RPC 1.6 (confidentiality)
• Colo. RPC 1.9 and 1.10(a) (former-client and imputed conflicts)

Statutes:

• C.R.S. § 15-14-305 (preliminaries to an adult protective hearing)
• C.R.S. § 15-14-309 (right to a lawyer after adjudication)
• C.R.S. § 15-14-314 (guardian decision standards)

Cases:

• People v. Gabriesheski, 262 P.3d 653 (Colo. 2011), guardian ad litem as an independent officer rather than the minor's lawyer
• L.A.N. v. L.M.B., 292 P.3d 942 (Colo. 2013), the best interests of the child as the guardian ad litem's client in a minor proceeding
• Liebnow v. Boston Enterprises, Inc., 2013 CO 8, 296 P.3d 108, imputed disqualification
• In re Sorensen, 166 P.3d 254 (Colo. App. 2007), appointment of a guardian ad litem when capacity affects representation

Other opinions cited:

• CBA Formal Opinion 126: representing an adult client with diminished capacity when capacity is incidental to the representation

See also

• CBA Formal Op. 126: Adult Client With Diminished Capacity
• ABA Formal Op. 96-404: Client Under a Disability
• DC Ethics Op. 353: Surrogate Decision-Maker for an Incapacitated Client

Source

• Landing page: https://www.cobar.org/ethicsopinions
• Original PDF: Colorado Formal Ethics Opinion 131