Ezel / Ethics Opinions / DCBAR
DCBAR September 2006

What are a lawyer's candor duties when serving as a court-appointed guardian and the ward's identity turns out to be false?

Short answer: The opinion concludes that a lawyer appointed as guardian of an incapacitated individual (and not acting as that person's attorney) is still bound by the rules that apply to all members of the bar regardless of a client relationship: Rule 3.3(a)(1) (no false statement of material fact to a tribunal), Rule 3.3(d) (duty to reveal a fraud on the tribunal), and Rule 8.4(c) (no dishonesty). Because the ward is not the guardian's client, Rule 1.6 confidentiality does not block disclosure. The guardian may not keep using the ward's false name, and a failure to disclose the false identity would be the equivalent of a misrepresentation.

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This page answers the general question as of 2006. Ezel answers yours: whether it's allowed on your facts, under the current rules of professional conduct in your state, with citations.

Currency note: this opinion is from 2006
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Plain-English summary

Opinion 336 (published September 2006) addresses a lawyer appointed by the Superior Court's Probate Division as permanent general guardian of an incapacitated individual under D.C. Code section 21-2047. The ward had a stroke, is nonverbal, and presented a name and social security number that the guardian later determined "categorically" to be false; the guardian cannot learn the ward's true identity. Before discovering the false identity, the guardian had used that information to obtain Medicaid and Social Security benefits and to place the ward in a nursing home. The guardian asked whether he may continue to use the assumed name, whether he must disclose the false identity, and whether the guardianship statute or the Rules control when they conflict.

The Committee first concludes that no attorney-client relationship exists. A guardian under D.C. law need not be a lawyer, and appointment as guardian does not create a client relationship where none existed before; the ward has never been able to communicate or participate in decisions, which (citing ABA Formal Op. 96-404) forecloses the effective communication a client-lawyer relationship presumes. This is distinguished from a guardian ad litem, who under prior Opinion 295 (2000) is treated as the child's lawyer.

Even without a client relationship, certain Rules bind any member of the bar. Rule 3.3(a)(1) bars knowingly making a false statement of material fact to a tribunal, and Comment [2] notes that a failure to disclose can be the equivalent of an affirmative misrepresentation. Rule 3.3(d) requires a lawyer who receives information clearly establishing a fraud on the tribunal to reveal it, unless doing so would disclose information protected by Rule 1.6. Rule 8.4(c) bars dishonesty, fraud, deceit, or misrepresentation. Because "tribunal" includes benefits agencies acting in a quasi-judicial capacity, and the guardian must file semi-annual reports and may appear at benefits hearings, these rules govern his conduct. The guardian has conclusive evidence the ward is not who he purports to be, so he has an affirmative duty to reveal the fraud to the tribunal; Rule 1.6 does not block disclosure because the ward is not his client. The opinion concludes the guardian may not continue to use the false name, that failure to disclose the false identity would equal a misrepresentation, and that there is no conflict between the guardianship statute and the Rules.

In practice

Under the D.C. rules as they stood at the time of the opinion, a lawyer serving as a court-appointed guardian (and not as the ward's attorney) remains bound by Rule 3.3(a)(1), Rule 3.3(d), and Rule 8.4(c), which apply to members of the bar regardless of a client relationship. The opinion concludes that, having conclusively determined the ward's identity is false, the guardian may not keep using that identity and must reveal the fraud to the relevant tribunal, and that Rule 1.6 confidentiality does not block disclosure because the ward is not the guardian's client.

The opinion concludes there is no conflict between the District's guardianship statute and the Rules of Professional Conduct on these facts. Because the opinion predates the District's February 2007 rule amendments and later developments, verify the current D.C. rules and statute before relying on specific requirements.

Common questions

Q: Is a lawyer appointed as a guardian acting as the ward's attorney?

A: The opinion concludes no, where no client relationship existed before. A guardian need not be a lawyer, and the ward's inability to communicate forecloses the client-lawyer relationship; a guardian ad litem is treated differently.

Q: Which rules bind a lawyer-guardian even without a client relationship?

A: The opinion concludes Rules 3.3(a)(1) (candor to a tribunal), 3.3(d) (revealing a fraud on the tribunal), and 8.4(c) (no dishonesty) apply to members of the bar regardless of whether they are acting as counsel.

Q: Can the guardian keep using the ward's false name?

A: The opinion concludes no. Having conclusively determined the identity is false, the guardian may not continue to use it, and failure to disclose the false identity would be the equivalent of a misrepresentation.

Q: Does confidentiality prevent the guardian from disclosing the false identity?

A: The opinion concludes no. Rule 1.6 does not apply because the ward is not the guardian's client, so the duty to reveal the fraud on the tribunal under Rule 3.3(d) is not blocked.

Background and rules framework

The opinion interprets D.C. Rule 3.3 (candor toward the tribunal), including Rule 3.3(a)(1), Comment [2], and Rule 3.3(d), together with Rule 8.4(c) (dishonesty), as rules that bind any member of the bar regardless of a client relationship. It explains that Rule 1.6 (confidentiality) does not apply because the ward is not the guardian's client, and it applies the District's guardianship statute, D.C. Code sections 21-2043 and 21-2047. It relies on ABA Formal Op. 96-404 and prior D.C. Opinion 295 (2000).

Citations and references

Rules of Professional Conduct:

  • D.C. RPC 3.3, 3.3(a)(1), 3.3(d), Comment [2] / Model Rule 3.3 (candor toward the tribunal)
  • D.C. RPC 8.4(c) / Model Rule 8.4 (dishonesty, fraud, deceit, or misrepresentation)
  • D.C. RPC 1.6 / Model Rule 1.6 (confidentiality; inapplicable absent a client relationship)

Statutes:

  • D.C. Code sections 21-2043 and 21-2047 (guardianship; powers and duties)

Other opinions cited:

  • ABA Formal Op. 96-404 (1996) (client under a disability)
  • D.C. Ethics Op. 295 (2000) (guardian ad litem as the child's lawyer)
  • N.C. Bar Formal Ethics Op. 11 (2005)

See also

Source

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