Can a lawyer for an incapacitated client ask the court for a new surrogate decision-maker when the current one is making decisions against the lawyer's advice?
Apply this to your situation
This page answers the general question as of 2010. Ezel answers yours: whether it's allowed on your facts, under the current rules of professional conduct in your state, with citations.
Plain-English summary
Opinion 353 (published February 2010) addresses a lawyer hired by a durable power-of-attorney agent to represent an elderly incapacitated client in a foreclosure suit, where the surrogate decision-maker was making decisions for the client against the lawyer's advice. The question was whether the lawyer could seek the appointment of a substitute surrogate decision-maker.
The opinion concludes that a lawyer representing an incapacitated person who has a surrogate decision-maker should ordinarily look to the client's chosen surrogate for decisions and accord the surrogate's choices the same weight as a client's choices when the client is unable to express, or does not express, a contrary view. The lawyer may not substitute her own judgment for the surrogate's where the surrogate (1) is acting within the scope of the authority the law affords her, (2) was selected by the incapacitated person before the onset of incapacity, and (3) is not engaged in conduct creating a risk of substantial harm or otherwise acting in a manner that would require the lawyer to withdraw if a client acted the same way.
The opinion concludes that if the surrogate is engaged in conduct creating a risk of substantial harm to the client (or is acting in a manner that would otherwise require withdrawal), the lawyer may take protective action under Rule 1.14, including seeking a substitute decision-maker. The opinion further concludes the lawyer may not withdraw in this situation, because withdrawal would substantially harm the client and no grounds for a prejudicial withdrawal under Rule 1.16(b) exist.
In practice
Under the D.C. rules as they stood at the time of the opinion, a lawyer for an incapacitated client who disagrees with the client's surrogate decision-maker must ordinarily defer to the surrogate, giving the surrogate's choices the same weight as a client's when the client cannot express a contrary view. The opinion concludes the lawyer may not override the surrogate where the surrogate is acting within her legal authority, was chosen by the client before incapacity, and is not creating a risk of substantial harm.
The opinion concludes that where the surrogate's conduct creates a risk of substantial harm, the lawyer may take protective action under Rule 1.14, including seeking a substitute decision-maker, but generally may not withdraw, because withdrawal would substantially harm the client and no Rule 1.16(b) grounds support a prejudicial withdrawal. Because the opinion predates later rule developments, verify the current D.C. rules before relying on specific requirements.
Common questions
Q: Must I follow the surrogate decision-maker's instructions even if I disagree?
A: The opinion concludes that a lawyer should ordinarily defer to the client's chosen surrogate and give the surrogate's decisions the same weight as a client's, and may not substitute her own judgment where the surrogate is acting within her legal authority, was chosen before incapacity, and is not creating a risk of substantial harm.
Q: When can I seek a substitute surrogate decision-maker?
A: The opinion concludes the lawyer may take protective action under Rule 1.14, including seeking a substitute decision-maker, when the surrogate is engaged in conduct creating a risk of substantial harm to the client or acting in a manner that would otherwise require withdrawal.
Q: Can I just withdraw if I disagree with the surrogate?
A: The opinion concludes generally not. The lawyer may not withdraw where doing so would substantially harm the client and no grounds for a prejudicial withdrawal under Rule 1.16(b) exist.
Background and rules framework
The opinion interprets D.C. Rule 1.14 (client with diminished capacity), including the lawyer's ability to take protective action, read with Rule 1.2 (scope of representation and allocation of authority) and Rule 1.16 (declining or terminating representation), in particular the constraints on a prejudicial withdrawal under Rule 1.16(b). It applies these rules to the relationship between a lawyer and a surrogate decision-maker acting for an incapacitated client.
Citations and references
Rules of Professional Conduct:
- D.C. RPC 1.14 / Model Rule 1.14 (client with diminished capacity; protective action)
- D.C. RPC 1.2 / Model Rule 1.2 (scope of representation)
- D.C. RPC 1.16, 1.16(b) / Model Rule 1.16 (declining or terminating representation; prejudicial withdrawal)
See also
- ABA Formal Op. 96-404: Client Under a Disability
- NY State Bar Op. 746: Lawyer as Guardianship Petitioner
- NY State Bar Op. 1069: Representing a Child and Guardian
- RI EAP Op. 2014-05: Rule 1.6 Lets a Lawyer Give an Attorney-in-Fact's Case File to the Elderly Principal's Newly Appointed Guardian
Source
- Landing page: https://www.dcbar.org/for-lawyers/legal-ethics/ethics-opinions-210-present/ethics-opinion-353
Get today's answer for your situation
You just read a 2010 opinion on this question. Ezel checks the current rules of professional conduct in your state and answers your specific situation, with citations.
Opens in Ezel Pro. Every answer cites the rules it relies on.