Can a lawyer who was abruptly discharged by a client he believes is incompetent initiate a conservatorship or other protective proceeding for that client?

Plain-English summary

A lawyer representing a personal injury client had serious doubts about the client's competency, was discharged without warning, and was concerned about possible undue influence by successor counsel or others and about harm to the client's interests. Asked whether the lawyer could initiate conservatorship or similar protective proceedings, the Committee answered "Qualified yes." It observed that the 1969 Code did not adequately address the disabled client, leaving only EC 7-12, which directs a lawyer compelled to make decisions for a disabled client without a legal representative to consider all circumstances and act with care to safeguard and advance the client's interests.

The Committee cited proposed Model Rules 1.14 and 1.16 as persuasive authority. Model Rule 1.14(a) directs the lawyer to maintain, as far as reasonably possible, a normal client-lawyer relationship with a disabled client, while 1.14(b) permits seeking appointment of a guardian or other protective action only when the lawyer reasonably believes the client cannot adequately act in his own interest. Although a client ordinarily may discharge a lawyer at any time, the opinion reasoned that a mentally incompetent client may lack the legal capacity to exercise that right and the discharge may be seriously adverse to his interests, so the lawyer may help the client understand the consequences and, in an extreme case, initiate conservatorship or similar protection under the Comments to Model Rule 1.16. The Committee stressed that such action after discharge is appropriate only in extreme cases, given the client's presumed right to change counsel and the need for substantial evidence of incompetency, undue influence, or prejudice; that initiating proceedings may adversely affect other client interests or create an appearance that counsel is serving only his own interests; and that in no event should the lawyer who initiates the action serve as guardian or conservator for purposes of exercising decision-making power over the discharge.

Currency note

This opinion was issued in 1986 under Kentucky's former Code of Professional Responsibility (in effect 1971 to 1990), before the Kentucky Bar Association's 1990 adoption of the Rules of Professional Conduct (SCR 3.130) and the substantial 2009 revisions to those rules. It relied on the then-proposed Model Rules 1.14 and 1.16 as persuasive authority. Treat this page as historical context, not current guidance. Verify against the current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Can a discharged lawyer take protective action for a client he thinks is incompetent?

A: Under this opinion, qualified yes. In extreme cases supported by substantial evidence, the lawyer may initiate a conservatorship or similar protective proceeding for the client.

Q: Does the client's right to fire the lawyer block this?

A: The opinion reasoned that a mentally incompetent client may lack the legal capacity to exercise the right to discharge, and that the discharge could be seriously adverse to his interests, so protective action may be warranted in an extreme case.

Q: Can the discharged lawyer become the client's guardian or conservator?

A: No. The opinion stated that in no event should the lawyer who initiates the action serve as the guardian or conservator for purposes of exercising decision-making power relating to the discharge.

Background and rules framework

The opinion applied EC 7-12 of the 1969 Code, supplemented by the then-proposed Model Rules 1.14 (client under a disability) and 1.16 (declining or terminating representation) as persuasive authority. The modern analogs are Model Rule 1.14 (client with diminished capacity) and Model Rule 1.16 (terminating representation). The analysis turned on the strength of the evidence of incompetency and on avoiding any appearance that the lawyer was serving his own interests.

Citations and references

Rules of Professional Conduct:

• EC 7-12 (1969 Code)
• MR 1.14 (client with diminished capacity); MR 1.16 (declining or terminating representation)

See also

• ABA Formal Op. 96-404: Client Under a Disability
• AL Ethics Op. 1995-03: Guardian for a Disabled Client

Source

• Landing page: https://kybar.org/For-Members/Rules-Ethics-Information/Ethics-Opinions
• Original PDF: https://kybar.org/Portals/0/Admin/Ethics%20Opinions/KBA_E-314.pdf

Original opinion text

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

KENTUCKY BAR ASSOCIATION
Ethics Opinion KBA E-314
Issued: August 1986

This opinion was decided under the Code of Professional Responsibility, which was
in effect from 1971 to 1990. Lawyers should consult the current version of the
Rules of Professional Conduct and Comments, SCR 3.130 (available at
http://www.kybar.org), before relying on this opinion.

Question:

A lawyer has been representing a personal injury client, but has serious doubts
about the client's competency. The lawyer is discharged by the client without
warning, and counsel is concerned about possible undue influence by successor
counsel or others, as well as the effects of the discharge on the client's interests.
May the lawyer initiate proceedings for a conservatorship or similar protection of
the client?

Answer:

Qualified yes.

References:

EC 7-12; Proposed Model Rules 1.14 and 1.16 and Comment.
OPINION

The current Code does not adequately address the problem encountered by lawyers who
must deal with the disabled client. These are relegated to EC 7-12, which states that "if the
disability of the client and the lack of legal representative compel the lawyer to make decisions
for his client, the lawyer should consider all circumstances then prevailing and act with care to
safeguard and advance the interests of the client."
Proposed Model Rules 1.14 and 1.16 address the problem more directly, and we cite them
as persuasive authority in answering the question.
Model Rule 1.14(a) states that in dealing with the disabled client, the lawyer "shall, as far
as is reasonably possible, maintain a normal client-lawyer relationship with the client." Sub part
(b) of the same Rule permits the lawyer to "seek the appointment of a guardian or take other
protective action with respect to a client, only when the lawyer reasonably believes that the client
cannot adequately act in the client's own interest."
Although a client ordinarily has the right to discharge the lawyer at any time, with or
without cause, the mentally incompetent client may lack the legal capacity to exercise that right,
and the discharge may be seriously adverse to the client's interests. Accordingly, the lawyer
should be permitted to help the client understand the consequences of the discharge, and according
to the Comments to Model Rule 1.16 (Declining or Terminating Representation), may in an
extreme case, initiate proceedings for a conservatorship or similar protection of the client.
The Committee does not feel that an attorney should take such action after discharge,
except in extreme cases. We emphasize extreme cases, in recognition of the client's presumed
right to discharge counsel and retain other counsel, and the need for substantial evidence of
incompetency, undue influence, and/or prejudice to the interests of the client. Counsel must
recognize that the initiation of judicial proceedings may adversely impact on other interests of the
client, or create an appearance that counsel is serving only his or her own interests. In no event
should the attorney initiating such action serve as the guardian or conservator for purposes of
exercising decision-making power relating to the discharge.

Note to Reader
This ethics opinion has been formally adopted by the Board of Governors of the Kentucky
Bar Association under the provisions of Kentucky Supreme Court Rule 3.530 (or its predecessor
rule). The Rule provides that formal opinions are advisory only.