When a guardian tells her lawyer she has misused her ward's funds, may the lawyer prepare an account that hides the misuse, or report the misuse to the court without her consent?
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This page answers the general question as of 1960. Ezel answers yours: whether it's allowed on your facts, under the current California Rules of Professional Conduct, with citations.
Plain-English summary
A guardian, G, had been appointed over the person and estate of her ward, W, whose estate came mainly from a personal-injury recovery. After a proper first account, G continued to draw monthly sums but, after custody of W passed to W's father, used the money for her own purposes rather than to support W. When the bonding company demanded an account, G's original attorney withdrew, and G retained attorney B, made full disclosure, and asked B to prepare the account and protect her interests. B posed four questions: whether he could prepare an account that omitted the defalcation; whether he was obligated to report the situation to the court absent G's consent; whether he could report it without her consent; and what steps he could ethically take to minimize G's exposure.
Applying ABA Canon 37 and California Business and Professions Code section 6068(e), the committee answered the first three questions "no." A lawyer may not prepare or file an account that is false by significant nondisclosure, and the duty to preserve the client's confidences barred B from reporting the misuse to the court without G's consent, even though the information concerned past misconduct.
On the fourth question, the committee stated that B should advise G to prepare and sign a true account that reveals the misappropriation and treats her as liable to the estate, and to repay the misused amount; if G has no funds, she may apply any fee to which she is entitled toward repayment. If G refuses to sign a true account, B's only option is to refuse to file any account, leaving G subject to whatever consequences follow from failure to account.
Currency note
This opinion was issued in 1960, before California adopted the former Rules of Professional Conduct (effective 1989) and long before the current rules that follow the ABA Model Rules format (effective November 1, 2018). It interpreted ABA Canon 37 and Business and Professions Code section 6068(e) as they then stood; both the statute and California's confidentiality and candor rules have since been amended. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule mentioned here.
Common questions
Q: Could the lawyer file an account that simply left out the guardian's misuse?
A: Per the opinion, no. The committee concluded the lawyer may not prepare or file an account that is false by reason of significant nondisclosure of the misappropriation.
Q: Did the lawyer have to tell the court about the misuse?
A: Per the opinion, no, not without the guardian's consent. The committee concluded the duty to preserve the client's confidences barred disclosure to the court, and that the lawyer also could not disclose it over her objection.
Q: What was the lawyer supposed to do instead?
A: Per the opinion, advise the guardian to file a true account disclosing the misuse, treat herself as liable to the estate, and make restitution; if she refused to sign a true account, the lawyer's only course was to refuse to file any account at all.
Background and rules framework
The opinion predates the Model Rules and the numbered California rules. It interpreted ABA Canon of Professional Ethics 37 and California Business and Professions Code section 6068(e), the predecessors of today's confidentiality rule (Model Rule 1.6; California Rule 1.6), alongside the lawyer's separate duty not to file a false account (today reflected in candor obligations, Model Rule 3.3). It treated a client who is a guardian or administrator as entitled to the same protection against disclosure as a client acting in a personal capacity.
Citations and references
Rules of Professional Conduct (as in effect at the time):
- ABA Canon of Professional Ethics 37 (preservation of confidences)
Statutes:
- California Business and Professions Code section 6068(e)
- California Code of Civil Procedure section 1881(2)
Cases:
- Magee v. Brenneman, 188 Cal. 562
Other opinions cited:
- LACBA Opinion 132 (disapproved to the extent contrary); LACBA Opinion 264
See also
- LACBA Ethics Op. 274: Confidential Communications and Client Files
- LACBA Ethics Op. 264: Disclosing Client Confidences to Prevent a Crime
- LACBA Ethics Op. 386: Disclosure of Client Perjury
- LACBA Ethics Op. 466: Disclosure of Evidence of Crime Received From a Client
Source
- Landing page: https://lacba.org/?pg=ethics-opinions
- Original PDF: https://lacba.org/docDownload/2011012
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