Can a lawyer petition to have a conservator appointed over a present or former client's property when the client opposes it, if the lawyer believes a conservatorship is in the client's best interest?
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This page answers the general question as of 1988. Ezel answers yours: whether it's allowed on your facts, under the current California Rules of Professional Conduct, with citations.
Plain-English summary
An attorney had served as counsel to a husband and wife, both deceased, who left a testamentary trust for their four children. One child, referred to as "A," would take substantial property outright but had developed a chemical-dependency problem that, in the view of the attorney (who had represented A on a number of matters, including structuring A's financial affairs), made it financially imprudent for him to receive the property. The attorney, acting for A's siblings, believed a conservator should be appointed to preserve capital and income for A's future maintenance. A opposed the appointment. The attorney asked whether he was disqualified from representing a petitioner for the appointment of a conservator of A's property if A contested the petition.
The committee found the facts similar to its earlier Formal Opinion 138, which had stated that an attorney may not ethically accept employment to institute proceedings for appointment of a guardian over his client. It concluded that the attorney was disqualified from bringing such a petition. The attorney was presently legal counsel to A, and an attorney is disqualified from bringing a legal action against a present client.
The committee further concluded that even if the attorney severed the existing relationship with A, he would be disqualified because the action would be based on confidential information acquired during the representation. It identified that this would violate former California Rule 4-101, which barred accepting employment adverse to a client or former client without informed written consent in a matter as to which the attorney obtained confidential information, and that representing both A and the petitioner placed the attorney in danger of violating former Rule 5-102(B), which barred representing conflicting interests without the written consent of all parties.
Currency note
This opinion was issued in 1988, before California adopted the former Rules of Professional Conduct (effective 1989) and before the current rules that follow the ABA Model Rules format (effective November 1, 2018). It interpreted former California Rules 4-101 and 5-102. The rules governing conflicts with current and former clients 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: Can a lawyer petition for a conservatorship over a current client who opposes it?
A: Per the opinion, no. The committee concluded that an attorney is disqualified from bringing a legal action, including a conservatorship petition, against a present client.
Q: Does dropping the client first cure the problem?
A: Per the opinion, no. The committee concluded that even after severing the relationship, the attorney would be disqualified because the petition would be based on confidential information acquired during the representation, implicating former Rule 4-101.
Q: Does it matter that the lawyer sincerely believed the conservatorship would help the client?
A: Per the opinion, no. The committee concluded the action was improper even where the attorney believed a conservatorship was in the client's best interest.
Background and rules framework
The opinion predates the numbered California rules in their later form. It interpreted former California Rule 4-101 (accepting employment adverse to a client or former client where the attorney obtained confidential information, absent informed written consent) and former Rule 5-102(B) (representing conflicting interests without written consent). Those authorities map to today's conflict rules for current clients (Model Rule 1.7) and former clients (Model Rule 1.9). The committee relied on its earlier Formal Opinion 138.
Citations and references
Rules of Professional Conduct (as in effect at the time):
- Former California Rules of Professional Conduct 4-101, 5-102(B)
Other opinions cited:
- LACBA Formal Opinion 138
See also
- LACBA Ethics Op. 463: Confidential Information About a Former Client's Securities Fraud
- LACBA Ethics Op. 465: Conflicting Interests in Labor-Certification Visa Practice
- LACBA Ethics Op. 424: Duty of Loyalty Between Insured and Insurance Company
Source
- Landing page: https://lacba.org/?pg=ethics-opinions
- Original PDF: https://lacba.org/docDownload/2011001
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