Can a lawyer who represents a guardian be ordered by the court to file a complaint against that guardian on behalf of the minor wards?

Plain-English summary

The Committee addressed a lawyer who had represented a guardian in a chancery-court minor's guardianship. It was discovered that the guardian had received and spent Social Security funds belonging to the children and could not account for them. The lawyer had discussed the matter with the guardian and tried to withdraw, but the chancellor ordered the lawyer to file a complaint against the guardian. The lawyer asked whether he could ethically do so.

The opinion explains that a lawyer who represents a guardian is the lawyer for the guardian, not for the ward, citing Hutton v. Gwin for the principle that attorney fees for representing a guardian are the guardian's personal obligation (except where the court orders reimbursement under Section 93-13-79 of the Mississippi Code). The lawyer's duties and loyalty run to the guardian.

The opinion concludes that Rules 1.6(a) and 1.7(a) prohibit the lawyer from filing the complaint. Rule 1.6(a) bars revealing information relating to the representation without the client's consent, and the lawyer said he had acquired privileged communications about the subject of the ordered complaint, so he must invoke the privilege unless the client waives it. Rule 1.7(a) bars representation directly adverse to a client absent consent; ordering the lawyer to file the complaint would effectively make him represent the wards against the guardian, destroying the loyalty that is essential to the relationship. The opinion concludes the better practice is for the chancellor to appoint a guardian ad litem, who, unencumbered by past representation of the guardian, could pursue the case for the children without betraying privilege or loyalty.

In practice

Under this opinion, a lawyer who has represented a fiduciary such as a guardian and has learned confidential information from that client may not be compelled to bring a claim against the same client on behalf of the beneficiaries. The opinion treats that as both a confidentiality problem under Rule 1.6(a) and a direct-adversity conflict under Rule 1.7(a), and identifies appointment of a separate guardian ad litem as the way to protect the wards' interests.

Common questions

Q: Who is the client when a lawyer represents a guardian, the guardian or the ward?

A: The opinion concludes the lawyer represents the guardian, not the ward; the lawyer's duties and loyalty are owed to the guardian (citing Hutton v. Gwin).

Q: Can a court order the lawyer to file a complaint against his own client, the guardian?

A: Per the opinion, no; Rule 1.7(a) bars representation directly adverse to a client, and the order would effectively make the lawyer represent the wards against the guardian, destroying loyalty.

Q: What about the confidences the lawyer learned from the guardian?

A: The opinion concludes Rule 1.6(a) requires the lawyer to invoke the privilege over the communications about the subject of the complaint unless the client waives it.

Q: How should the children's interests be protected instead?

A: The opinion concludes the better practice is for the chancellor to appoint a guardian ad litem, who can pursue the case for the children without betraying privilege or loyalty owed to the guardian.

Background and rules framework

The opinion applies Mississippi Rules of Professional Conduct 1.6(a) (confidentiality of information) and 1.7(a) (concurrent conflicts; direct adversity), which correspond to the same-numbered Model Rules, in the context of a chancery-court guardianship.

Citations and references

Rules of Professional Conduct (Mississippi; cf. Model Rules):

• MRPC 1.6(a) (confidentiality of information) (cf. Model Rule 1.6)
• MRPC 1.7(a) (concurrent conflict; direct adversity) (cf. Model Rule 1.7)

Statutes:

• Miss. Code Ann. Section 93-13-79 (1972) (court-ordered reimbursement of a guardian's attorney fees).

Cases:

• Hutton v. Gwin, 188 Miss. 763, 195 So. 486 (1940), attorney fees for representing a guardian are the guardian's personal obligation.

Other authority:

• Griffith, Mississippi Chancery Practice, Sections 531 and 532 (2nd ed. 1950) (guardian ad litem).

See also

• MS Bar Ethics Op. 220: Suing a Former Law Partner
• MS Bar Ethics Op. 218: Joint Defense Conflict

Source

• Landing page: https://www.msbar.org/ethics-discipline/ethics-opinions/formal-opinions/204/
• Original PDF: https://www.msbar.org/media/1060/et_op_204-amended.pdf

Original opinion text

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

ETHICS OPINION NO. 204

OF THE MISSISSIPPI BAR

RENDERED October 30, 1992

AMENDED April 06, 2013

CONFLICT OF INTEREST - It is improper for an attorney who represents a guardian of minor wards to file a complaint against the guardian for the guardian's inability to account for Social Security payments received by the guardian during the guardianship.

The Ethics Committee of The Mississippi Bar has been requested to render an opinion on the following question:

May an attorney who represents a guardian of minor children file a complaint against the guardian for inability to account for Social Security payments received during the guardianship when the attorney has discussed this matter with the guardian?

In the facts presented, the attorney states that he has represented the guardian in a Chancery Court minor's guardianship. It has been discovered that the guardian has received and spent Social Security funds belonging to the children and cannot account for the funds. The attorney has discussed this matter with the guardian. Despite the attorney's attempt to withdraw from the case, the Chancellor has ordered the attorney to file a complaint against the guardian. The attorney wants to know if he may ethically do it.

An attorney who represents a guardian is the attorney for the guardian and not the attorney for the ward. In Hutton v. Gwin, 188 Miss. 763, 195 So. 486 (1940), the Supreme Court of Mississippi held that attorney fees incurred in representing the guardian of a minor's estate are the guardian's personal obligations and are not an obligation of the minor's estate itself, except where the Court has ordered that the guardian may be reimbursed his attorney's fees in accordance with Mississippi Code Annotated, Section 93-13-79 (1972). The attorney's duties and loyalty are owed to the guardian and not to the wards of the guardianship.

In view of the attorney/client relationship between the guardian and the guardian's attorney and the privileged communication which the attorney says he has acquired from his client on the subject matter of the proposed complaint, the Ethics Committee is of the opinion that Rules 1.6(a) and 1.7(a) of the Mississippi Rules of Professional Conduct prohibit the attorney from filing the complaint against his client.

Rule 1.6(a) of the MRPC says that:

A lawyer shall not reveal information relating to representation of a client unless the client consents after consultation, except for disclosures that are impliedly authorized in order to carry out the representation, and except as stated in paragraph (b).

In the facts presented, the attorney states that he has acquired privileged communication concerning the subject matter of the complaint which the Chancellor has ordered him to file. Consequently, the attorney must invoke the privilege, unless his client waives it.

More to the point, Rule 1.7(a) provides that:

A lawyer shall not represent a client if the representation of that client will be directly adverse to another client, unless the lawyer reasonably believes:

(1) the representation will not adversely affect the relationship with the other client; and

(2) each client has given knowing and informed consent after consultation. The consultation shall include explanation of the implications of the adverse representation and the advantages and risks involved.

In effect, the Chancellor has ordered the attorney to represent the wards against the guardian, and that representation is directly adverse to the guardian and would have to affect the attorney/client relationship adversely. The Comment to 1.7(a) states that "loyalty is an essential element in the lawyer's relationship to a client." That loyalty will be destroyed if the attorney is compelled to file the complaint.

The better practice would be for the Chancellor to appoint an attorney to serve as guardian ad litem to represent the interests of the minor children. See e.g., Griffith, Mississippi Chancery Practice, Sections 531 and 532 (2nd ed. 1950). The guardian ad litem, unencumbered by past representation of the guardian, could pursue the case vigorously for the children, without the possibility of betraying any privileged communication or loyalty owed to the guardian.