When a lawyer believes a client cannot competently handle his own affairs, can the lawyer seek a guardian or representative payee over the client's objection, and reveal confidential information to do it?

Plain-English summary

A lawyer handling a Social Security matter concluded, from confidential communications, that the client was not competent to handle his affairs and was acting against his own interest, for example refusing to cash benefit checks despite obvious need. The lawyer believed a guardian should be appointed under state law or a representative payee under federal Social Security law, but the client refused to let the lawyer seek either or even discuss the problem with the client's family. The first question was whether the lawyer could seek appointment of a guardian or representative payee.

The opinion concluded that the lawyer could. It noted the Rules do not speak directly to the question, but pointed to the comment to Rule 2.8 on discharge and withdrawal, which suggests that a lawyer representing a mentally incompetent client may "in an extreme case ... initiate proceedings for a conservatorship or similar protection of the client." It followed that the lawyer may seek appointment of a guardian or representative payee without the client's consent and over the client's objection if that appears reasonably necessary to protect the client's interests. In doing so, the lawyer may disclose only the belief that a good-faith basis exists for the relief requested and may not disclose the confidential information that led her to conclude the client is incompetent, except as permitted or required by Rule 4(c). The second question (whether confidential information may be revealed to establish the grounds) and the third (whether the lawyer must otherwise withdraw) were answered by reference to the first.

Currency note

This opinion was issued in 1993, before the North Carolina State Bar's adoption of the 2003 revisions to the Rules of Professional Conduct. The State Bar's editor's note directs readers to Rule 1.14 of the Revised Rules for additional guidance. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Can a lawyer seek a guardian for a client who objects?

A: Yes, if reasonably necessary. The opinion concluded the lawyer may seek a guardian or representative payee without the client's consent and over his objection where reasonably necessary to protect the client's interests.

Q: How much can the lawyer disclose to get the appointment?

A: Only the belief that grounds exist. The opinion held the lawyer may disclose only her good-faith belief that a basis for the relief exists, not the confidential information underlying that belief, except as Rule 4(c) permits.

Q: Where did the opinion find authority for this, given the Rules were silent?

A: In the comment to Rule 2.8. The opinion relied on its statement that a lawyer for a mentally incompetent client may, in an extreme case, initiate proceedings for a conservatorship or similar protection.

Background and rules framework

The opinion addressed representation of a client with diminished capacity before North Carolina adopted a dedicated rule; its editor's note now points to Rule 1.14, corresponding to Model Rule 1.14 (client with diminished capacity). It drew authority from the comment to Rule 2.8 (declining or terminating representation) and limited disclosure under the confidentiality rule, citing Rule 4(c), which corresponds to Model Rule 1.6.

Citations and references

Rules of Professional Conduct:

• MR 1.14 (client with diminished capacity)
• MR 1.6 (confidentiality)
• North Carolina Rule 2.8 (comment) and Rule 4(c)

See also

• NC Ethics Op. RPC 163: independent guardian ad litem where the existing guardian has a conflict
• NC Ethics Op. 2012 Formal Op. 9: roles of a lawyer appointed to represent a child
• NC Ethics Op. 2003 Formal Op. 7: power of attorney requested by a prospective attorney-in-fact

Source

• Landing page: https://www.ncbar.gov/for-lawyers/ethics-and-governing-rules/ethics-opinions/opinions/rpc-157/

Original opinion text

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

Editor's Note: See Rule 1.14 of the Revised Rules for additional guidance.

Inquiry #1:

Attorney A represents a client on a social security matter and determines, from confidential communications with his client, that the client is, in the attorney's opinion, not competent to handle his affairs in relation to the representation and that the client's actions in regard to the matters involved in the representation are detrimental to the client's own interest. For example, the client who sought the attorney's assistance with receipt of benefits from the social security administration, refuses to cash checks obtained for the client from social security despite the client's obvious need for financial support. The attorney believes that either a guardian should be appointed for the client under state law or that a representative payee should be appointed for the client under federal social security law. The client refuses to agree for the attorney to seek the appointment of a guardian, to seek the appointment of a representative payee, or even for the attorney to discuss this problem with the client's family. The attorney is of the opinion that the client lacks the capacity to form objectives necessary for a normal attorney/client relationship.

May the attorney seek the appointment of a guardian or a representative payee for the client?

Opinion #1:

Yes. The Rules of Professional Conduct do not speak directly to the question presented. There is language in the comment to Rule 2.8 concerning discharge and withdrawal suggesting that where an attorney is representing a client who is mentally incompetent she may "in an extreme case... initiate proceedings for a conservatorship or similar protection of the client." It follows that Attorney A may under the circumstances described seek the appointment of a guardian or a representative payee without the client's consent and over the client's objection if such appears to be reasonably necessary to protect the client's interests. In so doing, the attorney may disclose only her belief that there exists a good faith basis for the relief requested and may not disclose the confidential information which led her to conclude that the client is incompetent, except as permitted or required by Rule 4(c).

Inquiry #2:

In taking that action, may the attorney reveal confidential information so as to establish the grounds for guardianship or representative payee status?

Opinion #2:

See the answer to Inquiry #1.

Inquiry #3:

If the attorney may not seek appointment of a representative payee or guardian, must the attorney withdraw from the matter?

Opinion #3:

See the answer to Inquiry #1.