Could a former ward's lawyer defend the guardian against the original petitioner's removal proceeding?

Plain-English summary

The lawyer had represented an elderly woman in several matters and later represented her daughter in establishing guardianship of the woman's estate and person. The daughter then retained new counsel and sought removal of the personal guardian as unfit.

The committee viewed the removal case as adversarial and involving a facet of the prior representation. If the lawyer defended the guardian, the lawyer would oppose a former client and might have to resist a result that served the ward's interests.

The ward had never discharged the lawyer and had become unable to employ or discharge counsel. Because the facts did not yet establish whether removal would best protect her, the committee said the lawyer could not prejudge that question by zealously representing the guardian.

The committee found a possible actual conflict and a substantial appearance of impropriety under former EC 9-6 and concluded that the lawyer had to decline the engagement.

Currency note

This opinion was issued in 1971, before Nebraska's adoption of the 2005 Rules of Professional Conduct. Subsequent rule amendments, guardianship statutes, or later opinions may have changed the analysis. Treat this page as historical context, not current guidance.

Common questions

Q: Whom had the lawyer represented before the removal case?

A: The ward in earlier matters and the daughter as petitioner in establishing the guardianship.

Q: Was the guardian-removal proceeding adversarial?

A: Yes. The opinion contrasted it with the inquisitorial appointment proceeding.

Q: Why could defending the guardian harm the ward?

A: The guardian might be incapable or unsuitable, so resisting removal could disserve the ward, who could no longer discharge the lawyer.

Q: Did everyone's awareness of the earlier representation cure the issue?

A: No. The committee still found a possible conflict and an appearance of impropriety.

Background and rules framework

Former EC 9-6 required avoidance of impropriety and its appearance. Canon 7 would require zealous defense of the guardian, which the committee found potentially incompatible with the lawyer's continuing relationship to the ward.

Citations and references

Former Nebraska Code of Professional Responsibility:

• EC 9-6
• Canon 7

Statutes:

• Chapter 38, article 2, Revised Statutes of Nebraska (1943)
• Neb. Rev. Stat. § 38-507 (1943)

Cases:

• Hall v. Hall, 122 Neb. 228, 240
• State ex rel. Nebraska State Bar Association v. Richards, 165 Neb. 80, 93

Other authority cited:

• Wise, Legal Ethics 256, 273 (2d ed. 1970)

See also

• Nebraska Ethics Op. 73-5: Former corporate clients
• Nebraska Ethics Op. 93-1: Guardian ad litem conflict
• Nebraska Ethics Op. 15-2: County attorney as guardian ad litem

Source

• Landing page: Nebraska lawyer ethics opinions archive
• Original PDF: Nebraska Ethics Advisory Opinion 71-5

Original opinion text

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

Nebraska Ethics Advisory Opinion for Lawyers No. 71-5

THE INQUIRER RAISES THE FOLLOWING PROBLEM:

"I HAD REPRESENTED AN ELDERLY LADY IN
A NUMBER OF MINOR LEGAL MATTERS. AS
SHE BECOME LESS ABLE TO HANDLE HER
OWN AFFAIRS, A DAUGHTER PETITIONED
THE COUNTY COURT TO HAVE A
GUARDIANSHIP ESTABLISHED NAMING A
BANK AS GUARDIAN OF THE PROPERTY AND
AN INDIVIDUAL AS GUARDIAN OF THE
PERSON. i ACTED AS ATTORNEY IN THE
ESTABLISHMENT OF THE GUARDIANSHIP.
THIS SAME DAUGHTER HAS NOW RETAINED
OTHER COUNSEL, AND INSTIGATED A
PROCEEDING TO REMOVE THE GUARDIAN
OF THE PERSON ALLEGING HE IS UNFIT TO
SERVE IN THAT CAPACITY.

"IF I NOW REPRESENT THE INTERESTS OF
THE GUARDIAN OF THE PERSON IN THE
REMOVAL PROCEEDINGS, HAVE I PLACED
MYSELF IN A POSITION OF HAVING A
CONFLICT OF INTEREST? IT SHOULD BE
BORN (SIC) IN MIND THAT ALL PARTIES
ARE AWARE OF MY REPRESENTATIVE OF
THE WARD BEFORE THE ESTABLISHMENT
OF THE GUARDIANSHIP, AS WELL AS BEING
ATTORNEY FOR THE GUARDIANSHIP TO
DATE ."

The facts stated in the inquiry indicate that this is not a guardianship of a minor, Chapter 38, Article 1, R.R.S. 1943, nor a spendthrift guardianship, Chapter 38, Article 3, R.R.S. 1943, but, rather, the guardianship of a mentally ill or mentally incompetent person, Chapter 38, Article 2, R.R.S. 1943, as to whom there is guardianship of the estate and the person.

The attorney had represented the ward in a number of legal matters before the guardianship, she became unable to manage her affairs, her daughter petitioned the county court for the appointment of a guardian, and separate guardians for the ward's estate and person were appointed. The attorney represented the daughter in the guardianship proceedings. All parties are aware of the attorney's representation of the ward before guardianship, as well as his representation of the guardians since that time. The daughter has now employed other counsel in a proceeding to remove the guardian of the person because of alleged "unfitness".

Within the foregoing facts, the following question is asked:

If I now represent the interests of the guardian of the person in the removal proceedings, have I placed myself in a position of having a conflict of interest?

Although a proceeding for the appointment of a guardian in inquisitorial in nature, rather than adversary, there is, even so, a hostility to freedom, however benevolent the move, Hall v. Hall, 122 Neb. 228, 240. The proceeding for the removal of the guardian of the person appears to be adversary, inasmuch as the statutory grounds for the removal of a guardian, Section 38-507, R.R.S. 1943, are:

1. That he is insane;
2. That he is otherwise incapable of discharging his trust; and
3. That he is evidently unsuitable.

Accordingly, if the attorney attempted the employment he would appear in opposition to a former client in an adversary proceeding involving one facet of his former employment. There may, or may not be, a conflict of interest in fact, but at this time this can not be predicted. It may bear the indicia of impropriety, however.

However, I am of the opinion that the attorney should decline the employment for a reason which is to me more compelling.

The ward was his client before the guardianship and it may be, and should be, presumed that he served her best interests in the guardianship proceeding. Since that tie she could neither employ nor discharge him. Her best interests may, or may not be, best served by the removal of the guardian of the person. This is an issue of fact which is not resolved at this time. If he represents the guardian of the person and resists the removal proceedings he may be rendering a disservice to the ward. He should not prejudge the matter.

I conclude that there may a conflict of interest and that there will be an appearance of impropriety if the employment is accepted.

The proposed employment falls within the prohibition of EC 9-6, of the Code of Professional Responsibility, which in part provides:

Every lawyer . . . [should] . . . strive to avoid not only professional impropriety but also the appearance of impropriety.

In State ex rel. Nebraska State Bar Assn. v. Richards, 165 Neb. 80, the court said (p. 93):

. . . As said in Opinion 49, of the Committee on Professional Ethics and Grievances of the American Bar Association, page 134:
"An attorney should not only avoid impropriety but should avoid the appearance of impropriety." . . .

In Wise, Legal Ethics, Second Edition, 1970, it is said (pp. 256, 273):

. . . [I]f there is the slightest doubt as to whether a proposed representation involves a conflict of interest between two clients, or between a new client and a former client, or may encompass the use of special knowledge or information obtained through service of another client or while in public office, or necessitates a conflict between the interests of a present or former client and those of the attorney, the doubt can best be resolved by Matthew VI, 24: "No man can serve two masters." . . .

As was said at the outset "No man can serve two masters". If there is the slightest doubt as to whether or not the acceptance of professional employment will involve a conflict between the interests of any client and that of the attorney, or may require the use of information obtained through the service of another client, the employment should be refused.

This opinion is limited to the facts presented here. The ward never discharged the attorney and is now unable to do so. The daughter of the ward was the petitioner in the guardianship proceeding and is now the petitioner in the removal proceeding. The present issue was one of the issues in the guardianship proceedings. The guardian of the person may in fact be insane, otherwise incapable of discharging his trust, or evidently unsuitable. If the attorney accepts the employment, he must zealously represent the guardian, Canon 7, Code of Professional Responsibility, which might be a disservice to the ward who never discharged him.

There appear to be substantial reasons why there will be an appearance of impropriety if the employment is accepted, and, indeed, something more than the "slightest doubt" of which Wise speaks.

Nebraska Ethics Advisory Opinion for Lawyers No. 71-5