Must a lawyer for an infant's guardian tell the court the guardian is violating a court order on the infant's funds?

Plain-English summary

The committee was asked whether an attorney for the guardian of an infant should disclose the guardian's unwillingness to comply with a court order directing the disposition of funds belonging to the infant. It answered yes.

The committee began with the nature of the relationship. Although nominally the attorney for the guardian, the lawyer in fact and legal theory represents the guardian only insofar as the guardian acts as a fiduciary for the infant's benefit; the lawyer's allegiance runs to the infant, whom he represents through the guardian, and he is bound to act in the infant's best interests where those interests conflict with the guardian's actions. The final arbiter of the infant's interests is the court from which the guardian's powers derive and to which the guardian must account. For that reason, the committee held, there can be no confidential or secret information about the guardian's conduct as fiduciary that the lawyer is ethically bound to withhold from the court, citing N.Y. City 269 (1933), which allowed a lawyer to reveal a guardian's willful or reckless disregard of the ward's rights over the guardian's objection.

The committee distinguished the permissive disclosure in N.Y. City 269, which involved a disputed matter of judgment, from the present facts: a clear and continuing violation of a court order. In those circumstances the lawyer should reveal the guardian's misconduct to the court. The committee acknowledged that, effective November 1976, the House of Delegates amended DR 7-102(B)(1) so that no Code provision any longer requires a lawyer to disclose a client's confidences or secrets, resolving the tension between Canons 4 and 7 in favor of preserving confidences (N.Y. State 454 (1976); see DR 4-101(C)(2)). But it concluded that, given the lawyer's relationship to the guardian and the infant and the infant's relationship to the court, no information bearing on the guardian's exercise of his fiduciary responsibilities could be deemed confidential as against the court, leaving the lawyer subject to Canon 7's duty to protect his infant client zealously (EC 7-12). Because the guardian refused to comply, the committee added that the lawyer may also seek to withdraw under DR 2-110(C)(1)(b) and (d). The question was answered in the affirmative.

Currency note

This opinion was issued in 1978, before New York replaced the Code of Professional Responsibility with the Rules of Professional Conduct in 2009 (confidentiality is now governed by Rule 1.6, representation of a client with diminished capacity such as a minor by Rule 1.14, and withdrawal by Rule 1.16). 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: Who is the real client when a lawyer represents an infant's guardian?

A: Under this opinion, the infant. The committee held the lawyer represents the guardian only as a fiduciary for the infant, and owes allegiance to the infant ward.

Q: Could the lawyer keep the guardian's defiance confidential?

A: No. The committee held that no information about the guardian's fiduciary conduct can be confidential as against the supervising court, so the lawyer should disclose the continuing violation.

Q: What else could the lawyer do?

A: Seek to withdraw. The committee noted that, because the guardian refused to comply with the order, withdrawal under DR 2-110(C)(1)(b) and (d) may also be appropriate.

Background and rules framework

The opinion read Canon 4 (confidences and secrets, including the 1976 amendment to DR 7-102(B)(1) and DR 4-101(C)(2)) against Canon 7's duty of zealous representation (EC 7-12), and DR 2-110(C)(1) on permissive withdrawal, in the context of a lawyer whose client is an infant ward acting through a guardian. The current Model Rule analogues are Rule 1.6 (confidentiality), Rule 1.14 (client with diminished capacity), and Rule 1.16 (declining or terminating representation).

Citations and references

Rules of Professional Conduct:

• MR 1.6 (confidentiality of information)
• MR 1.14 (client with diminished capacity)
• MR 1.16 (declining or terminating representation)
• NY Canon 4, Canon 7; EC 7-12; DR 2-110(C)(1), DR 4-101(C)(2), DR 7-102(B)(1)

Other opinions cited:

• N.Y. City 269 (1933): a lawyer may reveal a guardian's disregard of the ward's rights
• N.Y. State 454 (1976): the 1976 amendment eliminating any duty to disclose client confidences

See also

• NY State Bar Op. 525: A prospective client's confession forcing withdrawal
• NY State Bar Op. 530: Turning over physical evidence

Source

• Landing page: https://nysba.org/opinion-496/