Can a New York lawyer who represents a mentally incapacitated client also represent the client's sister in a guardianship petition when the sister's plan conflicts with the client's stated wishes?

Plain-English summary

A Legal Services lawyer represented a severely incapacitated man, diagnosed with schizophrenia and intellectual disability, in appealing a denial of Medicaid services. The client could not make decisions about the representation and wanted to return to his sister's home, but the sister, who had cared for him until he accidentally set fire to her home, refused to take him back and was willing to serve as his guardian. The lawyer believed guardianship was the only practical way to protect the client and asked whether he could represent the sister in petitioning for it.

The opinion concludes that the matter is governed by Rule 1.7 and Rule 1.14. Under Rule 1.7 and the Rule 1.0(f) definition of "differing interests," living arrangements are a fundamental client interest; if the client did not have diminished capacity, the lawyer plainly could not represent the sister in a proceeding that undermines the client's stated wishes. The opinion holds that the client's diminished capacity does not change that conclusion. Because the client cannot give informed consent, the conflict is non-consentable, as the opinion explains in a footnote keyed to Rule 1.7(b).

The opinion then walks through Rule 1.14. A lawyer must, as far as reasonably possible, maintain a normal lawyer-client relationship, and may take protective action when the client is at risk of harm and cannot act in his own interest, but seeking a guardian is a last resort after other options are exhausted. The opinion presumes the lawyer has tried to maintain the relationship, has a reasoned basis beyond disagreement with the client's judgment to believe protective action is needed, and has considered alternatives. It describes Article 81 of the Mental Hygiene Law, the role of the court evaluator, and the clear-and-convincing-evidence standard, noting that any conflict between the sister and the client will be addressed by the court evaluator.

The opinion's resolution is that the lawyer may suggest the sister file a guardianship petition and may point her to individuals or agencies who can help her complete it, but may not represent her, because her interests are contrary to the client's. The opinion adds an important qualification drawn from N.Y. State 746 (2001): where no one else is reasonably available and there will be no contested hearing, Rule 1.14 implicitly allows the lawyer himself to file the petition; if the lawyer does so and the sister emerges as the only possible guardian, the lawyer should advise the court of her position on the client's living arrangements. After a guardian is appointed, the lawyer generally must take direction from the guardian on the Medicaid matter.

In practice

The opinion holds that, under the New York rules as they stood at the time, a lawyer representing an incapacitated client may not also represent a family member whose guardianship objective contradicts the client's stated wishes, and that the conflict is non-consentable because the client cannot give informed consent under Rule 1.7(b). Per the opinion, the lawyer may suggest that the family member petition and may point her to assistance, but may not act as her counsel. The opinion is explicit that, under Rule 1.14, seeking a guardian is a last resort after exhausting alternatives, and that where no one else can reasonably petition and no contested hearing is expected, the lawyer may file the petition himself, disclosing the family member's adverse position to the court if she would be the guardian.

Common questions

Q: Can a lawyer represent both an incapacitated client and a relative petitioning for guardianship over that client?

A: Not when the relative's position contradicts the client's stated wishes. The opinion concludes that living arrangements are a fundamental interest and that representing the sister against the client's expressed desire to come home would be representing differing interests under Rule 1.7.

Q: Does the client's diminished capacity make the conflict waivable?

A: No. The opinion explains that because the incapacitated client cannot give informed consent, the conflict is non-consentable; diminished capacity does not change the differing-interests analysis.

Q: May the lawyer ever petition for a guardian himself?

A: The opinion concludes the lawyer may, but only as a last resort, citing N.Y. State 746 (2001): where no one else is reasonably available to petition and there will be no contested Article 81 hearing, Rule 1.14 implicitly permits the lawyer to file.

Q: What must the lawyer do if the conflicted sister turns out to be the only possible guardian?

A: The opinion says the lawyer should advise the court of the sister's position on the client's living arrangements so the court can weigh whether she is the appropriate guardian.

Q: After a guardian is appointed, who directs the Medicaid representation?

A: The opinion states that the guardian is the client's representative, so the lawyer generally must take direction from the guardian, consulting with both the client and the guardian on the position to assert.

Background and rules framework

The opinion interprets New York Rule 1.7 (concurrent conflicts; the Rule 1.0(f) definition of "differing interests"; the consent conditions in Rule 1.7(b), all analogs of Model Rule 1.7) and Rule 1.14 (client with diminished capacity, Model Rule 1.14). It situates the guardianship mechanics in Article 81 of the New York Mental Hygiene Law, including the court evaluator's role and the clear-and-convincing-evidence standard.

Citations and references

Rules of Professional Conduct:

• MR 1.7 / NY Rule 1.7 (differing interests; Rule 1.0(f); Rule 1.7(b) non-consentable when client cannot consent)
• MR 1.14 / NY Rule 1.14 (client with diminished capacity; protective action; guardian as last resort)

Statutes:

• N.Y. Mental Hygiene Law Article 81, §§ 81.01, 81.02, 81.06, 81.09 (guardianship of an incapacitated person)

Cases:

• In re Guardianship of Dameris L., 38 Misc. 3d 570 (Sur. Ct. N.Y. Cty. 2012), guardianship deprives a person of substantial control and autonomy

Other opinions cited:

• N.Y. State 746 (2001): lawyer may petition for guardianship as a last resort where no one else can and no contested hearing is expected
• Connecticut Informal Opinion 97-19 (1997): lawyer who petitions need not withdraw from the underlying matter

See also

• NY State Bar Op. 1069: simultaneous representation of an immigrant child and proposed guardian
• NY State Bar Op. 1046: court appointments in guardianship when the firm represents the care facility
• NY State Bar Op. 1224: joint clients with diverging interests and diminished capacity
• NY State Bar Op. 1083: forming a nonprofit guardian for nursing home residents

Source

• Landing page: https://nysba.org/ethics-opinion-986/