I prepared a will years ago for an elderly client whose mental health has since declined, with suspected Alzheimer's. One of the client's adult children wants me to represent them in a guardianship petition over my own client. Is that a conflict, and if not, who do I end up representing?

Plain-English summary

The inquiring attorney had prepared a will years earlier for an elderly client whose mental health had since deteriorated, with a neurological physician telling the family Alzheimer's disease was suspected. One of the client's adult children asked the attorney to represent them in a petition for guardianship over the client, and the attorney believed a guardianship was in the client's best interest.

The panel quoted Rule 1.14(a) and (b): subsection (a) requires the lawyer to maintain, as far as reasonably possible, a normal client-lawyer relationship when the client's decision-making ability is impaired; subsection (b) permits the lawyer to seek a guardian's appointment or take other protective action only when the lawyer reasonably believes the client cannot adequately act in the client's own interest. Given the deteriorated mental health and suspected Alzheimer's, and the attorney's belief that guardianship served the client's best interest, the panel found Rule 1.14 permitted the attorney to represent the individual seeking that guardianship, quoting the rule's commentary that a lawyer should see to a legal representative's appointment where it would serve the client's best interests, subject to the lawyer's professional judgment.

The panel then addressed who the resulting representation runs to. It held an attorney for a guardian may have obligations to both the guardian and the ward, generally where the guardian's actions are adverse to the ward's interest, citing its own prior Opinion 92-23 for the proposition that a ward is not a third party to whom the attorney owes no duty. It quoted Rule 1.14's commentary that a lawyer representing a guardian who becomes aware the guardian is acting adversely to the ward's interest may have an obligation to prevent or rectify that misconduct, and Rule 1.2's commentary on special obligations to a beneficiary when the client is a fiduciary.

In practice

The opinion holds that, under the Rhode Island rules as they stood at the time of the opinion, Rule 1.14 permits a lawyer to represent a petitioner seeking guardianship over the lawyer's own client when the lawyer reasonably believes guardianship serves the client's best interest, without that representation itself being a conflict of interest. The opinion further holds that once the guardian relationship exists, the lawyer for the guardian may owe independent ethical obligations to the ward, triggered specifically where the guardian's actions become adverse to the ward's interests.

Common questions

Q: Can I represent someone who wants to be appointed guardian over my own existing client?

A: Yes, according to this opinion, if the lawyer reasonably believes guardianship is in the client's best interest. The panel held Rule 1.14 permits this without it being a conflict of interest.

Q: Once I'm representing the guardian, do I still owe any duties to the person under guardianship (the ward)?

A: Potentially yes. The panel held the lawyer may have obligations to the ward, particularly if the lawyer becomes aware the guardian is acting adversely to the ward's interests.

Q: What's the standard for deciding whether to help seek a guardian for my own client?

A: Rule 1.14(b), as quoted in the opinion: the lawyer may seek a guardian's appointment only when the lawyer reasonably believes the client cannot adequately act in the client's own interest.

Background and rules framework

The opinion applies Rule 1.14(a), (b) (Client Under a Disability), the Model Rule counterpart of the same number, quoted in full along with its commentary on seeing to a legal representative's appointment and on a guardian's-lawyer's obligation to prevent or rectify a guardian's misconduct adverse to the ward. It also references Rule 1.2's commentary on a fiduciary client's lawyer owing special obligations to a beneficiary.

Citations and references

Rules of Professional Conduct:

• MR 1.14(a), (b) (Client Under a Disability) / RI Rule 1.14(a), (b), including commentary
• MR 1.2 commentary (special obligations where the client is a fiduciary) / RI Rule 1.2 commentary

Other opinions cited:

• R.I. Sup. Ct. Ethics Advisory Panel Op. 92-23 (1992): attorney for a guardian owed ethical and fiduciary duty to the ward to take remedial steps upon learning of the guardian's willful misappropriation of estate funds

See also

• Alabama State Bar Op. 1995-03: Seeking a Guardian for a Client With Diminished Capacity
• ABA Formal Op. 96-404: Client Under a Disability

Source

• Landing page: https://www.courts.ri.gov/attorney-resources/Pages/Ethics-Advisory-Panel-default.aspx
• Original PDF: https://www.courts.ri.gov/Opinions/EAP%202004-01.pdf

Original opinion text

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

Final

                Rhode Island Supreme Court Ethics Advisory Panel
                     Opinion No. 2004-01 Request No. 875
                              Issued March 5, 2004

FACTS:

    The inquiring attorney prepared a will for an elderly client several years ago. Since

that time, the client’s mental health has deteriorated and a neurological physician has told
the client’s family that Alzheimer’s disease is suspected. One of the client’s adult
children has asked the inquiring attorney to represent him/her in a petition for guardianship
over the client. The inquiring attorney states that he/she believes that a guardianship is in
the elderly client’s best interest.

ISSUE PRESENTED:

    (a) Is the inquiring attorney’s representation of an individual in a petition for

guardianship over the inquiring attorney’s elderly client a conflict of interest? (b) If not,
will the representation run to both the elderly client and the petitioner/guardian?

OPINION:

    (a) Rule 1.14 permits the inquiring attorney to represent an individual in a petition

for guardianship over the inquiring attorney’s own client provided the inquiring attorney
reasonably believes that a guardianship is in the client’s best interest. (b) In addition to
the ethical obligations that arise under the attorney-client relationship between the
guardian/petitioner and the inquiring attorney, the inquiring attorney also may have ethical
obligations to the ward where the actions of the guardian are adverse to the interests of the
ward.

REASONING:

    Rule 1.14 of the Rules of Professional Conduct states:

           (a) When a client's ability to make adequately considered
           decisions in connection with the representation is impaired,
           whether because of minority, mental disability or for some
           other reason, the lawyer shall, as far as reasonably possible,
           maintain a normal client-lawyer relationship with the client.

           (b) A lawyer may seek the appointment of a guardian, or
           take other protective action with respect to a client, only

Final 2004-01
Page 2 of 2

            when the lawyer reasonably believes that the client cannot
            adequately act in the client's own interest.

    The inquiring attorney’s elderly client’s mental health has deteriorated and

Alzheimer’s disease is suspected. Further, the inquiring attorney believes that a
guardianship for the client is in the client’s best interest. Rule 1.14 permits the inquiring
attorney to seek the appointment of a guardian for the client under these facts and
circumstances. Indeed, the Commentary to Rule 1.14 instructs that “[i]f a legal
representative has not been appointed, the lawyer should see to such an appointment where
it would serve the client’s best interests. . . . Evaluation of these considerations is a matter
of professional judgment on the lawyer’s part.” Thus, it is not a conflict of interest for the
inquiring attorney to represent an individual who seeks a guardianship over the inquiring
attorney’s own client.

    An attorney for a guardian may have obligations to both the guardian and the ward.

These obligations generally arise where the guardian’s actions are adverse to the ward’s
interest. Under such circumstances, the ward of an estate is not some third party to whom
an attorney owes no duty. Rhode Island Sup. Ct. Ethics Advisory Panel Opinion 92-23
(1992). According to the Comment to Rule .1.14:

            If the lawyer represents the guardian as distinct from the
            ward, and is aware that the guardian is acting adversely to
            the ward’s interest, the lawyer may have an obligation to
            prevent or rectify the guardian’s misconduct.

The Comment to Rule 1.2 also recognizes that “where the client is a fiduciary, the lawyer
may be charged with special obligations in dealings with a beneficiary.” See also R. I.
Sup. Ct. Ethics Advisory Panel Opinion 92-23 (1992) (attorney owed ethical and fiduciary
duty to ward to take remedial steps where attorney for guardian had knowledge of
guardian’s willful misappropriation of estate funds.)

    The Panel concludes that it is not a conflict of interest for the inquiring attorney to

represent a petitioner in a petition for guardianship over the inquiring attorney’s own
elderly client where the inquiring attorney reasonably believes that a guardianship is in the
elderly client’s best interest. The Panel further concludes that in addition to the
obligations that arise under the attorney-client relationship between the inquiring attorney
and the petitioner/guardian, the inquiring attorney also may have ethical obligations to the
ward as where the actions of the guardian are adverse to the interests of the ward.