Must a lawyer share information about a criminal client's case with the client's court-appointed guardian when the client objects?

Plain-English summary

A public defender represented a client who had been adjudicated an incapacitated person because of a mental disability, and whose mother was appointed guardian with "full" authority over legal matters. The guardian insisted on being consulted about case strategy and key decisions, while the client told the lawyer not to discuss the case with the guardian. The lawyer asked (1) whether he must communicate with the guardian over the client's instruction to keep the information confidential, and (2) if so, who decides matters like entering a plea, waiving a jury, or whether the client testifies. He noted the questions did not concern the client's competency to stand trial.

The committee applied Rule 1.14 (client with limited capacity), which directs the lawyer to maintain a normal client-lawyer relationship as far as reasonably possible, protects representation information under Rule 1.6, and (when taking protective action) authorizes disclosure only to the extent reasonably necessary to protect the client. Drawing on the rule's comments, the annotated Model Rules, ABA Formal Opinion 96-404, a North Carolina opinion, and Guardianship of Hocker, the committee explained that where a court has appointed a guardian, the lawyer should ordinarily look to the guardian for decisions, must be cognizant of the scope of the guardian's powers, and should still accord the client the status of client and maintain communication. North Dakota's guardianship statute (N.D.C.C. ch. 30.1-28) requires the appointing order to specify whether the guardian has full, limited, or no authority over legal matters; here the order gave full legal authority.

On the first question, the committee concluded the lawyer does have an obligation to communicate with the guardian, even over the client's objection, but the extent and scope of that communication is limited by Rule 1.14(c) to what is reasonably necessary to protect the client's interests, and the lawyer must keep the client's best interests foremost (and may have to act if the guardian works against the client). On the second question, who decides the plea, jury waiver, or whether the client testifies, the committee declined to opine, calling it a matter of due process and constitutional law beyond its purview and noting that Rule 11(b) of the North Dakota Rules of Criminal Procedure requires the court to address the defendant directly. It advised the lawyer to explain his obligation to the client, and noted that if the client continued to forbid communication, the lawyer might have to withdraw or seek court intervention.

In practice

This 2009 opinion applies North Dakota Rules of Professional Conduct 1.14 and 1.6. Under those rules, the committee held that where a court has given a guardian full authority over a client's legal matters, the lawyer has an obligation to communicate with the guardian even over the client's objection, but only to the extent reasonably necessary to protect the client's interests; the lawyer must still treat the client as a client and keep the client's best interests foremost, and may need to act if the guardian works against the client. The committee declined to decide who controls decisions like the plea, jury waiver, or whether the client testifies, treating those as questions of constitutional law outside its purview, and noted the lawyer may have to withdraw or seek court intervention if the client continues to forbid communication with the guardian.

Common questions

Q: Must a lawyer talk to a client's guardian when the client says not to?

A: Where a court has given the guardian full authority over legal matters, yes. The committee concluded the lawyer must communicate with the guardian even over the client's objection, but only to the extent reasonably necessary to protect the client's interests under Rule 1.14(c).

Q: Does having a guardian strip the client of the lawyer's attention?

A: No. The committee said the lawyer must still accord the client the status of client, maintain communication, and keep the client's best interests foremost, and may have an obligation to act if the guardian works against the client.

Q: Who decides the plea, jury waiver, or whether the client testifies?

A: The committee declined to answer, calling it a question of due process and constitutional law beyond its purview, and noted that Rule 11(b) of the North Dakota Rules of Criminal Procedure requires the court to address the defendant directly.

Background and rules framework

The opinion interprets North Dakota Rules of Professional Conduct 1.14 (Model Rule 1.14, client with limited capacity) and 1.6 (Model Rule 1.6, confidentiality). It reads Rule 1.14 together with North Dakota's guardianship statute (N.D.C.C. ch. 30.1-28), which requires the appointing order to state the scope of the guardian's authority over legal matters, and with ABA and out-of-state authority on representing clients who have appointed representatives.

The opinion is issued under North Dakota Rule for Lawyer Discipline 1.2(B), the safe-harbor provision protecting good-faith reliance on a written ethics-committee opinion.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.14 / N.D.R. Prof. Conduct 1.14 (client with limited capacity)
• Model Rule 1.6 / N.D.R. Prof. Conduct 1.6 (confidentiality of information)
• N.D.R. Lawyer Discipline 1.2(B) (safe harbor for reliance on a committee opinion)

Statutes:

• N.D.C.C. ch. 30.1-28 (guardians of incapacitated persons; scope of authority over legal matters)

Cases:

• In re Guardianship of Hocker, 791 N.E.2d 302 (Mass. 2003) (effect of an adjudication of incompetence)

Other opinions cited:

• ABA Formal Op. 96-404 (client under a disability)
• North Carolina Ethics Op. 98-16 (duty of loyalty to the client, not the guardian)

See also

• ABA Formal Op. 96-404: Client Under a Disability
• SBAND Ethics Op. 08-01: Agent, POA, and Medicaid Conflict
• AL Ethics Op. 1995-03: Guardian for a Disabled Client

Source

• Landing page: https://www.sband.org/page/ethics_opinions
• Original PDF: https://cdn.ymaws.com/www.sband.org/resource/resmgr/docs/for_lawyers/opinion_09-03.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.

STATE BAR ASSOCIATION OF NORTH DAKOTA
ETHICS COMMITTEE

Opinion No. 09-03

The Ethics Committee received a request for an opinion on whether the
Requesting Attorney (RA) is obligated to share information regarding representation of a
ward with the ward’s legal guardian in a criminal matter.

Il. FACTS.

The RA is a public defender whose client has been declared “an incapacitated
person” because of a mental disability. The RA’s client's mother was appointed
guardian and the Letters of Guardianship provide:

The powers and duties conferred upon the [Guardian] ... [is] appropriate

as the least restrictive form of intervention consistent with the ability of the
ward for self care are as follows:

X FULL LIMITED NONE LEGAL MATTERS

The clients guardian has insisted that consistent with the Letters of
Guardianship, the attorney communicate with her about the case and allow her to have
input concerning case strategy and essential client decisions. The client, however, has
said that she does not want the RA to discuss the case with the guardian. With those
facts in mind, the RA poses two questions: (1) whether he has an obligation to
communicate with the guardian regarding representation over the express instructions of
the client to keep the information confidential; and (2) if he has an obligation to
communicate with the guardian, who has authority to make decisions about entries of

pleas, waiver of jury trial, or whether the client will testify at trial.

The RA makes it clear that his questions do not relate to his client's competency
to stand trial or to any defenses to the charges against her based on mental disease or
defect. The RA further goes on to state that he does not believe that his thoughts on his
client's competency would be dispositive on whether he has any duties to the guardian.

ll. DISCUSSION.

The relevant Rule of Professional Conduct is Rule 1.14 “Client With Limited
Capacity.” The Rule states:

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

(b) When the lawyer reasonably believes that the client has limited
capacity, is at risk of substantial physical, financial, or other harm unless
action is taken, and the client cannot adequately act in the client's own
interest, the lawyer may take reasonably necessary protective action,
including consulting with individuals or entities that have the ability to take
action to protect the client and, in appropriate cases, seeking the
appointment of a guardian ad litem, conservator, or guardian.

(c) Information relating to the representation of a client with limited

capacity is protected by Rule 1.6. When taking protective action pursuant

to paragraph (b), the lawyer is impliedly authorized under Rule 1.6(a) to

reveal information about the client, but only to the extent reasonably

necessary to protect the client's interests.
N.D.R. Prof. Conduct 1.14. The Rule requires that the lawyer, as far as reasonably
possible, maintain a normal attorney-client relationship with a client with diminished
capacity. Id. at (a). Absent consent, information relating to representation must be
maintained confidential except to the extent reasonably necessary to protect the client's

interests when the client cannot adequately act in the client's own interests and is at risk

of substantial harm. Id. at (b) and (c).

The comments provide further guidance and state in part:

[1] A normal client-lawyer relationship exists in those situations where the
client, when properly advised and assisted, is capable of making or
communicating responsible decisions concerning the client's person or
affairs. ... Maintaining a normal client-lawyer relationship also may not be
possible if the client has limited capacity. Limited capacity may result from
e.g. mental illness, mental deficiency, physical illness, or disability,
chronic use of drugs, chronic intoxication, or other such cause.

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[3] The fact that a client is a minor or has limited capacity does not
diminish the lawyer's obligation to treat the client with attention and
respect. Even if the person has an appointed representative, the lawyer
should as far as possible accord the represented person the status of
client, particularly in maintaining communication. Appointed
representatives include guardians ad litem, conservators, guardians,
individuals appointed in a durable power of attorney or in an advanced
health care directive.

[4] Family members or other persons may serve as representatives of a
client with limited capacity in discussions with the lawyer. The lawyer
must keep the client's interests foremost and, except for protective action
authorized under paragraph (b), must look to the client, and not the
representatives, to make decisions on the client's behalf.

[5] If the client has an appointed representative, the lawyer should
ordinarily look to the representative for decisions on behalf of the client.
The lawyer should be cognizant of the extent of the powers and duties
conferred upon the client's appointed representative. ... Where the client
is the appointed representative as distinct from the minor or the person
with limited capacity and a lawyer knows that the appointed
representative is acting adversely to the interests of the person with
limited capacity, the lawyer may have an obligation to prevent or rectify
the appointed representative's misconduct.

N.D.R. Prof. Conduct 1.14, Comments 1, 3-5.'

There are no North Dakota ethics opinions on point, nor has the North Dakota

Supreme Court addressed this issue. The ABA Model Rules of Professional

Responsibility (Annotated) (2007) (Model Rules) provide some guidance with respect to

' The Comments to the Rule conclude, while not directly addressing this situation, that a “lawyer’s position

in such cases is an unavoidably difficult one.” Id. at Comment 9.

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the RA’s ethical duties (p. 216). The annotation to the Model Rules indicates that the
maintenance of a “normal client-lawyer relationship” may be difficult or impossible
because of the client’s diminished capacity. Id. (citing ABA Formal Ethics Opinion, O.
96-404 (1996)). A lawyer who represents a client with diminished capacity must, where
reasonably possible, communicate with that client, comply with the client’s objectives,
work with her, and make sure the client is informed concerning the representation. Id.
The comments to North Dakota’s Rule 1.14 also clearly state that where the
client has an appointed guardian, the lawyer should “ordinarily” look to the guardian for
decisions on the client’s behalf. N.D.R. Prof. Conduct, Comm. 5. Further, the Comment
requires a lawyer to recognize the extent of powers conferred upon the guardian by a
court. In this case, the RA has indicated that the Letters of Guardianship provide that
the powers conferred upon the guardian are consistent with the ward’s abilities to care
for herself and include “full” powers with respect to legal matters. The annotated Model
Rules also indicate that where the client has a legal representative appointed by a court,
the lawyer would ordinarily look to that representative for decisions made on the client’s
behalf. ABA Model Rules of Prof. Responsibility (Annotated) (2007), p. 218 (citing In re

Guardianship of Hocker, 791 N.E.2d 302 (Mass. 2003) (indicating that “adjudication of

incompetence and appointment of guardian ends_ court-appointed lawyer's
representation of proposed ward unless guardian chooses to continue it.”). However,
what may ordinarily be required must be limited by the nature of the representation,
particularly in criminal matters, and the lawyers other obligations under the rules

including Rule 1.6.

Chapter 30.1-28 of the North Dakota Century Codes deals with guardians of
incapacitated persons. When dealing with the procedures for court appointment of a
guardian of an incapacitated person, the petition seeking appointment of a guardian
must clearly state: “[T]he extent of the guardianship sought, including whether the
nominated guardian seeks to have full authority, limited authority, or no authority in each
area of residential, educational, medical, legal, vocational, and _ financial
decisionmaking.” N.D.C.C. § 30.1-28-03(2)(f). The order appointing a guardian also
limits the powers of the guardian to those specified in the order. N.D.C.C. § 30.1-28-
04(5). In addition to conferring powers upon the guardian, a district court must state
whether the guardian has “no authority, general authority, or limited authority’ in making
decisions on the ward’s behalf when it comes to legal matters. Id. The orders
appointing the guardian in case of the RA’s client, confer “full” legal authority on the
guardian. Therefore, a district court in North Dakota has determined that the RA’s client
is incapacitated to the point where the guardian was vested with full rights to make
determinations with respect to “full” legal matters.

One Supreme Court has indicated that when a person has had guardianship

proceedings in front of a court, in essence, the person is not capable of taking care of

herself. Guardianship of Hocker, 791 N.E.2d 302, 307 (Mass. 2003). |The

Massachusetts court stated:

When a person is adjudicated incompetent, as Hocker has been, “[t]he
necessary effect ... is that the ward is in law ... incapable of taking care of
himself, as to all the world.” Fazio v. Fazio, supra at 399-400, 378 N.E.2d
951, quoting Leggate v. Clark, 111 Mass. 308, 310 (1873). The
permanent guardian stands in the place of the ward in making decisions
about the ward's well-being, and the guardian is held to high standards of
fidelity in exercising this authority for the ward's benefit. See, e.g.,
Dolbeare v. Bowser, 254 Mass. 57, 61, 149 N.E. 626 (1925) (guardian's

“authority and interest extend only to such things as may be for the
benefit or advantage of the ward”); Smith v. Smith, 222 Mass. 102, 106,
109 N.E. 830 (1915) (relationship between guardian and ward is fiduciary
as matter of law). To be sure, an adjudication of incompetency under
G.L. c. 201, § 6, does not obviate the need for a guardian or a judge to
consult a ward's feelings or opinions on a matter concerning his care.
See Doe v. Doe, 377 Mass. 272, 279, 385 N.E.2d 995 (1979). It does not
make the ward any less worthy of dignity or respect in the eyes of the law
than a competent person. See Superintendent of Belchertown State Sch.
v. Saikewicz, 373 Mass. 728, 745, 370 N.E.2d 417 (1977). It does not
deprive the ward of fundamental liberty interests. See Guardianship of
Doe, 411 Mass. 512, 517-518, 583 N.E.2d 1263, cert. denied sub nom.
Doe v. Gross, 503 U.S. 950, 112 S.Ct. 1512, 117 L.-Ed.2d 649 (1992).
But the rights and interests of one adjudicated to be incompetent must of
necessity and “for the benefit or advantage of the ward,” Dolbeare v.
Bowser, supra at 61, 149 N.E. 626, often be vindicated in a manner
different from that of the mentally competent.

Id. A North Dakota district court has determined that the RA’s client in this case is
incapacitated to the point where her guardian was vested with rights to make
determinations with respect to “full” and legal matters. However, according to the
information provided, RA’s client remains competent to stand trial in the criminal
proceeding for which RA is providing representation.

The RA is faced with a difficult situation. One ethics opinion out of North Carolina
indicates that under Rule 1.14(a), “[t]he lawyer owes a duty of loyalty to the client and
not to the guardian or legal representative of the client, particularly if the lawyer
concludes that the legal guardian is not acting in the best interest of the client.” N.C.
Ethics Opinion 98-16. The North Carolina Ethics Committee went on to say that when a
guardian has been appointed for a client, the lawyer may turn over materials in a client’s
file to the guardian if the release is consistent with the purpose of the representation of

the client, or consistent with express instructions of the client. Id.

The RA’s first question is whether he has an obligation, under the North Dakota
Rules of Professional Responsibility, to communicate with the guardian regarding
representation over express instructions of the client to keep the information
confidential. It is the Committee’s opinion that he does, in fact, have a responsibility to
communicate with the guardian in this matter. However, the extent and scope of those
discussions is entirely another matter, and is limited under Rule 1.14(c) “to the extent
reasonably necessary to protect the client's interests.”

The second question posed by the RA was, if he has an obligation to
communicate with the guardian, who then has the authority to make decisions regarding
entry of a plea, waiver of a jury trial, or whether the client will testify at trial? The answer
to this question is much more complex. The question raises significant due process and
other constitutional issues, questions of law that are beyond the purview of the Ethics
Committee. We note, as an example, that Rule 11(b) of the North Dakota Rules of
Criminal Procedure require the court to address the defendant in open court to
determine his understanding of his rights, and to ensure that the defendant's plea is
voluntary. The rule is based on constitutional requirements, and may go beyond any
ethical considerations.

lil. CONCLUSION.

In answering the RA’s first question, it is the Committee’s determination that he
does have an obligation to communicate with his client's guardian, even though the
client has expressed that he not do so, but only to the extent necessary to protect the
client’s interests. Guardianship proceedings were held in accordance with North Dakota

law, and the client's guardian was vested with “full” powers over legal matters. The

comments indicate that the attorney should ordinarily look to the guardian for decisions
on behalf of the client and the lawyer should consult with the guardian with respect to
the client’s legal representation. Once again, however, the obligation to communicate
with the guardian as to the extent, nature, and scope of the representation is entirely
another matter which is limited by Rule 1.14(c) and the RA must look to the client’s best
interests. Even though the client has a guardian, the attorney should, as far as possible,
accord the client the status of client, and particularly maintain communication with her in
all matters pertaining to the representation. If the RA is concerned that the guardian is
acting adverse to his client’s interests, the RA may be obligated to prevent or rectify the
guardian’s alleged misconduct.

The second question posed by the RA, asking who has the authority to make
decisions regarding a plea, waiver of a jury trial, or whether the client will testify, is a
question of law beyond the purview of the Ethics Committee. Therefore, the Ethics
Committee is unable to address or answer the RA’s second question.

The RA should explain to his client that he has an obligation to communicate with
the guardian and if the client continues to forbid such communication, the RA may be
forced to withdraw from the case or seek court intervention.

This Opinion was drafted by Anthony J r and was _ adopted by a maj f

the Committee on July 16, 2009.

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