Can a lawyer or legal aid office represent a daughter seeking guardianship over her mother when the mother is also a current client of the same office in another matter?

Plain-English summary

A legal aid office is asked by the daughter of an elderly, incompetent woman to represent the daughter in seeking guardianship of her mother. The mother is also a current client of the office in an unrelated matter. The committee was asked whether taking on the daughter for the guardianship petition triggers an impermissible conflict.

The committee applies Rule 1.7, which bars representation directly adverse to another existing client unless the lawyer reasonably believes the representation will not be adversely affected and each client consents after consultation, together with Rule 1.10(a), which imputes any such conflict to every lawyer in the office. Both prongs fail here: it is unlikely the mother's representation would be unaffected by a finding of her incompetence, and an attorney cannot both argue a client is incompetent and treat that client as able to give valid consent. The conflict therefore cannot be cured, and it is imputed office-wide.

The committee then distinguishes a lawyer's separate authority under Rule 1.14, which addresses clients under a disability and allows a lawyer who reasonably believes the client cannot adequately act in her own interest to seek appointment of a guardian or take other protective action. Following ABA Formal Opinion 96-404 (interpreting substantially similar Model Rules 1.7 and 1.14), the committee distinguishes representing a third-party petitioner from the lawyer filing the petition himself: Rule 1.14(b) permits the latter as a narrow exception, but does not authorize representing a third party against the client. So no one in the office may represent the daughter, though the lawyer may consider information the daughter provides in deciding his own Rule 1.14 duties toward the mother, including seeking a guardian himself if her competence is questionable.

Currency note

This opinion was issued in 2003. Virginia's conflict, imputation, and diminished-capacity rules may have changed since. Verify against current rules before relying on any specific requirement mentioned here.

In practice

The opinion holds that, under the Virginia rules as they stood at the time, representing a third party in a guardianship petition against the lawyer's own client is a direct-adversity conflict under Rule 1.7 that cannot be consented to (the client's contested competence defeats valid consent) and is imputed office-wide under Rule 1.10(a). It also holds the same lawyer is not foreclosed from himself seeking a guardian for the client under Rule 1.14(b), the narrow protective-action exception, which is distinct from representing an adverse petitioner.

Common questions

Q: Can a legal aid office represent a daughter seeking guardianship of a mother who is also the office's client?

A: No. The committee holds the representation is directly adverse to the mother under Rule 1.7 and is imputed to the whole office under Rule 1.10(a).

Q: Why can't the conflict be cured by consent?

A: Both Rule 1.7 prongs fail. The mother's representation would likely be adversely affected by a finding of incompetence, and a lawyer cannot argue a client is incompetent while treating her as able to give valid consent.

Q: Can the lawyer ever seek a guardian for the mother?

A: Yes, himself. Under Rule 1.14(b), a lawyer who reasonably believes the client cannot adequately act in her own interest may seek appointment of a guardian. The committee, following ABA Formal Op. 96-404, distinguishes that from representing a third party against the client.

Q: Can the lawyer use what the daughter tells him about the mother?

A: Yes. The committee says the lawyer may consider information the daughter provides about the mother in determining his own Rule 1.14 duties toward the mother.

Background and rules framework

The opinion interprets Rule 1.7 (Model Rule 1.7; direct adversity to a current client and the consent requirements), Rule 1.10(a) (Model Rule 1.10; imputed disqualification across the office), and Rule 1.14 (Model Rule 1.14; representing a client under a disability, including the lawyer's authority to seek a guardian or take protective action). It adopts the analysis of ABA Formal Opinion 96-404 (1996) on the interplay of the substantially similar Model Rules.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.7 / Virginia Rule 1.7(a) (direct adversity; consent prongs)
• Model Rule 1.10 / Virginia Rule 1.10(a) (imputed disqualification)
• Model Rule 1.14 / Virginia Rule 1.14(a)-(b) (client under a disability; protective action)

Other opinions cited:

• ABA Formal Opinion 96-404 (1996): distinguishes a lawyer filing a guardianship petition himself under Rule 1.14(b) from representing a third party petitioner adverse to the client.

See also

• VA LEO 1785: County Attorney Conflict vs BZA
• VA LEO 1774: Patent Work Adverse to a Current Client
• VA LEO 1776: Public Defender Conflict Imputation

Source

• Landing page: https://vsb.org/Site/about/rules-regulations/leo-opinions.aspx
• Original PDF: https://www.vsb.org/common/Uploaded%20files/LEOs/1769.pdf

Original opinion text

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

Committee Opinion
February 10, 2003

LEGAL ETHICS OPINION 1769

CONFLICT – WHETHER AN ATTORNEY CAN
REPRESENT THE DAUGHTER IN GAINING
GUARDIANSHIP OF INCOMPETENT MOTHER
WHO IS CURRENTLY A CLIENT IN AN
OTHER MATTER.

You have presented a hypothetical situation in which a legal aid office has been asked by the
daughter of an elderly, incompetent woman to represent the daughter in seeking guardianship of
her mother. The mother is also currently a client of the legal aid office in an unrelated matter.
Under the facts you have presented, you have asked the committee to opine as to whether the
acceptance of the daughter as a client for this guardianship petition would trigger an
impermissible conflict of interest for the legal aid office.
The appropriate and controlling disciplinary rules relative to your inquiry are Rule 1.7, which
governs concurrent conflicts of interest, and Rule 1.14, which addresses representing a client
with a disability. Rule 1.7 squarely addresses the conflict triggered by an attorney representing
adverse parties in the same matter:
(a)

A lawyer shall not represent a client if the representation of that client will
be directly adverse to another existing client, unless:
(1) the lawyer reasonably believes the representation will not adversely
effect the relationship with the other client; and
(2) each client consents after consultation.

The committee notes that under Rule 1.10(a), any conflict arising under Rule 1.7 for one
attorney would be imputed to every other attorney in the office.
Applying Rule 1.7(a) to the attorney in the present hypothetical presents insurmountable
problems. This committee does not see how that attorney could fulfill either of the two
requirements listed under paragraph (a), above. As for the first requirement, that the
representations not be adversely affected, it seems unlikely that the representation of the mother
in a legal matter would not be adversely affected by a finding of her incompetence. Even were
that hurdle cleared, the second requirement can not be met. This committee sees no way for an
attorney on the one hand to argue that a client is incompetent and, on the other hand, to argue
that the same client can provide valid consent.
Should the attorney in this hypothetical actually consider his client to be incompetent, that
attorney can look to Rule 1.14 for guidance. That rule specifically addresses the difficulties in
representing a client under a disability. The rule does suggest that the lawyer should, “as far as
reasonably possible, maintain a normal client-lawyer relationship” However, should the lawyer
reasonably believe that “the client cannot adequately act in the client’s own interest,” then the
lawyer “may seek the appointment of a guardian or take other protective action.” Rule 1.14(a)

Committee Opinion
February 10, 2003
and (b). Thus, should the attorney in this hypothetical reasonably believe that the mother cannot
adequately act in her own interest, he could seek the appointment of a guardian.
This committee’s two conclusions in this matter - that there would be an impermissible conflict
of interest for the attorney to represent the daughter in seeking a guardian and that, under certain
circumstances, the attorney may permissibly seek appointment of a guardian under Rule 1.14 are not contradictory. This committee believes that in addressing this same dilemma regarding
Rule 1.7 and Rule 1.14, the ABA correctly made a critical distinction. See, ABA 96-404
(1996) 1. In its opinion on this same question, the ABA distinguished between an attorney
representing a third party petitioner and filing the petition himself:
Rule 1.14(b) creates a narrow exception to the normal responsibilities of a lawyer
to his client, in permitting the lawyer to take action that by its very nature must be
regarded as “adverse” to the client. However Rule 1.14 does not otherwise
derogate from the lawyer’s responsibilities to this client, and certainly does not
abrogate the lawyer-client relationship. In particular, it does not authorize a
lawyer to represent a third party in seeking to have a court appoint a guardian for
his client. Such a representation would necessarily have to be regarded as
“adverse” to the client and prohibited by Rule 1.7(a)...

1

The ABA, in this opinion, is interpreting Model Rules 1.7 and 1.14, which are
substantially similar to Virginia’s corresponding rules.

Committee Opinion
February 10, 2003
This committee concurs with the ABA’s analysis of the interplay between Rule 1.7 and Rule
1.14 in the present context. Neither the attorney in this hypothetical, nor anyone in his office,
may properly represent the daughter in petitioning for a guardian for her mother, also a client of
this attorney’s office. Such an action is by its very nature an adverse action with respect to the
mother. However, the attorney may permissibly consider any information provided by the
daughter regarding the mother in determining this attorney’s duties toward the mother with
regard to Rule 1.14. That rule would be the proper source for guidance for this attorney should
he believe the mother’s competence is questionable.
This opinion is advisory only, based only on the facts you presented and not binding on any
court or tribunal.
Committee Opinion
February 10, 2003