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Ethics Opinion

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RI-176

October 29, 1993

SYLLABUS

    A lawyer may not undertake representation of both a mother and daughter in proceedings to establish a guardianship for the mother when the lawyer knows the mother's and daughter's interests in establishing the guardianship are adverse.

    A lawyer may not undertake representation which requires a client to possess the requisite competence to execute legal documents and also subjects the client to proceedings which, if successful, would adjudge the client to be incompetent to handle legal affairs.

    If a lawyer is disqualified from representation in a matter, a lawyer who joins the disqualified lawyer's firm after the representation was undertaken but before the disqualified lawyer has withdrawn is imputedly disqualified from the matter.

    References: MRPC 1.2(a) and (b), 1.4(b), 1.7(b), 1.9(a), 1.10(a), 1.11(a), 1.16(a), 2.2, 3.3(a)(1).

TEXT

Lawyer A was hired by a daughter to establish a guardianship for her estranged mother, whose affairs were being attended to under a durable power of attorney granted to a third party. The guardianship was contested and ultimately denied. One year later the mother complained to the daughter about activities of the person to whom the mother had given the durable power of attorney, and the daughter agreed to help only if the mother consented to a guardianship. When the mother consented, mother and daughter hired Lawyer A to start a guardianship proceeding. The mother signed a revocation of the durable power of attorney prepared by Lawyer A. The second petition for guardianship was denied by the court, but the presiding judge indicated appointment of a conservator may be possible.

Lawyer B represented the mother in contesting the first guardianship proceeding, and now represents the third party holding the durable power of attorney. On advice of counsel, the third party refuses to release any information to Lawyer A regarding the handling of the mother's assets, although the daughter has information that the assets are being mismanaged.

Lawyer C had served as guardian ad litem for the mother in the original guardianship proceedings and had found the mother to be competent. Lawyer C has subsequently joined the law firm of Lawyer A, and would be handling the litigation concerning the guardianship matter if it proceeds to hearing.

Lawyers A and C ask whether ethics rules require withdrawal of either or both of them. Since Lawyer B has not sought guidance from the Committee, ethics rules applicable to Lawyer B shall not be addressed.

The jurisdiction of the Committee on Professional and Judicial Ethics is limited to expressing its written opinion concerning the ethical propriety of the inquirer's own prospective conduct. The Committee does not answer inquiries by individual members concerning past conduct or the conduct of other lawyers. Matters involving violations of the Michigan Rules of Professional Conduct are for the Attorney Grievance Commission to investigate and prosecute. However, a lawyer who has knowledge that another lawyer has committed a significant violation of the Rules raising a substantial question about that lawyer's honesty, trustworthiness, or fitness as a lawyer, is duty bound to inform the Attorney Grievance Commission. MRPC 8.3.

The starting point in any analysis of conflicts of interest is to determine the existence of a client-lawyer relationship, past or present. In the first petition for guardianship Lawyer A represented the daughter, whose interests were adverse to the mother.

When the daughter and mother visited Lawyer A together, Lawyer A was first required to analyze the prospective representation in light of the prior representation of the daughter. Applying MRPC 1.9(a), the prospective representation of mother and daughter in seeking a revocation of the durable power of attorney and petitioning for guardianship for the mother is not "materially adverse" to the interests of the former client daughter since their common objective is the protection of the mother and the preservation of the mother's assets. Thus, MRPC 1.9(a) does not prohibit the prospective representation.

Since there appear to be no conflicts between the prospective representation and former representation by Lawyer A, Lawyer A must then consider whether current representation of both mother and daughter in the prospective representation is permissible. There are two factors presented by this inquiry which make dual representation of the mother and daughter in the prospective representation improper.

First, the facts reveal that the prospective representation would involve drafting a document whereby the mother revokes a durable power of attorney, and then petitioning for appointment of a guardianship for the mother. If the mother is competent to understand her rights and freely decide to revoke the durable power of attorney, what legitimate grounds may be raised for the establishment of a guardianship? The mother's revocation of the durable power of attorney appears to be evidence of the fact that the mother is capable of handling her own affairs, whereas the guardianship proceeding is indicative of her incapacity to handle her own affairs. The two positions are not reconcilable. If Lawyer A believes that the mother is competent to revoke the power of attorney, it would be improper for Lawyer A to bring the guardianship proceeding because that would require the lawyer to make a false statement of a material fact to the court in violation of MRPC 3.3(a)(1).

Second, the facts state that the original guardianship proceeding was contested by the mother, that the mother and daughter were "estranged," and that the daughter refused to assist the mother with the revocation of the power of attorney unless the mother consented to the guardianship. Lawyer A is aware of these facts. A lawyer has a duty to fully counsel a client regarding the representation and its possible consequences [MRPC 1.2(a)], and to provide a client with all information necessary for the client to make an informed decision [MRPC 1.4(b)]. Applying MRPC 1.7(b), Lawyer A's representation of the mother would be materially limited by the wishes of the daughter to obtain a guardianship. A disinterested lawyer could not reasonably believe the representation of the mother would not be adversely affected. Conversely, the representation of the daughter would be materially limited and adversely affected if Lawyer A fully counseled the mother that the guardianship is not necessary or desirable in obtaining relief from the durable power of attorney.

Lawyer A may not avoid the conflict by viewing the prospective representation under MRPC 2.2, which states:

    "(a) A lawyer may act as intermediary between clients if

      "(1) the lawyer consults with each client concerning the implications of the common representation, including the advantages and risks involved and the effect on the client-lawyer privileges, and obtains each client's consent to the common representation;

      "(2) the lawyer reasonably believes that the matter can be resolved on terms compatible with the client's best interests, that each client will be able to make adequately informed decisions in the matter, and that there is little risk of material prejudice to the interests of any of the clients if the contemplated resolution is unsuccessful; and

      "(3) the lawyer reasonably believes that the common representation can be undertaken impartially and without improper effect on other responsibilities the lawyer has to any of the clients.

    "(b) While acting as intermediary, the lawyer shall consult with each client concerning the decisions to be made and the considerations relevant in making them so that each client can make adequately informed decisions.

    "(c) A lawyer shall withdraw as intermediary if any of the clients so requests, or if any of the conditions stated in paragraph (a) is no longer satisfied. Upon withdrawal, the lawyer shall not continue to represent any of the clients in the matter that was the subject of the intermediation."

As previously discussed, the prospective representation cannot "be resolved on terms compatible with the clients' best interests" as required by MRPC 2.2(a)(2), nor may it be undertaken "impartially and without improper effect on other responsibilities the lawyer has to any of the clients" as required by MRPC 2.2(a)(3).

Nor may Lawyer A undertake the prospective representation on the pretext that the client-lawyer relationship only runs between Lawyer A and the mother, since Lawyer A has facts that show the mother does not want or need a guardianship, even though she may have consented to one before legal consultation.

Nor may Lawyer A undertake the prospective representation under the guise that Lawyer A's participation has been limited pursuant to MRPC 1.2(b), since there are no facts showing that the clients received full consultation regarding the limiting of the objectives of the representation.

MRPC 1.16(a) requires a lawyer to withdraw from representation if the representation will result in violation of the Rules of Professional Conduct. As reasoned above, Lawyer A must withdraw from the guardianship matter. If Lawyer A is disqualified from the representation pursuant to MRPC 1.7(b) or 2.2, then all lawyers in Lawyer A's firm are imputedly disqualified from the matters. MRPC 1.10(a), including Lawyer C.

Although Lawyer C is imputedly disqualified because of Lawyer A's conflict, we think it important to address the question of Lawyer C participating in the matter if Lawyer C were not a member of Lawyer A's firm.

When a lawyer is asked by one person to seek the appointment of a guardian over the person or property of another, the attorney functions as the lawyer for the petitioner and not for the alleged incapacitated person. The law recognizes that the motives of the prospective guardian may be contrary to the legal interests of the prospective ward. See MCLA 700.443; MCLA 700.467 and MCR 5.201. In this inquiry, it is clear that Lawyer A was the attorney for the daughter in the first guardianship proceeding, and that Lawyer C, as guardian ad litem, had fiduciary and statutory duties toward the mother. The original guardianship proceeding was contested, and the interests of the mother and the daughter were adverse.

The facts do not state whether Lawyer C joined Lawyer A in law practice before the durable power of attorney representation was undertaken, or sometime thereafter.

When Lawyer C served as guardian ad litem for the mother, Lawyer C was a "public official" under the purview of MRPC 1.11(a), which states:

    "Except as law may otherwise expressly permit, a lawyer shall not represent a private client in connection with a matter in which the lawyer participated personally and substantially as a public officer or employee, unless the appropriate government agency consents after consultation. No lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in such a matter, unless:

      "(1) the disqualified lawyer is screened from any participation in the matter and is apportioned no part of the fee therefrom; and

      "(2) written notice is promptly given to the appropriate government agency to enable it to ascertain compliance with the provisions of this rule."

Since Lawyer C participated as guardian ad litem in the previous proceeding, and in fact determined that the mother was competent, Lawyer C would be prohibited from participating in the subsequent guardianship matter even if Lawyer C were not a member of Lawyer A's firm.

 
     

 

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