ABA Model Rule 1.14 (b) permits an attorney to seek a guardianship of the attorney's own client if the attorney reasonably believes that the client cannot protect his or her own interests. California has no such rule. Current California ethics opinions disagree with the ABA Model Rule, making it risky for a California attorney to take any concrete steps on behalf of the impaired client. However, there is authority that would permit a California attorney to do so. From a policy viewpoint, we should support the ABA approach here in this state.
Sullivan v. Dunne (1926) 198 Cal 183, holds that the client must have capacity to contract in order to give the attorney authority to represent the client in a civil proceeding. In dicta, it states that if the client had contract capacity when hiring the attorney, then lost it, the contract would necessarily end, as the authority of an agent ends when the principal becomes incompetent. Sullivan was cited with approval in Caldwell v. State Bar (1975) 13 Cal. 3rd 488, criticizing an attorney who spent client funds under a power of attorney after the client was adjudicated incompetent.
Meanwhile, there was Conservatorship of Chilton (1970) 8 Cal. App. 3rd 34, where the attorney was introduced to the client by the client's boyfriend, and proceeded to act for the client. The appellate court upheld the trial court's finding that the boyfriend was a designing person seeking to take advantage of the client and denied the attorney's petition for fees. One of the facts used against the attorney was his opposition to the conservatorship, when the existence of the conservatorship was clearly needed to protect the client. Another finding was that he advocated positions taken by a clearly incompetent client. Another was that the client lacked the capacity to enter into an attorney-client relationship.
Notwithstanding these decisions, various ethics opinions of California state and local bars have uniformly opposed any action by an attorney to cooperate in conservatorship proceedings against the attorney's own client. San Diego Opinion 1978-1 concluded that an attorney could not seek a conservatorship for his own client because the attorney would necessarily reveal client secrets. The opinion did not cite Sullivan, Caldwell or Chilton.
The ABA Model Rules of Professional Responsibility were promulgated in 1983. Model Rule 1.14 (b) permits an attorney to seek a guardianship of the attorney's own client if the attorney reasonably believes that the client cannot protect his or her own interests. COPRAC, when commenting in 1986 on proposed changes to the California Rules of Professional Conduct, recommended against a California rule similar to ABA Model Rule 1.14, on the basis that such a move is adverse to the client and also constitutes the revelation of client confidences in violation of Bus & Prof 6068(e). There was no mention of Sullivan, Caldwell or Chilton. All California ethics opinions since this time have followed COPRAC--Los Angeles opinion #450 (1988); COPRAC 1989-112; San Diego opinion 1990-3; Orange County Bar Association Committee on Professionalism and Ethics, Opinion 95-002. Again, none of these opinions mentioned Sullivan, Caldwell, or Chilton.
In 1997, the Estate Planning, Trust and Probate Law Section of the State Bar of California published its guide to assist practitioners in dealing with ethics issues. The guide criticizes the California ethics opinions and calls on the courts to adopt the ABA rules and guidelines. The attorneys who deal with the problem on a daily basis realize that something has to be done, but the various ethics opinions make them pause. I became interested in this issue after receiving calls from several of my clients who did not know what to do when it became obvious their own client was impaired.
At the time this article was written, the American Law Institute was circulating what it expected to be its final draft of the restatement, "The Law Governing Lawyers" (1998). In the section under "The Client-Lawyer Relationship," the draft restatement states that "adjustments" are required to the attorney-client relationship when the client is impaired, and that the lawyer must exercise informed judgment in choosing among "imperfect alternatives." Those alternatives include discussions of the issue with the client's medical providers or relatives, bringing the issue to the attention of the court, and the discretion to seek a guardianship.
The current California ethics opinions leave the attorney with no way to protect the client. After concluding that an attorney would have a conflict of interest, reveal client secrets, or both, about all they can recommend is that the attorney withdraw from representation. That course of action simply leaves a vulnerable client more exposed than before. This stance unfortunately puts the attorney in the role of acting contrary to the client's best interests.
ABA Model Rule 1.14 recognizes that there is a problem and that the problem should be addressed. There are a variety of options that an attorney can consider that help the client while avoiding violation of the rules. The client's interest requires that something be done. The attorney may be the only one who both sees the problems and has the power to do something.
The problem is real. There are incapacitated clients. The ABA overtly grants the attorney discretion to act, and existing California ethics opinions state that to act is wrong. ACTEC and the guide believe that an attorney should be able to act. So does the draft restatement. I agree.
Fortunately, there are at least three California cases on the subject that can be cited in support of attorney action. And the contrary ethics opinions can be distinguished away for the failure to consider those still valid court decisions, as well as for not offering any solution to the problem.
The past California ethics opinions uphold form over substance. The opinions suffer from the implied assumption that there is an all or nothing approach--either you bring the conservatorship action yourself, you represent somebody else doing it or you do nothing. There are other choices. Sometimes it means using a relative, therapist or other intermediary to facilitate communication between attorney and client. As the draft restatement points out, the attorney should act only on reasonable belief, based on appropriate investigation. As discussed in the ABA/BNA Manual on Professional Conduct, the protective action will depend upon the attorney's perception of the client's condition and the client's interests. The attorney may be the only person with the knowledge and power to forestall conduct adverse to the client.
An attorney's course of conduct can be colored by the attorney's personal beliefs and values. Thus, the actions should be limited and least intrusive. Disclosures of client secrets may be limited. They may be made in camera. It may be appropriate for the attorney to suggest the commencement of such proceedings without representing the proposed conservator, or without becoming the conservator. Courts will have to be vigilant, as in Chilton, so that the attorney is not used to take advantage of the impaired person. Courts will have to be careful that any restrictions imposed on conservatees are narrow in order to deal with the specific problem, and not be in a hurry to limit a person's life choices any more than strictly necessary. Attorneys will have to separate their personal philosophical choices from the decisions necessary for the client.
There is also the practical risk recognized in Estate of Moore (1968) 258 Cal. App. 2nd 458, that the client will then seek to terminate the person seeking to establish the conservatorship. If the price of recommending a conservatorship is getting fired, so be it. Hopefully the conservator will be able to protect the client.
As a general rule, an attorney recommends actions to clients and the clients decide what course to take. An impaired client presents challenges that are not easily resolved under customary rules, because the rules assume a rational, sober client. An attorney who reasonably believes that a client is substantially unable to manage his or her own financial resources or resist fraud or undue influence should be able to take protective action with respect to the client's person and property.