Once the decision is made to place an adult with diminished capacity into a guardianship, ethical duties arise, along with ethical pitfalls for the practitioner. This article seeks to explain the difficulties and duties of counsel in assisting and guiding a ward through a guardianship action and to ensure that when a successor attorney for a ward is sought, it is done ethically.

THE LAWYER’S DUTY

A first duty as counsel for a person, such as a ward in a guardianship, who has diminished capacity is “to as far as reasonably possible, maintain a normal client-lawyer relationship with the client.”[1]

Guardianships are appointed as provided in Title 30 O.S. Section 3-101, which provides that any person interested in the welfare of a person believed to be incapacitated or partially incapacitated may file a petition alleging that the person is incapacitated and requesting the appointment of a general guardian.

As noted in Section 1-103 of Title 30, beyond the purpose of providing a means for caring for incapacitated persons and protecting their rights and resources, a central purpose of guardianship law is to provide for the participation of wards as fully as possible in the decisions that affect them.[2] This is consistent with the provisions of Rule 1.14.

Section 1-103 reiterates the importance of inclusion of the ward in the guardian's decision-making processes in Subparagraph B.2. b., which requires the guardian to "encourage, to the extent reasonably possible, incapacitated or partially incapacitated persons to participate to the maximum extent of their abilities in all decisions which affect them and to act on their own behalf on all matters in which they are able to do so within the limitations imposed by the Court."

Section 3-107 grants the court authority to appoint an attorney for a person who is allegedly in a petition to be an incapacitated or partially incapacitated person at any time after the filing of the petition. It provides conditions for the court to appoint an attorney for the ward and things the court must do as part of that appointment. As one might expect, the court is required to find that such an appointment is in the ward's best interest.[3] The appointment of counsel for the ward permits an investigation by counsel into the propriety of the guardianship to provide light to the court at times when motivations may be suspect.

The statute makes provisions for continuance of the hearing to appoint a guardian to give appointed counsel time to prepare the case for hearing.[4]

Upon appointment, the attorney "shall contact the subject of the proceeding promptly."[5] Interestingly, once counsel has done their job and a guardian is appointed by the court, after due process, "the responsibility of an attorney appointed pursuant to the provisions of this section ceases upon the appointment of a guardian."[6] However, "the court may appoint an attorney to represent a ward at any subsequent proceeding."

SELECTION – FULL OR PARTIAL INCAPACITY

An incapacitated person who has been made a ward in a guardianship is not without the right to select their own attorney. If a ward has the capacity to select an attorney, they have an absolute right to have counsel of their choice.[7]

In Towne v. Hubbard,[8] our Supreme Court discusses at length the constitutional right to be represented by an attorney of one's own choosing. The court stated:

The right to the assistance of legal counsel includes the right to be represented by a legal practitioner of one's own choosing. In Powell v. Alabama, the United States Supreme Court stated, "It is hardly necessary to say that the right to counsel being conceded, a defendant should be afforded a fair opportunity to secure counsel of his own choice." This right to select counsel without state interference is implied from the nature of the attorney-client relationship within the Anglo-American adversarial system of justice, wherein an attorney acts as the personal agent of the client and not of the state. It is also grounded in the due process right of an individual to make decisions affecting litigation placing his or her liberty at risk. Legal practitioners are not interchangeable commodities. Personal qualities and professional abilities differ from one attorney to another, making the choice of a legal practitioner critical both in terms of the quality of the attorney-client relationship and the type and skillfulness of the professional services to be rendered.[9]

In paragraph 15 of its decision, the court in Towne states, "Notwithstanding its constitutional status, the right to select one's own counsel is not absolute. A litigant's choice of counsel may be set aside under limited circumstances, where honoring the litigant's choice would threaten the integrity of the judicial process." Aside from total incompetency, Towne v. Hubbard, supra, holds that a prospective ward is entitled to an attorney of their own choice unless the trial court concludes, after an evidentiary hearing, that the attorney is not independent or has a conflict of interest.

Suppose that the court has, as it does in most cases, appointed an attorney to represent the ward. If the ward seeks other counsel and has some capacity, they have an absolute right to do so, subject to case law and the duties of counsel mandated by Rule 4.2, Rules of Professional Conduct.

Rule 4.2 applies to “communications with any person who is represented by counsel concerning the matter to which the communication relates.” It prohibits a lawyer from communicating “about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order.”

When a ward is totally incompetent, any approach to such a ward without court permission, the permission of the guardian or the consent of the attorney for the ward should constitute an ethical violation under Rule 4.2.

HOLLY STANDARD

In the Matter of the Guardianship of Holly,[10] which deals with a "partially" incapacitated person, the Supreme Court sets out the steps an attorney must go through to enable the ward to have their own choice of an attorney.[11] The court's opinion discusses those steps, beginning with the sentence, "First the ward may choose an attorney," and then the court inserts footnote 7, which states, "This assumes that a ward has the capacity to make a knowing choice."

When a ward lacks the capacity to make a knowing choice, the court should not allow an attorney to displace one that has been appointed by the court. Lacking the capacity to make that choice renders a choice impossible. Allowing an attorney to meet with a totally incapacitated ward threatens the integrity of the judicial process and, without safeguards such as the consent of the attorney, the court and the guardian, violates an attorney’s duties under Rule 4.2.

Comment 3 to Rule 4.2 indicates that the rule applies even though the represented person initiates or consents to the communication. "A lawyer must immediately terminate communication with a person if, after commencing communication, the lawyer learns that the person is one with whom communication is not permitted by this Rule."

Rule 1.14 suggests that if an attorney has already been appointed for a ward, the lawyer should ordinarily look to the representative for decisions on behalf of the client. Because the ward in Holly, supra, had limited capacity, the ward’s nominated counsel was not required to seek approval of the court-appointed counsel or the limited guardian prior to speaking with the ward. Rules 1.14 and 4.2 were relaxed in Holly simply because the ward had restored capacity, and the guardianship was limited.

In a guardianship action, with a guardian appointed to make decisions for the ward, both personal and financial, an outside attorney should be required to get permission from the guardian and the ward's appointed attorney prior to even meeting with a totally incapacitated person. Any meeting with a totally incapacitated ward who has an existing guardian and attorney risks accusations of undue influence, overreaching and rank dishonesty. The optics of such a meeting are awful.

If the ward has the capacity to make a choice, then the choice of an attorney by the ward must be given effect.[12] "The attorney appointed by the court shall be replaced by another attorney if: a.) the subject of the proceeding prefers the services of an attorney other than the one initially appointed for him; b.) the preferred attorney agrees to accept the responsibility; and c.) the subject to the proceeding or the attorney whom he prefers notifies the Court of the preference and the attorney's acceptance of employment." Therefore, if a ward has the capacity to make a choice of counsel, the ethical rules in 4.2 and 1.14 do not stand in a nominated attorney’s way, and that choice must be granted by the court.

However, if the ward lacks the capacity to choose their own attorney, for example, as determined by an expert, no other attorney should be allowed to even approach a totally incapacitated ward.

CONCLUSION

This article should make clear that it is unethical to speak to a totally incompetent ward. Any attorney, regardless of how they were contacted or by whom, should never approach a represented ward who is totally incompetent. This is a bright line that should never be crossed. A Holly hearing should not be authorized by the court when a ward has been determined to be totally incompetent. When a Holly hearing is allowed to occur in the face of demonstrated total incapacity of the ward, the process, the ward’s dignity and the dignity of the court are impugned.

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ABOUT THE AUTHOR

A Tulsa native, Todd Alexander is an experienced family law attorney. He has served as a guardian ad litem for over 20 years and as a parent coordinator in over 100 cases. His practice focuses solely on family law matters, including divorce, paternity, modifications, guardianships and probate. He is an award-winning mediator, frequent CLE presenter and adjunct professor at TU. He and his wife have two grown children, and he is also an amateur musician.

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ENDNOTES

[1] See Rule 1.14, Oklahoma Rules of Professional Conduct.

[2] See Title 30 O.S. Section 1-103 B.

[3] See 3-107 C.2.

[4] See Section 3-107 E. 1.

[5] See Section 3-107 E. 3.

[6] See Section 3-107 F. 1.

[7] See Title 30 O.S. Section 3-107.

[8] Towne v. Hubbard, 2000 OK 30, 3 P. 3d 154, 71 OBJ 960.

[9] See Towne v. Hubbard, supra, at ¶14.

[10] Matter of the Guardianship of Holly, 2007 OK 53, 164 P.3d 137.

[11] See Holly, supra, at ¶3.

[12] Section 3-107 (E) (2).