Ethics Opinion 986
New York State Bar Association
Committee on Professional Ethics
Opinion 986 (10/25/13)
Topic: Whether it is a conflict of interest for a lawyer who represents a mentally incapacitated client in a Medicaid benefits proceeding to also represent the client’s sister in seeking to petition for a guardianship for the client where the incapacitated client’s stated wishes as to living arrangements are contrary to the sister’s position.
Digest: It is a conflict of interest for a lawyer who represents a mentally incapacitated client in a Medicaid benefits proceeding to also represent the client’s sister in seeking to petition for a guardianship for the client where the incapacitated client’s stated wishes as to living arrangements are contrary to the sister’s position.
Rules 1.7, 1.14
1. May a lawyer who represents a mentally incapacitated adult in a Medicaid benefits proceeding also represent that person’s sister in seeking to petition for a guardianship for him where the sister, against the client’s wishes, has refused to remove her brother from a hospital and will not permit him to return to her home?
2. A Legal Services lawyer was retained to represent a severely incapacitated man to appeal the denial of certain Medicaid services. He has been diagnosed with schizophrenia and mental retardation. A recent evaluation concluded that he is “unable to function autonomously, and he cannot make financial or health decisions on his own. He is significantly mentally retarded.” The client is not able to make decisions during the representation and “does not understand what is involved in appealing the denial of Medicaid Services.” The client was assisted by his sister in applying for Legal Aid Services.
3. The sister has cared for and lived with the client until recently, when the client accidentally set fire to the sister’s home. The sister brought him to a hospital where he remains. The hospital wants to discharge the client and his expressed desire is to return to the sister’s home. The sister is unwilling to accept the client back to her home.
4. The attorney states that there is no practical method of protecting the client’s interests other than to have a guardian appointed. There is no other family. Social services agencies have extremely limited resources. The sister is willing to serve as the guardian, but the client is so incapacitated that he is not capable of consenting or objecting to the appointment of his sister as guardian.
5. The attorney asks whether he is permitted to represent the sister in a petition for guardianship over her brother.
6. The lawyer asks whether concurrent representation of client A with significant diminished capacity and another client (B) who seeks to become the guardian for client A is permissible when the stated wishes of client A are directly contrary to the position of Client B as the prospective guardian. To what extent is the lawyer bound by the arguably unreasonable and ill-considered stated desire of the incapacitated client in assessing whether such a conflict exists? What action is permissible by the lawyer?
7. Concurrent conflicts of interest are governed by Rule 1.7 of the Rules of Professional Conduct which prohibits a lawyer from representing clients with “differing interests.” This includes “every interest that will adversely affect either the judgment or the loyalty of a lawyer to a client, whether it be a conflicting, inconsistent, diverse, or other interest. Rule 1.0(f); See also Rule 1.7 Cmts. ,,. The lawyer is expected to be loyal, protect client confidences and provide independent judgment.
8. In the representation of Client A in the Medicaid appeal, the lawyer learned of the client’s stated desire to return to his sister’s home. Living arrangements are a fundamental interest of the client as contemplated by Rule 1.7. Unquestionably, if Client A did not have significant diminished capacity, the lawyer could not undertake to represent his sister in any proceeding where Client A’s stated desires would be undermined, and in this case directly contrary to the client’s wishes, by the lawyer’s representation of another client. 
9. Thus, the question is whether the client’s significantly diminished capacity alters the judgment as to whether the lawyer would be representing “differing interests” if he undertook representation of the sister in the guardianship proceeding. As explained below, it does not.
10. Rule 1.14 seeks to provide guidance to a lawyer in such circumstances. It acknowledges the difficulty of providing diligent and competent representation to clients who have diminished capacity precisely because the client is often incapable of understanding and making decisions about the matter. In such circumstances, even though the representation may be premised upon the goal of maximizing a client’s autonomy and dignity, the lawyer may believe that advocating the client’s stated position to be directly contrary to what the lawyer reasonably believes is the only viable choice for the client with significant diminished capacity. May the lawyer maintain a position contrary to the client’s stated wishes when that client has significant diminished capacity?
11. Rule 1.14 suggests a course of action for the attorney in such circumstances.  First, a lawyer must “as far as reasonably possible” maintain a normal lawyer-client relationship. The fact that a client suffers from mental illness or retardation does not diminish the lawyer’s responsibility to treat the client attentively and with respect. Rule 1.14, Cmt. .
12. Second, Rule 1.14 permits a lawyer to take protective action when the lawyer reasonably believes that the client is at risk of physical, financial, or other harm unless such action is taken. Before considering what measures to undertake, lawyers must carefully evaluate each situation based on all of the facts and circumstances. “Any condition that renders a client incapable of communicating or making a considered judgment on the client’s own behalf casts additional responsibilities on the lawyer.” Roy D. Simon, Simon’s Rules of Professional Conduct Annotated, 662 (2013). One of those responsibilities is to acknowledge that even clients with diminished capacity may have the ability to make decisions or reach conclusions about matters affecting their own well-being.
13. Any protective action taken by the lawyer should be limited to what is essential to carry out the representation. Thus, the lawyer may consult with family members, friends, other individuals, agencies or programs that have the ability to take action to protect the client. The Rule does not specify all of the potential protective actions that may be undertaken, but it makes clear that seeking the appointment of a guardian is the last resort, when no other protective action will protect the client’s interests.
14. This opinion presumes that, before considering guardianship, the attorney has considered and exhausted other options. First, the lawyer has attempted to maintain a normal client-lawyer relationship as best as possible under the circumstances. A primary aspect of that relationship is to maintain communications with the client. The attorney has determined that the client’s stated desire is to return to his sister’s home. Even if the attorney reasonably believes this to be unwise, unreasonable, or otherwise ill advised, the client still deserves attention and respect.
15. Second, before deciding whether to take protective action with respect to the client, the lawyer has a reasoned basis, beyond what he believes to be the client’s ill considered judgments, to conclude that the client cannot act in his own best interests and that protective action is necessary. The lawyer unsuccessfully attempted to communicate with the client, obtained information and assistance from the client’s sister, and sought a medical evaluation.
16. It is not clear whether there are other individuals, community resources or social services agencies that may be of assistance to the client. Nor is it clear whether other options have been explored prior to seeking the appointment of a guardian. This includes an assessment as to whether or not referral to support groups or social services could provide protection to the client.
17. These alternatives should be exhausted prior to seeking the appointment of a guardian. The situation is particularly fraught for clients with limited financial means and social support networks. There are few social services available to assist such clients, thereby leaving the attorney in circumstances with few options to carry out representation as contemplated by Rule 1.14. Therefore, these circumstances require a lawyer to exercise careful judgment to adopt a course of action that best protects the client’s interests.
18. The lawyer must recognize that seeking a guardianship is an extreme measure as it “deprives the person of so much and control over his or life.” In the Matter of the Guardianship of Dameris L., 38 Misc 3d 570 (Sur. Ct. NY Cty 2012) citing Rose Mary Bailly, Practice Commentaries, McKinney’s Con Law of NY, Book 34A, Mental Hygiene Law § 81.01 at 79 (2006). It has been suggested that the lawyer should seek a guardian only if “serious harm is imminent, intervention is necessary, no other ameliorative development is foreseeable, and nonlawyers would be justified in seeking guardianship.” Paul R. Tremblay, On Persuasion and Paternalism: Lawyer Decisionmaking and the Questionably Competent Client, 3 Utah L. Rev. 515, 566. (1997); See 62 Fordham L. Rev. 1073 (1993-1994)
19. Article 81 of the Mental Hygiene Law, allows for the judicial appointment of a legal guardian for one’s personal needs, property management or both, when a person is incompetent to conduct his or her own affairs. N.Y. Mental Hygiene Law § 81.02(a); 81.06 et seq. The statute expects that the system is tailored to meet the individual’s specific needs by taking into account the incapacitated person’s wishes, and preferences. N.Y. State 746 (2001).
20. Assuming that the attorney has undertaken this thorough evaluation of the circumstances, and now reasonably believe that guardianship is the only alternative, that lawyer may seek out others to petition for the guardianship.
21. The guardianship process is initiated by a petition. The lawyer may seek out any available individual, social service agency or private organization to petition for guardianship. Article 81 specifies seven categories of persons who may file such a petition. § 81.06.
22. The court then is required to appoint a court evaluator who will recommend whether the alleged incapacitated person (AIP) requires counsel. The court evaluator will also make recommendations as to who should serve as guardian and make appropriate living arrangements. Any conflicts between the sister and AIP will be addressed by the court evaluator. See e.g., MHL 81.09(c)(5)(xv). It is not apparent whether court evaluators are appointed in all matters as required by statute.
23. The court then considers all of the evidence and determines, by clear and convincing evidence, whether the person is likely to suffer harm because he or she is unable to provide for his or her personal needs and/or property management and cannot adequately understand and appreciate the nature and consequences of this inability. § 81.02 (b).
24. The guardian is to engage in the “least restrictive form of intervention, consistent with the concept that the needs of persons with incapacities are as diverse and complex as they are unique to the individual.” NY Mental Hgy Law §81.01.
25. The attorney may suggest that the sister seek a petition for guardianship and may make suggestions as to individuals or agencies to assist her in completing the petition, but the lawyer may not represent her in petitioning for the guardianship. Her interests are contrary to that of the client. She has clearly stated, contrary to the client’s desires, that she will not permit him to return to her home. Thus, the attorney would be in conflict with his client if he represents the sister and assists her in filing a petition seeking an objective contrary to the client’s stated desire.
26. The lawyer’s position in protecting the client’s interests is complicated by perceived difficulties for lay persons in completing the petition for guardianship and the lack of social service and other resources to assist the family of incapacitated people. The sister may desire to file a petition for guardianship but may be ill-equipped to do so and there may be no assistance available to her. Consequently, it may be that the attorney is the only person who can reasonably seek the appointment of a guardian. In general, a lawyer should only act as petitioner in seeking the appointment of a guardian if there is no one else who reasonably can do so. Simon, Rules of Prof Conduct Annot. at 663, N.Y. State 746 (2001).
27. In general, the interests of the petitioner in a guardianship proceeding are in conflict with that of the client, notably where there will be a contested hearing and the petitioner will serve as a witness. However, where the client does not oppose the guardianship or is incapacitated and cannot express an opinion as to the guardianship, Rule 1.14 implicitly acknowledges that the lawyer may file the petition to seek a guardianship in circumstances where the guardianship will not be subject to a hearing and no one else is reasonably available to file the petition. We previously considered the issue of whether an attorney-in-fact could petition for guardianship for a client and concluded, under the then-existing Code of Professional Conduct, that it was permissible under circumstances such as those presented here where there is no other option and there will not be a contested hearing under Article 81. We considered whether the “dual role” of petitioner in a guardianship proceeding and as client representative was impermissible in these circumstances and concluded that, given other safeguards in the Article 81 proceedings, the dual role was not impermissible. N.Y. State 746 (2001). We affirm that opinion under the Rules of Professional Conduct.
28. Should the attorney file the petition for guardianship, and the court become aware that the sister may be the only person who can be appointed as the client’s guardian, the lawyer should advise the court of the sister’s position regarding the client’s living arrangements. The court can then consider whether, in light of the potential conflict between the client and his sister, she is the appropriate guardian.
29. Thus, using the same reasoning, Connecticut has determined that in these circumstances should the lawyer petition for the appointment of a guardian, the lawyer does not need to withdraw from representation on the underlying Medicaid matter. In circumstances involving clients with disabilities, this is not a preferred course of action. See Connecticut Inf. Opinion 97-19 (1997).
30. Assuming that a guardian is appointed, the lawyer should consult with the client and the guardian as to the position to be asserted in the Medicaid matter. The guardian is the representative of the client. The rationale for the appointment of a guardian is to have someone who can make decisions for the incompetent client. Thus, after the appointment of the guardian, the lawyer generally must take direction from that guardian.
31. Finally, Rule 1.14 is often frustrating because it does not provide solutions to all problems in dealing with clients with diminished capacity. It does, however, provide “an intelligible frame of reference for the lawyer and those who might later judge his conduct.” Geoffrey C. Hazard Jr. and W. William Hodes, The Law of Lawyering, § 1.14:101, p.439. (1990). See Connecticut Inf. Opinion 97-19.
32. It is a conflict of interest for a lawyer who represents a mentally incapacitated client in a Medicaid benefits proceeding to also represent the client’s sister in seeking to petition for a guardianship for the client where the incapacitated client’s stated wishes as to living arrangements are contrary to the sister’s position.
 In some circumstances, the concurrent conflict may be waived, but not in this case. Even if the lawyer reasonably believed that he could provide competent and diligent representation to both Clients A and B, Client A is not capable of providing informed consent to such a waiver. Rule 1.7 (b)
 Rule 1.14 provides that:
(a) When a client’s capacity to make adequately considered decisions in connection with a representation is diminished, whether because of minority, mental impairment or for some other reason, the lawyer shall, as far as reasonably possible, maintain a conventional relationship with the client.
(b) When the lawyer reasonably believes that the client has diminished capacity, is at risk of substantial physical, financial or other harm unless action is taken and 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 related to representation of a client with diminished 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.