State Bar of Michigan
Volume 5, Issue 2, June 2009
Part 2 of 2 (View Part 1)

Disabilities Project Newsletter

Conflicts Involving Counsel and
Adult Clients With Cognitive Disabilities
by J. Kay Felt, Of Counsel, Dykema Gossett PLLC

Scope

This article is a companion to “Conflicts in Guardianships of Adults.” General issues related to conflicts in the conduct of guardianships or proceedings potentially leading to guardianships of adults under the Estates and Protected Individuals Code (EPIC) are covered in that article. Some of the factual scenarios and general issues covered in that article are also relevant to conflicts discussed in this article.

This article focuses on conflicts involving counsel. It is not surprising that misunderstandings and even frank conflicts may arise when an attorney is representing a client with a cognitive disability. In some cases, the client may be a Ward in a guardianship; proceedings possibly leading to guardianship may be pending; or the client may still be functioning in a quasi-independent state.

Although there are a number of situations that can be problematic, three situations are particularly ripe for conflict:

1. When the client and counsel have difficulty communicating;
2. When counsel recognizes that the client may no longer be capable of self-management, and may need a guardian; and
3. When disputes arise among the client and other family members as to issues relating to guardianship, where counsel has represented the client and other family members, whether in the same or unrelated matters.

This article draws heavily on the Michigan Rules of Professional Conduct (MRPC). Unless otherwise indicated, the use of the term “Rule” in this article refers to the designated Rule in the MRPC. There is a Commentary to each Rule, which aids in interpretation; however, only the Rules are authoritative.

Relationships between Counsel and Client

Rule 1.14 applies specifically to relationships with clients under a disability. Under that Rule, counsel is required, as far as reasonably possible, to maintain a normal attorney-client relationship with the client (Rule 1.14(a)), to accord the client proper attention and respect (Commentary to Rule 1.14), and to maintain appropriate communication with the client. (Rule 1.4(a) covers the duty to keep a client reasonably informed about a matter, and Rule 1.4(b) covers the duty to explain a matter to the extent reasonably necessary to enable the client to make informed decisions.)

Communication

There can be practical difficulties in communicating with a client who has difficulty comprehending or acting on communications appropriately. It may be helpful for counsel to repeat advice on multiple occasions, and to reduce communications to writing more frequently than in the usual attorney-client relationship, so that the client can use the writings as a reference. Counsel is also well-advised to have the client repeat back to counsel information that has been communicated to be sure that the client has the correct information and interpretation.

In particular, special care is required when counsel has a concern about the possible effect on the client under a disability of disclosures to the client related to the client’s physical or mental condition (Commentary to Rules 1.4 and 1.14), or to other matters that may necessarily be upsetting to the client. It may be appropriate for counsel to schedule such disclosures under conditions that may minimize client discomfort, or to arrange for the availability of resources that may be helpful to the client, such as support of a physician or other counselor, who is already familiar with the client’s situation. Ultimately, however, the communication must be completed, unless in a rare case, the client’s physician advises that communication of particular information would be detrimental to the client’s physical or mental health (Commentary to Rule 1.4). In such cases, the attorney will have to consider whether and under what such circumstances confirmatory medical opinions should be obtained.

Relationships with Clients Having Variable or Intermediate Degrees of Competence

Fine distinctions must be drawn as to those matters on which the client potentially lacks the capacity to make legally binding decisions, and those on which the client may function independently. The client may function adequately as to certain routine matters, but lack capacity to handle major transactions The degree of disability may also vary depending on circumstances such as the time of day, other intervening distractions, use of or failure to use medication, and the like.

If the client is already a Ward under a guardianship, the terms of the guardianship, whether general or limited, will control, but even when a guardian is serving, the goal is to afford maximum self management to the Ward, and to restore the Ward to full self-management as soon as possible. (See: Companion article on the requirements under EPIC relating to a Ward’s self-management and the duty to consult with the Ward before making any major decisions on behalf of the Ward, and the Commentary to Rule 1.14.) If the client does not have a guardian, the attorney may in some circumstances be acting in the manner of a de facto guardian (Commentary to Rule 1.14).

If the client already has a guardian, the attorney should deal with the guardian as to major decisions on behalf of the client, but this does not diminish the responsibility of the attorney to maintain communication with (Rule 1.4 and Commentary to Rule 1.14), and to represent the interests of, the client wholeheartedly (Rule 1.3). In particular, if the attorney has concerns that the guardian is not representing the interests of the client, the attorney should represent the client vigorously in those matters, even to the extent of preventing or rectifying the guardian’s conduct (Rule 1.2(c) and the Commentary to Rule 1.14).

Filing by Counsel of a Petition for Guardianship

Sometimes counsel may consider it necessary to file a petition for appointment of a guardian for a client. In that situation, the attorney may only do so if the attorney reasonably believes the client cannot act in the client’s own interest (Rule 1.14(b) and Commentary to that Rule). The situation can be especially difficult for the client and is most contentious when the client has the capacity to perform some acts independently. The fact of filing a petition may adversely affect the client’s interests in unrelated matters, and can also result in a breach of confidentiality as to matters that have come to the attention of counsel in the course of representation. It may be necessary to bring the petition ex parte and to seek a protective order to limit disclosure of confidential information, so that irreparable harm to the client’s interests may be avoided or at least minimized (Commentary to Rule 1.14).

Conflicts on Counsel Representing Multiple Family Members

A variety of ethical concerns may arise where counsel represents multiple family members.

Confidentiality

Particular confidentiality concerns are raised when an attorney has confidential information about multiple family members. The general rule is that absent a client’s consent, confidential matters cannot be disclosed to or used for the benefit of third parties, which in this case would include family members with conflicting interests (Rule 1.6).

Duties of Diligence, Loyalty, and Wholehearted Representation

The general rule is that the attorney is required to exercise diligence in representation of a client and, absent consent, not to represent clients with conflicting interests. (See: Rule 1.2(b), Commentary to Rule 1.2, Rule 1.3 and Rules 1.7(a)(2) and 1.7(b)(2) and Commentary under Rule 1.7 on loyalty to a client).

It may be simply impossible to fulfill the duty of whole-hearted representation of one client, while at the same time maintaining confidentiality of issues and matters related to another. It also may become necessary for opposing positions to be taken on behalf of the respective clients. When interests conflict, counsel may generally not represent opposing parties, and depending on the nature of the information that counsel has about confidences and other non-public information about each client, counsel may be unable to continue representing any person in the controversy. (See: Commentary to Rule 1.7, Rule 1.9 and Commentary to Rule 1.9.) Although in some circumstances representation may continue with consent of a client, it would be difficult to conclude that consent is wholly informed when the client is under a disability related to cognitive abilities.

Limitations on Representation

In some cases where multiple family members are represented, it may be possible to have a pre-existing agreement with other family members that counsel is free to represent the client in future matters relating to the client’s actual or potential guardianship. (See: Commentary to Rule 1.2 on Scope of Representation and Services Limited in Objective or Means.) Courts may or may not uphold such agreements, however. The prospect for an agreement to be honored is greatest when totally unrelated work is performed for different clients.

For example, if one family member wishes to have representation in the purchase of property, an agreement to limit the representation to that matter usually presents few issues as to representation of other family members. It is not so clear, however, when information gained in one assignment may be relevant in another assignment, and it may also depend on how extensive the representation is of the affected family members and how much counsel may know about issues that unexpectedly become relevant to the guardianship.

For example, counsel who has represented a family member in situations involving substance abuse may find it difficult to represent a Ward or prospective Ward in opposition to that same family member who wishes to be appointed or to continue as guardian. This would especially be the case where the Ward or prospective Ward is objecting to the appointment on the basis of the other family member’s substance abuse. There could be a similar result when a family member guardian’s management of financial affairs is at issue, especially if counsel has represented the guardian in unrelated financial or business matters and has information that may reflect on the guardian’s competence in financial matters or ability to maintain fiduciary duties.

Potential for Role of Counsel as Mediator

In times of disagreement, counsel may consider acting as a mediator, or may be urged by some family members to undertake that role, and attempt to resolve differences among the family members. While it is possible in some circumstances for counsel to act as a mediator (Rule 2.2 and Commentary), it may be inappropriate where one of the parties cannot give informed consent to the mediation, the relationship to some of the family members is more long-standing or pervasive that to others, or it is anticipated that the differences among the parties may continue in the future. Additionally, assuming a role as mediator may impair counsel’s ability to maintain client confidentiality. (See: Commentary to Rule 2.2.)

Declining or Terminating Representation

Counsel may decline or terminate representation of a client with a cognitive disability for the reasons and in the manner specified in Rule 1.16; however, precautions should be undertaken.

If counsel makes the decision to decline or terminate representation, counsel should use special efforts to assist the client or prospective client in understanding that counsel does not intend to represent or continue representation of the client, in assisting the client to find substitute representation and in taking steps to mitigate any damage that may be caused to the client, especially in cases of termination of representation. Depending on the circumstances leading to termination, counsel may consider whether to initiate proceedings for appointment of a guardian for the client. In some cases, the fact of initiating such proceedings may in and of itself require the attorney to terminate representation. (See: Commentary to Rule 1.16.)

If the client is terminating representation, there should be some consideration of whether the client has the legal capacity to take that action, the degree to which the termination may adversely affect the client’s interests, and whether proceedings for guardianship should be initiated, so that a guardian ad litem may be appointed and there may be a court determination as to the client’s capacity. (See generally: Commentary to Rule 1.16.) As noted earlier, such proceedings may be brought on an ex parte basis and with a request for protective orders.

Conclusion

Inability to represent a client with a cognitive disability can be particularly unfortunate when counsel has a long-standing relationship with the family, or at least some family members, and may have significant relevant information about and understanding of the matter at issue. It may be possible to minimize the prospects for disabling conflicts by advance planning, but this cannot be accomplished in all cases.

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