Editor's Note:
State Bar Ethics Opinions cite the applicable California Rules of Professional Conduct in effect at the time of the writing of the opinion. Please refer to the California Rules of Professional Conduct Cross Reference Chart for a table indicating the corresponding current operative rule. There, you can also link to the text of the current rule.
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May an attorney institute conservatorship proceedings on a client's behalf, without the client's consent, where the attorney has concluded the client is incompetent to act in his best interest?
Although the attorney may feel that it is in the client's best interest to do so, it is unethical for an attorney to institute conservatorship proceedings contrary to the client's wishes, since by doing so the attorney will be divulging the client's secrets and representing either conflicting or adverse interests. However, should the client's conduct interfere with or unduly inhibit the attorney's ability to carry out the purpose for which the attorney was retained, withdrawal may be appropriate.
Rules of Professional Conduct 3-110, 3-310, 3-700 and 5-210 of the State Bar of California. Business and Professions Code section 6068, subdivision (e).
The Committee has been asked to opine on the ethical propriety of an attorney instituting conservatorship proceedings on behalf of a client but against that client's express wishes. For purposes of this discussion, it is assumed that the client's behavior patterns and dealings with his attorney over a significant period of time have convinced the attorney that the client requires a conservator. It is also assumed that other lawyers in the community would have a reasonable basis for concluding the same.
This situation is governed broadly by Business and Professions Code section 6068, subdivision (e), which provides that an attorney has the duty to:
maintain inviolate the confidence, and at every peril to himself [or herself] to preserve the secrets, of his or her client.
What the attorney has seen or heard during the course of the relationship with the client may be a client "secret." (See State Bar Formal Opinion 1987-93 which states ". . . the attorney-client relationship involves not just the casual assistance of a member of the bar, but an intimate process of consultation and planning which culminates in a state of trust and confidence between a client and his attorney.") Here, it is assumed that the attorney has spent considerable time in the client's presence, observing his behavior and coming to the conclusion that he can no longer properly care for himself.1
It is also assumed that information imparted to the attorney by the client during the course of their relationship of confidence, while not necessarily a protected "communication" (see Evidence Code, section 952), would be embarrassing or detrimental to the client if divulged by the attorney to third parties, and as such qualifies as a "secret." (State Bar Formal Opinions 1988-96 and 1987-93.)
By instituting conservatorship proceedings, the attorney will not only be disclosing such client secrets to the court, but also to any necessary third parties (including family members) called upon to act in the conservatorship role. An attorney is absolutely prohibited from divulging the client's secrets gained during the attorney-client relationship, and from acting in any manner whereby the attorney is forced to use such secrets to the client's disadvantage. (Stockton Theatres v. Palermo (1953) 121 Cal.App.2d 616 [264 P.2d 74].) The Committee thus concludes that the attorney may not divulge what the attorney has observed of the client's behavior.
While the American Bar Association has adopted a model rule providing that, under certain circumstances, an attorney may initiate conservatorship proceedings,2 this rule has not been adopted in California.
Rule of Professional Conduct 3-3103 provides that an attorney cannot represent conflicting interests, absent the informed written consent of all parties concerned, and cannot accept employment adverse to a client or former client absent the same consent. This rule creates two stumbling blocks in the situation under consideration. First, the attorney will necessarily be advocating and protecting the interests of those third parties with whom the client is coming into contact on a regular basis (including family members); and second, it is questionable whether the client, assuming he is unable to tend to his needs, can understand sufficiently the complexities of this dilemma to provide informed consent to the attorney's representation of conflicting interests. Thus, the conflict may not be waivable.
Rule 3-310 further contemplates that if the attorney has had a "relationship" with another party (such as a member of the client's family) who is interested in the representation, the attorney cannot continue such representation without all affected clients' informed written consent. In addition, under paragraph (E), the attorney here is barred from continuing to represent the client if she accepts compensation from the client's family at whose direction she participates in the conservatorship, absent the client's informed consent.
Under Rule of Professional Conduct 3-1104, an attorney must act "competently," which means applying the learning, skill and diligence necessary to discharge duties connected with the employment or representation. Here, an argument can be made that there is a presumption of incompetence if a conservator is not appointed since the attorney is placing (or leaving) the client in a vulnerable position where he is helpless to care for himself properly, and his condition will likely worsen with time.
The attorney has represented the client "competently" if he or she diligently applies the learning and skill necessary to perform his or her duties arising from employment or representation. Rule 3- 110 defines "ability" as having the requisite level of learning and skill and being mentally, emotionally and physically able to perform legal services. Accordingly, the rule does not compel the conclusion here that the attorney has acted incompetently by failing to institute conservatorship proceedings, since the attorney has simply followed his or her client's instructions. Rather, the rule suggests that competency is synonymous with proficiency and adequate preparation. The attorney here has performed competently by carrying out the limited representation for which he or she was originally retained.
Rule of Professional Conduct 3-7005 subsections (B) and (C) provide for, respectively, mandatory and permissive withdrawal. While there is no explicit provision in rule 3-700 which either permits or requires a member to withdraw from employment based on initiating a conservatorship, under subsection (C)(1), if the client is engaging in conduct which "renders it unreasonably difficult" for the attorney to carry out the employment effectively, and that same conduct leads the attorney to the conclusion that the client needs a conservator, withdrawal may be permitted under the circumstances.6
It is the opinion of the Committee that instituting a conservatorship on these facts is barred by Business and Professions Code section 6068, subdivision (e), and furthermore creates a conflict that may not be waivable. The attorney must maintain the client's confidence and trust, even though the attorney will be torn between a duty to pursue the client's desires (including protecting his secrets) and a duty to represent his interests, which may best be served by instituting a conservatorship. While the attorney will not fall below the level of competence required by simply continuing the representation for which he or she was retained and avoiding filing a conservatorship for the client, withdrawal may be appropriate or even mandatory if the client's conduct impedes the attorney's ability to effectively carry out the duties for which he or she was retained.7
This opinion is issued by the Standing Committee on Professional Responsibility and Conduct of the State Bar of California. It is advisory only. It is not binding upon the courts, the State Bar of California, its board of governors, any persons or tribunals charged with regulatory responsibilities, or any member of the State Bar.
(a) When a client's ability to make adequately considered decisions in connection with the representation is impaired, whether because of minority, mental disability or for some other reasons, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client.
(b) A lawyer may seek the appointment of a guardian or take protective action with respect to a client, only when the lawyer reasonably believes that the client cannot adequately act in the client's own interest.
(A) If a member has or had a relationship with another party interested in the representation, or has an interest in its subject matter, the member shall not accept or continue such representation without all affected clients' informed written consent.
(B) A member shall not concurrently represent clients whose interests conflict, except with their informed written consent.
(C) A member who represents two or more clients shall not enter into an aggregate settlement of the claims of or against the clients, except with their informed written consent.
(D) A member shall not accept employment adverse to a client or former client where, by reason of the representation of the client or former client, the member has obtained confidential information material to the employment except with the informed written consent of the client or former client.
(E) A member shall not accept compensation for representing a client from one other than the client unless:
(1) There is no interference with the member's independence of professional judgment or with the client-lawyer relationship; and
(2) Information relating to representation of a client is protected as required by Business and Professions Code section 6068, subdivision (e); and
(3) The client consents after disclosure, provided that no disclosure is required if:
(a) such nondisclosure is otherwise authorized by law, or
(b) the member is rendering legal services on behalf of any public agency which provides legal services to other public agencies or members of the public.
(F) As used in this rule "informed" means full disclosure to the client of the circumstances and advice to the client of any actual or reasonably foreseeable adverse effects of those circumstances upon the representation.
(A) A member shall not intentionally, or with reckless disregard, or repeatedly fail to perform legal services competently.
(B) To perform legal services competently means diligently to apply the learning and skill necessary to perform the member's duties arising from employment or representation. If the member does not have sufficient learning and skills when the employment or representation is undertaken, or during the course of the employment or representation, the member may nonetheless preform such duties competently by associating or, where appropriate, professionally consulting another member reasonably believed to be competent, or by acquiring sufficient learning and skill before performance is required, if the member has sufficient time, resources, and ability to do so.
(C) As used in this rule, the term "ability" means a quality or state of having sufficient learning and skill and being mentally, emotionally, and physically able to perform legal services.
(B) Mandatory Withdrawal
A member representing a client before a tribunal shall withdraw from employment with the permission of the tribunal, if required by its rules, and a member representing a client in other matters shall withdraw from employment, if:
(1) The member knows or should know that the client is bringing an action, conducting a defense, asserting a position in litigation, or taking an appeal, without probable cause and for the purpose of harassing or maliciously injuring any person; or
(2) the member knows or should know that continued employment will result in violation of these rules or of the State Bar Act; or
(3) The member's mental or physical condition renders it unreasonably difficult to carry out the employment effectively.
(C) Permissive Withdrawal
If rule 3-700(B) is not applicable, a member may not request permission to withdraw in matters pending before a tribunal, and may not withdraw in other matters, unless such request or such withdrawal is because:
(1) The client
(a) insists upon presenting a claim or defense that is not warranted under existing law and cannot be supported by good faith argument for an extension, modification, or reversal of existing law, or
(b) seeks to pursue an illegal course of conduct, or
(c) insists that a member pursue a course of conduct that is illegal or that is prohibited under these rules or the State Bar Act, or
(d) by other conduct renders it unreasonably difficult for the member to carry out the employment effectively, or
(e) insists, in a matter not pending before a tribunal, that the member engage in conduct that is contrary to the judgment and advice of the member but not prohibited under these rules or the State Bar Act, or
(f) breaches an agreement or obligation to the member as to expenses or fees.
(2) The continued employment is likely to result in a violation of these rules or of the State Bar Act; or
(3) The inability to work with co-counsel indicates that the best interests of the client likely will be served by withdrawal; or
(4) The member's mental or physical condition renders it difficult for the member to carry out the employment effectively; or
(5) The client knowingly and freely assents to termination of the employment; or
(6) The member believes in good faith, in a proceeding pending before a tribunal, that the tribunal will find the existence of other good cause for withdrawal.
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