May a California attorney institute conservatorship proceedings for a client who appears to be incompetent but who has not consented to the conservatorship?

Currency note

This opinion was issued in 1989, before the State Bar of California's adoption of the November 1, 2018 revisions to the Rules of Professional Conduct. The opinion interprets former Rules 3-110, 3-310, 3-700, and 5-210, together with Business and Professions Code section 6068(e). The substance is now in current California Rules 1.1 (competence), 1.6 (confidentiality), 1.7 (conflicts), 1.14 (clients with diminished capacity, an ABA Model Rule California has not separately adopted in its 2018 rules), 1.16 (declining or terminating representation), and 3.7 (lawyer as witness). The committee expressly noted that ABA Model Rule 1.14 (which permits a lawyer to seek protective action for an impaired client) had not been adopted in California. Section 6068(e) continues in effect. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the State Bar of California's rules of professional conduct and are persuasive authority. This summary is for research purposes only and is not legal advice. Verify current rules before acting on any specific guidance.

About this page: The plain-English summary and Q&A below were written by Ezel based on the official opinion. The opinion text is reproduced at the bottom; the official source (linked) controls.

View original opinion

Plain-English summary

The committee considered an attorney who, after extended dealings with a client, concluded the client was no longer capable of caring for himself and that other reasonable attorneys would agree. The committee opined on whether the attorney could initiate conservatorship proceedings over the client's express wishes.

On confidentiality, the committee opined that Business and Professions Code section 6068(e) requires the attorney to "maintain inviolate the confidence, and at every peril . . . to preserve the secrets" of the client. The committee opined that what the attorney has observed of the client's behavior, together with information conveyed during the relationship that would embarrass or harm the client if disclosed, qualifies as a "secret" even if not a privileged "communication" under Evidence Code section 952. The committee opined that filing a conservatorship petition would disclose those secrets to the court and to any necessary third parties (including family members called to serve), citing Stockton Theatres v. Palermo, 121 Cal.App.2d 616 (1953). The committee noted that ABA Model Rule 1.14, which permits a lawyer to seek protective action for an impaired client under certain conditions, had not been adopted in California.

On conflicts, the committee opined that former Rule 3-310 raises two obstacles. First, by instituting the conservatorship the attorney necessarily advocates for and protects the interests of third parties (including family members) who would assume the conservator role, creating a representational conflict. Second, an incapacitated client likely cannot give informed consent to the attorney's representation of conflicting interests, so the conflict may not be waivable. The committee opined that Rule 3-310(E) (compensation from one other than the client) also bars the attorney from continuing the client representation if the family directs and pays for the attorney's participation in the conservatorship without the client's informed consent.

On competence, the committee opined that Rule 3-110 defines "ability" as a quality of having sufficient learning and skill and being mentally, emotionally, and physically able to perform legal services. The committee opined that the rule does not compel a finding of incompetence merely because the attorney follows the client's instructions and declines to file a conservatorship; the attorney has performed competently by carrying out the original limited representation.

On withdrawal, the committee opined that Rule 3-700 permits withdrawal where the client's conduct "renders it unreasonably difficult" to carry out the employment effectively. The committee characterized withdrawal as a last resort, given the client's vulnerability, to be sought only after the attorney has done everything possible to assist the client. The committee expressly did not reach any Tarasoff duty-to-warn obligations where a client poses an actual or apparent threat to others.

Common questions

Q: May a California attorney file a conservatorship petition over the client's objection under this opinion?

A: Per the opinion, no. The filing would disclose client secrets in violation of Business and Professions Code section 6068(e) and would create a non-waivable conflict of interest under former Rule 3-310.

Q: What if the attorney genuinely believes a conservatorship is in the client's best interest?

A: Per the opinion, the attorney's belief does not override the duty of confidentiality or cure the conflict. The committee noted that California had not adopted ABA Model Rule 1.14, which permits protective action for an impaired client.

Q: Is the attorney violating the competence rule by declining to file the conservatorship?

A: Per the opinion, no. Rule 3-110 defines competence as having the requisite learning, skill, and faculties; following the client's instructions on the original representation satisfies the rule.

Q: What can the attorney do if the client's incapacity makes the representation unworkable?

A: Per the opinion, Rule 3-700 permits withdrawal where the client's conduct renders it unreasonably difficult to carry out the employment effectively. The committee characterized withdrawal as a last resort.

Q: Did the opinion address situations where the client may be dangerous to others?

A: Per the opinion, no. The committee expressly disclaimed any application of the Tarasoff v. Regents (1976) 17 Cal.3d 425 duty to warn.

Background and rules framework

The opinion interprets former California Rules 3-110 (competence), 3-310 (conflicts), 3-700 (withdrawal), and 5-210 (lawyer as witness), together with Business and Professions Code section 6068(e) (confidentiality). The committee referenced ABA Model Rule 1.14 (clients with diminished capacity) and noted California had not adopted it. The substance is now in current California Rules 1.1, 1.6, 1.7, and 1.16; section 6068(e) continues in effect.

Citations and references

Rules of Professional Conduct (former, in effect at time of opinion):

• Former California Rule 3-110 (competence)
• Former California Rule 3-310 (conflicts)
• Former California Rule 3-700 (withdrawal)
• Former California Rule 5-210 (lawyer as witness)
• ABA Model Rule 1.14 (referenced; not adopted in California at the time)

Statutes:

• Cal. Bus. & Prof. Code section 6068(e), duty of confidentiality
• Cal. Evid. Code section 952, definition of "confidential communication"
• Cal. Prob. Code sections 1801 and 1828.5, conservatorship standards (cited as guidance)

Cases:

• Stockton Theatres v. Palermo, 121 Cal.App.2d 616 (1953), prohibition on using client secrets to client's disadvantage
• Tarasoff v. Regents of Univ. of Cal., 17 Cal.3d 425 (1976), referenced but not applied

Other opinions cited:

• Cal. State Bar Formal Op. 1987-93 (intimate consultation as basis for secrets)
• Cal. State Bar Formal Op. 1988-96 (information beyond privileged communications as secrets)

See also

• CA Ethics Op. 1989-111: Withdrawal Duties When a Client Vanishes
• CA Ethics Op. 1994-134: Attorney of Record Status and Withdrawal
• CA Ethics Op. 1988-096: Confidentiality and Secrets

Source

• Landing page: https://www.calbar.ca.gov/legal-professionals/ethics-compliance-practice-resources/ethics/ethics-opinions
• Source HTML: https://www.calbar.org/ethics/Opinions/1989-112.htm

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Ethics Opinions - FORMAL OPINION NO 1989-112

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.

THE
STATE BAR OF CALIFORNIA

STANDING COMMITTEE ON

PROFESSIONAL RESPONSIBILITY AND CONDUCT
FORMAL OPINION NO 1989-112

ISSUE:

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?

DIGEST:

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.

AUTHORITIES INTERPRETED:

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).

DISCUSSION

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.

1. Duty to Protect Client Secrets

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.

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, this rule has not been adopted in California.

2. Conflicting and Adverse Interests

Rule of Professional Conduct 3-310 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.

3. Attorney Competence

Under Rule of Professional Conduct 3-110, 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.

4. Withdrawal From Employment

Rule of Professional Conduct 3-700 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.

CONCLUSION

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.

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.

1 California Probate Code sections 1801 and 1828.5, while not controlling on the ethical issue presented here, will provide guidance to the attorney in deciding whether a conservatorship would be appropriate under the circumstances.

2 American Bar Association Model Rule 1.14 provides that:

(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.

3 California Rule of Professional Conduct 3-310 provides:

(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.

4 Rule of Professional Conduct 3-110 provides:

(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.

5 Rule of Professional Conduct 3-700 provides:

(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.

6 The Committee wishes to stress that withdrawal under these circumstances should be viewed by the attorney as a last resort. Given his needs and questionable capacity, the client conceivably will be prejudiced by the attorney's withdrawal, which should be sought only if absolutely compelled by the circumstances, after the attorney has done everything he or she possibly can to assist the client.

7 To the extent the client poses an actual or apparent threat to the safety of others, this opinion is not intended to reach the possible application of the "duty to warn" created by the California Supreme Court in Tarasoff v. Regents of University of California (1976) 17 Cal.3d 425.