Can a lawyer who represented petitioners in an incompetency proceeding later serve as committee for the person found incompetent if everyone consents?

Plain-English summary

The committee considered whether an attorney who had appeared at an inquest on behalf of petitioners seeking to have an individual declared incompetent could later accept appointment as committee for that individual, where both the petitioners and those who had resisted the inquest requested his appointment. It answered yes, subject to the conditions of DR 5-105.

The committee explained that under DR 5-105 two circumstances must combine for a lawyer to represent multiple interests: informed consent obtained after full disclosure of the facts, and a determination that the lawyer can adequately represent all interests involved. Mere consent does not by itself exonerate the lawyer; citing Wise, Legal Ethics (2d ed.) at 258, and ABA Informal Opinion C-753 (1964), the committee noted the lawyer must search his own conscience for latent impropriety even after consent, and must decline if the conflicting interests are so adverse as to become hostile or antagonistic. Under EC 5-15, doubts are resolved against the representation.

Applying that framework, the committee found the lawyer had obtained the consent of all interested parties (indeed his appointment was under consideration only at their request), and assumed the consent followed full disclosure. The remaining question was whether he could adequately represent all interests. As committee he would seek to preserve and protect the ward's estate, which was in the interest of all concerned, so there appeared to be nothing antagonistic or hostile in the representation. The committee concluded that, unless some impropriety not apparent from the inquiry was known to the attorney, he could properly undertake the position, and that he would be expected to withdraw if facts later came to his attention making fair representation of all interests impossible.

Currency note

This opinion was issued in 1974 under Kentucky's former Code of Professional Responsibility (in effect 1971 to 1990), before the Kentucky Bar Association's 1990 adoption of the Rules of Professional Conduct (SCR 3.130) and the substantial 2009 revisions to those rules. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against the current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Can the lawyer who pursued the incompetency finding serve as the committee for the ward?

A: Yes, if the conditions of DR 5-105(C) are met: informed consent of all interested parties after full disclosure, and the lawyer's ability to adequately represent every interest.

Q: Is consent alone enough?

A: No. The committee held that mere consent does not exonerate the lawyer; he must also be able to represent all interests adequately and must search his conscience for latent impropriety, resolving doubts against the representation under EC 5-15.

Q: Why were the interests not in conflict here?

A: Because as committee the lawyer would seek to preserve and protect the ward's estate, which served the interest of all concerned, so the committee found nothing hostile or antagonistic in the role.

Background and rules framework

The opinion applied DR 5-105 of the former Code of Professional Responsibility (declining or continuing multiple employment, with the consent exception in DR 5-105(C)) and EC 5-15 (resolving doubts against multiple representation). The modern analog is Model Rule 1.7 (concurrent conflicts of interest, including the informed-consent conditions of Rule 1.7(b)).

Citations and references

Rules of Professional Conduct:

• DR 5-105 (refusing or continuing multiple employment); EC 5-15; modern analog Model Rule 1.7

Other opinions cited:

• ABA Informal Opinion C-753 (1964), representation must be declined if conflicting interests become hostile or antagonistic

Other authorities:

• Wise, Legal Ethics (2d ed.), page 258

See also

• KBA Ethics Op. E-129: County and City Attorney
• KBA Ethics Op. E-102: County Attorney's Partner Defending Criminal Cases

Source

• Landing page: https://kybar.org/For-Members/Rules-Ethics-Information/Ethics-Opinions
• Original PDF: https://kybar.org/Portals/0/Admin/Ethics%20Opinions/KBA_E-099.pdf

Original opinion text

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

KENTUCKY BAR ASSOCIATION
Ethics Opinion KBA E-99
Issued: September 1974

This opinion was decided under the Code of Professional Responsibility, which was in effect from 1971 to 1990. Lawyers should consult the current version of the Rules of Professional Conduct and Comments, SCR 3.130 (available at http://www.kybar.org), before relying on this opinion.

Question:

May an attorney appearing on behalf of clients to have an individual declared incompetent later accept an appointment as committee for that individual where requested to serve by both those initiating the inquest and those who oppose it?

Answer:

Yes.

References:

DR 5-105; EC 5-15

OPINION

An attorney previously appeared at an inquest on behalf of petitioners to have an individual declared incompetent. At the conclusion of the hearing, the individual was found incompetent, and both the petitioners and those who resisted the inquest have requested the attorney's appointment as committee. He now inquires whether there is a conflict in these facts which would prevent acceptance of the appointment.

Former Canon 6 forbade representation of conflicting interest except by express consent of all concerned upon full disclosure of the facts. The operative rule is now found in DR 5-105. It provides:

(A) A lawyer shall decline proffered employment if the exercise of his independent professional judgment in behalf of a client will or is likely to be adversely affected by the acceptance of the proffered employment, except to the extent permitted under DR 5-105(C).

(B) A lawyer shall not continue multiple employment if the exercise of his independent professional judgment in behalf of a client will be or is likely to be adversely affected by his representation of another client, except to the extent permitted under DR 5-105(C).

(C) In the situations covered by DR 5-105(A) and (B), a lawyer may represent multiple clients if it is obvious that he can adequately represent the interest of each and if each consents to the representation after full disclosure of the possible effect of such representation on the exercise of his independent professional judgment on behalf of each.

(D) If a lawyer is required to decline employment or to withdraw from employment under DR 5-105, no partner or associate of his or his firm may accept or continue such employment.

From this it will be observed that two circumstances must combine for an attorney to represent multiple interests. An informed consent must be obtained after full disclosure of the facts, and it must appear that the attorney can adequately represent all interests involved. Mere consent of both clients does not of itself accord complete exoneration, and as noted by Wise, Legal Ethics, Second Edition, page 258, an attorney must search his own conscience to discover any latent impropriety even after consent is obtained. It was further noted in ABA Informal Opinion C-753 (dated March 31, 1964) that if the conflicting interests are so adverse as to become hostile or antagonistic, the representation must be declined. If an attorney has any doubts, under EC 5-15 he must resolve all doubts against the representation.

Here, it is clear that the attorney in question has obtained the consent of all who have an interest in his appointment. In fact, it is only at their request that his appointment is under consideration. From all that appears, it must be assumed that the consent to this appointment was the result of a full disclosure of all material facts. The question thus becomes whether the attorney can adequately represent all interests involved. As committee, he would presumably have a desire to preserve and protect his ward's estate. Such protection would be in the interests of all concerned. For this reason there would appear to be nothing antagonistic or hostile in his representation as committee for the incompetent. Accordingly, the Ethics Committee has concluded that unless there is some impropriety known to the attorney that is not apparent from his inquiry, he may properly undertake the position in question. In the event any facts should later come to the attorney's attention that might make impossible fair representation of all interests involved, the attorney would of course be expected to withdraw from his position.

Note to Reader

This ethics opinion has been formally adopted by the Board of Governors of the Kentucky Bar Association under the provisions of Kentucky Supreme Court Rule 3.530 (or its predecessor rule). The Rule provides that formal opinions are advisory only.