Can a lawyer who represented an incapacitated client in a guardianship appointment later represent both that client and the guardian in a proceeding to end the guardianship?

Plain-English summary

A lawyer previously represented an incapacitated client when a guardian (one of the client's adult children) was appointed with the client's consent. Later, the client, the guardian, and the other adult children all agreed the guardianship should end, because the client now lives independently and the guardian is moving across the country. The client and guardian ask the lawyer to represent them both in the discharge proceeding, and the opinion assumes the court approves the dual representation.

The opinion analyzes the proposed dual representation under Rule 1.7. It finds the representation involves "differing interests" under Rule 1.7(a)(1): a person previously found incapacitated presumably needs a guardian until proven otherwise, while the guardian wishes to be relieved of the role, a tension heightened by the guardian's plan to move. That conflict must therefore be tested for consentability under Rule 1.7(b)(1)-(3). On these facts, the opinion concludes the parties are currently aligned and any serious clash is only a future possibility, so the lawyer may reasonably believe he can provide competent and diligent representation to both, especially because the matter is non-adversarial and under court supervision. Because the representation is not prohibited by law and does not involve asserting one client's claim against the other, Rule 1.7(b)(2) and (b)(3) are satisfied, making the conflict consentable.

Consentability alone is not enough; Rule 1.7(b)(4) requires actual informed consent, confirmed in writing, from each client. The opinion stresses the lawyer must explain the material risks, including that a later material disagreement could prevent continued joint representation, after which both would need new counsel unless one (then a former client) consents in writing to the lawyer continuing with the other. Obtaining the client's consent requires special care because the client is presently under guardianship. The opinion draws on Rule 1.14 (client with diminished capacity), N.Y. State 746 (2001), and the Mental Hygiene Law to conclude the client may consent despite the incapacity designation, but the lawyer must carefully assess the client's capacity to understand the conflict and make a reasoned decision; if the client cannot give informed consent, the lawyer cannot undertake the dual representation. The opinion notes the court's supervision of the discharge substantially mitigates concerns about obtaining the incapacitated client's consent.

In practice

Under this opinion, joint representation of a client and a guardian in a guardianship-termination proceeding is a Rule 1.7(a)(1) differing-interests conflict, but a consentable one where the parties are aligned and the matter is court-supervised. The opinion holds that the lawyer must obtain each client's informed consent confirmed in writing, explain the risk that a future disagreement could end the joint representation, and carefully assess whether the incapacitated client has the capacity to give informed consent; if not, the lawyer cannot take on both clients.

Common questions

Q: Is representing both the incapacitated client and the guardian a conflict?

A: Yes. The opinion concludes the dual representation involves differing interests under Rule 1.7(a)(1), because the client presumptively needs a guardian while the guardian seeks to be relieved, so it must be analyzed for consentability.

Q: Can the lawyer still take on both clients?

A: Yes, if the conflict is consentable. The opinion concludes that where the parties are aligned and the matter is non-adversarial and court-supervised, the lawyer may reasonably believe he can represent both competently, satisfying Rule 1.7(b)(1)-(3), and may proceed with informed written consent.

Q: Can an incapacitated client consent to the dual representation?

A: The opinion concludes the client may consent despite the incapacity designation, relying on Rule 1.14, N.Y. State 746 (2001), and the Mental Hygiene Law, but the lawyer must carefully assess the client's capacity to understand the conflict and decide; if the client cannot, the lawyer cannot undertake the representation.

Q: What if the clients later disagree?

A: The opinion states the lawyer must disclose this risk upfront: a material disagreement could prevent continued joint representation, after which both clients would need new counsel unless one (then a former client) consents in writing to the lawyer continuing with the other.

Background and rules framework

The opinion interprets New York Rule 1.7 (Model Rule 1.7, concurrent conflicts), applying the consentability test in Rule 1.7(b)(1)-(4) and the definition of "informed consent" in Rule 1.0(j). It also relies on Rule 1.14 (Model Rule 1.14, client with diminished capacity) for the incapacitated client's ability to consent, supported by the Mental Hygiene Law's directive to preserve an incapacitated person's autonomy.

Citations and references

Rules of Professional Conduct:

• MR 1.7 (conflicts of interest: current clients); MR 1.14 (client with diminished capacity)
• NY Rules 1.7(a)(1), 1.7(b)(1)-(4); 1.0(j) ("informed consent"); 1.14

Statutes:

• N.Y. Mental Hygiene Law 81.20, 81.29 (preserving an incapacitated person's autonomy and retained rights)

Other opinions cited:

• N.Y. State 746 (2001): representing a client with impaired but functioning decision-making capacity

See also

• NY State Bar Op. 868: Concurrent representation of corporation and sole owner
• NY State Bar Op. 871: Conflicts of interest with former clients
• NY State Bar Op. 847: Lawyer serving as a MERS officer while representing the note owner

Source

• Landing page: https://nysba.org/ethics-opinion-836/