I serve as guardian for one individual. That person's mother, who has objected to some of my spending decisions in the past, now needs her own guardian, and her daughter wants me to represent her as guardian for her mother, or serve as guardian myself if the daughter can't. Is that a conflict?
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This page answers the general question as of 2004. Ezel answers yours: whether it's allowed on your facts, under the current rules of professional conduct in your state, with citations.
Plain-English summary
The inquiring attorney served as guardian for an individual, accounting for all financial transactions to the probate court and to the individual's mother and father as heirs-at-law. The mother had twice objected to amounts spent on the individual's personal needs, and the probate court had considered and overruled both objections. The mother, now elderly and suffering from dementia, required her own guardian. Her daughter (the individual's sister) asked the attorney to represent her in a petition for guardianship over the mother, and, because the daughter lived in Connecticut, also asked the attorney to serve as resident agent and, if necessary, guardian of the mother's estate if the daughter could not serve.
The panel found no conflict of interest in the attorney simultaneously serving as guardian for the individual and as attorney for (or potential guardian of) the mother. Despite the mother's prior objections to the attorney's spending decisions for the individual's estate, the panel did not believe the attorney's responsibilities to the individual would materially limit the attorney's responsibilities as counsel for the daughter-as-guardian, or as guardian of the mother if needed. The panel applied Rule 1.7(b)'s bar on representation materially limited by responsibilities to another client, a third person, or the lawyer's own interests, unless the lawyer reasonably believes the representation will not be adversely affected.
In practice
The opinion holds that, under the Rhode Island rules as they stood at the time of the opinion, a lawyer's existing role as guardian for one family member does not itself create a Rule 1.7(b) material-limitation conflict against representing, or serving as, guardian for a related family member, even where that relative had previously objected (unsuccessfully) to the lawyer's decisions in the first guardianship.
Common questions
Q: I'm already serving as guardian for one person. Can I also represent, or serve as, guardian for that person's parent or sibling?
A: According to this opinion, yes, generally. The panel found no Rule 1.7(b) conflict from serving in both guardian-related roles for related family members.
Q: Does it matter that the second guardian's family member previously objected to my decisions in the first guardianship?
A: Not decisively, per this opinion. The panel considered the mother's prior unsuccessful objections and still found no material limitation on the attorney's ability to serve or represent a guardian for her.
Q: What's the legal test the panel applied?
A: Rule 1.7(b): whether the representation would be materially limited by the lawyer's responsibilities to another client, a third person, or the lawyer's own interests, unless the lawyer reasonably believes the representation will not be adversely affected.
Background and rules framework
The opinion applies Rule 1.7(b) (Conflict of Interest: General Rule), the Model Rule counterpart of the same number, which the opinion paraphrases as barring representation materially limited by the lawyer's responsibilities to another client, a third person, or the lawyer's own interests, unless the lawyer reasonably believes the representation will not be adversely affected.
Citations and references
Rules of Professional Conduct:
- MR 1.7(b) (Conflict of Interest: General Rule) / RI Rule 1.7(b)
See also
Source
- Landing page: https://www.courts.ri.gov/attorney-resources/Pages/Ethics-Advisory-Panel-default.aspx
- Original PDF: https://www.courts.ri.gov/Opinions/EAP%202004-02.pdf
Original opinion text
Full opinion text unavailable from the official source; see the linked source above for the complete text.
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