My elderly client, for whom I serve as trustee, now accuses me of misconduct and I doubt her capacity. Can I resign as trustee or return the trust assets to her?

Plain-English summary

The inquiring attorney had represented an elderly client for many years and had prepared a trust agreement for the client's benefit, under which the attorney was named a trustee. Over time the client began accusing the attorney of misdeeds regarding the client's finances, charges the attorney states are unfounded, and the attorney suggests the client's mental capacity is in question. Disturbed by the accusations, the attorney offered to resign as trustee and arrange for a successor, but the client would not consent. The attorney asked whether the attorney may resign as trustee or, upon revocation of the trust, assign all assets to the client.

The panel stated that the priority in this situation is to protect the interest of the client. It referred the attorney to Rule 1.14(b), under which a lawyer may seek the appointment of a guardian only when the lawyer reasonably believes the client cannot adequately act in the client's own interest; where no legal representative has been appointed, the lawyer should see to such an appointment where it would serve the client's best interests. The panel also pointed to Rule 1.16(b), under which a lawyer may withdraw from representing a client if withdrawal can be accomplished without material adverse effect on the interest of the client.

The panel advised that if the attorney believes it appropriate or necessary, the attorney should petition the court to appoint a guardian for the client pursuant to Rule 1.14. The guardian would then be able to conduct the appropriate accounting of the finances while protecting the best interest of the client.

In practice

Under this opinion, an attorney who serves as trustee for a long-standing elderly client, faces accusations of financial misconduct, and questions the client's capacity is directed first to the client's protection. The opinion frames the available steps as seeking a guardian under Rule 1.14 when the lawyer reasonably believes the client cannot adequately act for herself, and withdrawal under Rule 1.16(b) when it can be done without material adverse effect; a court-appointed guardian can then oversee the accounting.

Common questions

Q: Can I simply resign as trustee when my client refuses to consent to a successor?

A: The opinion does not give a flat yes or no; it directs the attorney to Rule 1.16(b), under which withdrawal is available if it can be accomplished without material adverse effect on the client's interest, and frames the guardianship route as the way to protect the client.

Q: My client accuses me of mishandling finances and I doubt her capacity. What does the panel say I should prioritize?

A: Per the opinion, the priority is to protect the interest of the client.

Q: How can the disputed accounting be resolved while protecting the client?

A: Per the opinion, if the attorney believes it appropriate the attorney should petition the court to appoint a guardian under Rule 1.14, and the guardian would then be able to conduct the appropriate accounting while protecting the client's best interest.

Background and rules framework

The opinion applies Rhode Island Rule 1.14 (client under a disability), corresponding to Model Rule 1.14, and Rule 1.16 (declining or terminating representation), corresponding to Model Rule 1.16. The panel read Rule 1.14(b) as permitting a lawyer to seek a guardian only when the lawyer reasonably believes the client cannot adequately act in the client's own interest, and read Rule 1.16(b) as permitting withdrawal where it can be accomplished without material adverse effect on the client.

Citations and references

Rules of Professional Conduct:

• MR 1.14 (client under a disability), MR 1.16 (declining or terminating representation)
• RI RPC 1.14(b); RI RPC 1.16(b); comments to Rule 1.14

Statutes:

• None cited.

Cases:

• None cited.

Other opinions cited:

• None cited.

See also

• RI EAP Op. 92-41: Town Solicitor Defending the Town in a Council Member's Tax Suit (No Conflict)
• RI EAP Op. 92-39: Rule 1.11 Bars a Former Government Investigator From Adverse Representation

Currency note

This opinion was issued in 1992 (Opinion 92-40), after the Rhode Island Supreme Court adopted the Model Rules of Professional Conduct effective November 15, 1988, and it applies Rules 1.14 and 1.16 as originally adopted. The Rhode Island Supreme Court later revised the Rules of Professional Conduct in 2007 as part of the nationwide Ethics 2000 process, which amended Rule 1.14 (renamed "Client with Diminished Capacity") and Rule 1.16. 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 mentioned here.

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%2092-40.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.

ETHICS ADVISORY PANEL
Opinion #92-40, Request #260
Issued July 23, 1992

An attorney seeks Panel advice based on the following situation. An attorney has represented an elderly client for numerous years. The attorney prepared a trust agreement for the benefit of the client and was named a trustee. After a period of time, the client began to accuse the attorney of misdeeds regarding the client's finances. The attorney states that these charges are unfounded. The attorney suggests that the client's mental capacity is in question.

Disturbed by the accusations, the attorney offered to resign as trustee and to arrange for the appointment of a successor but the client would not consent to this arrangement. The attorney asks whether the attorney may resign as trustee or upon revocation of the trust assign all assets to the client.

The Panel believes that the priority in this situation is to protect the interest of the client. The Panel refers the attorney to Rule 1.14(b) where it states that "a lawyer may seek the appointment of a guardian . . . only when the lawyer reasonably believes that the client cannot adequately act in the client's own interest." If a legal representative has not been appointed, the lawyer should see to such an appointment where it would serve the client's best interests. See Comments to Rule 1.14. Moreover, Rule 1.16(b) states that "a lawyer may withdraw from representing a client if withdrawal can be accomplished without material adverse effect on the interest of the client."

If the attorney believes it appropriate or necessary the attorney should petition the court to appoint a guardian for the client pursuant to Rule 1.14. The guardian would then be able to conduct the appropriate accounting of the finances while protecting the best interest of the client.