When an estate-planning client has become incapacitated and has a conservator, to whom may the lawyer release the client's file after being discharged?

Plain-English summary

A lawyer had an estate-planning client, Mrs. Smith, who became incapacitated; the probate court appointed her daughter as conservator and retained jurisdiction. Both the client and the conservator (each now out of state) asked the lawyer for the legal file. The lawyer had suggested the conservator obtain a court order to turn over the file, or that new counsel be secured, but neither responded. The question was whether the lawyer may turn over the file to either of them.

The committee assumed the client had discharged the lawyer. Under Rule 1.16(a)(3), a lawyer must withdraw when discharged, and under Rule 1.16(d), as the committee held in Opinion 92-37, the lawyer should deliver the file to the client within a reasonable time so as not to prejudice the client. But the comment to Rule 1.16(d) notes that a mentally incompetent client may lack capacity to discharge the lawyer and that discharge may be seriously adverse to the client's interests, directing the lawyer to special efforts and, in an extreme case, conservatorship proceedings under Rule 1.14. Rule 1.14(a) requires the lawyer to maintain, as far as reasonably possible, a normal client-lawyer relationship with an impaired client, and Rule 1.14(b) permits seeking a guardian or protective action only when the lawyer reasonably believes the client cannot adequately act in her own interest.

Applying this, the committee noted the client (Mrs. Smith), not the conservator, is the client; a conservator generally controls property but not personal decisions. The lawyer must make a reasonable determination whether the client can adequately act on the termination. Had a guardian been appointed, the lawyer would ordinarily look to that representative after trying to communicate with the client. With only a conservator, and only if the lawyer reasonably believes the client cannot adequately act, the lawyer may seek a guardian or other protective action, and because the probate court retained jurisdiction, may do so there. Any such action must be on the lawyer's own authority under Rule 1.14, not on behalf of a third party, which Rule 1.7(a) would prohibit.

In practice

Under this opinion, on the facts presented, a discharged lawyer cannot simply hand the file to whoever asks; the lawyer must run the Rule 1.14 capacity analysis because the client is impaired. The committee tied the duty to return the file to Rule 1.16(d) and Opinion 92-37, made the capacity judgment the gating question under Rule 1.14, distinguished the conservator's limited (property) authority from a guardian's, and confirmed that seeking protective action must be on the lawyer's own authority under Rule 1.14, not on a third party's behalf (Rule 1.7(a)).

Common questions

Q: My incapacitated client and her conservator both want the file. Can I just send it?

A: Not automatically. The committee holds the client, not the conservator, is the client, so you must first assess under Rule 1.14 whether the client can adequately act on the termination before returning the file under Rule 1.16(d).

Q: Does the conservator stand in for the client?

A: Not for personal decisions. The committee notes a conservator generally controls property and may prosecute or defend actions for the estate, but does not have authority to make the client's personal decisions.

Q: What if the client cannot adequately act and there is no guardian?

A: The committee says you may seek the appointment of a guardian or other protective action under Rule 1.14(b), and because the probate court retained jurisdiction, you may seek it there, acting on your own authority and not on behalf of a third party.

Background and rules framework

The opinion applies South Carolina's versions of Model Rule 1.16 (declining or terminating representation, including 1.16(a)(3) and 1.16(d)), Model Rule 1.14 (client with diminished capacity), and Model Rule 1.7 (conflicts; 1.7(a)), at SCACR 407. It relies on the committee's Opinion 92-37 on returning the file after termination and on the comments to Rules 1.14 and 1.16.

Citations and references

Rules of Professional Conduct:

• MR 1.16 / SC Rule 1.16(a)(3), (d) (mandatory withdrawal on discharge; return of the file)
• MR 1.14 / SC Rule 1.14(a), (b) (client with diminished capacity; protective action)
• MR 1.7 / SC Rule 1.7(a) (no representation of a third party's interests in seeking protective action)

Cases:

• Kutnick v. Fischer, 2004-Ohio-5378 (Ohio Ct. App.), client's unsuccessful suit against a lawyer who sought a competency determination and guardian under Rule 1.14(b)

Other opinions cited:

• SC Ethics Advisory Opinion 92-37 (delivery of the file to the client after termination under Rule 1.16(d))

See also

• SC Bar Ethics Op. 05-06: Criminal defense lawyer who becomes a necessary witness
• SC Bar Ethics Op. 05-09: Confidentiality of a deceased client's will

Source

• Landing page: https://www.scbar.org/for-lawyers/quicklinks/legal-resources/ethics-advisory-opinions/ethics-advisory-opinion-05-11/

Original opinion text

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

UPON THE REQUEST OF A MEMBER OF THE SOUTH CAROLINA BAR, THE ETHICS ADVISORY COMMITTEE HAS RENDERED THIS OPINION ON THE ETHICAL PROPRIETY OF THE INQUIRER’S CONTEMPLATED CONDUCT. THIS COMMITTEE HAS NO DISCIPLINARY AUTHORITY. LAWYER DISCIPLINE IS ADMINISTERED SOLELY BY THE SOUTH CAROLINA SUPREME COURT THROUGH ITS COMMISSION ON LAWYER CONDUCT.

Ethics Advisory Opinion 05-11

RULES 1.7, 1.14 and 1.16

Facts
Attorney has an estate planning client, Mrs. Smith. Due to Mrs. Smith’s incapacity, the probate court has appointed her daughter, Mrs. Jones, as conservator. Mrs. Smith has left South Carolina. Mrs. Jones lives outside South Carolina. The court has retained jurisdiction. Attorney has received requests from Mrs. Smith and Mrs. Jones requesting the legal file. Attorney has suggested to Mrs. Jones that she request an order from the court which would order the attorney to turn over the file or that new counsel be secured to represent Mrs. Smith so that the file can be turned over to a new lawyer. Neither Mrs. Smith or Mrs. Jones has responded to any of those suggestions.

Question
May Attorney turn over the legal file to either Mrs. Smith or Mrs. Jones?

Summary
If an attorney reasonably believes that the client can adequately act in her interest, the attorney should withdraw from representation and return the file to the client within a reasonable time so as not to prejudice the client. If a guardian has been appointed for the client, the attorney should consult with the guardian, after attempting to communicate with client concerning the termination. If a guardian has not been appointed for client, and attorney reasonably believes that the client cannot adequately act in their own interest concerning attorney’s termination, the attorney may seek the appointment of a guardian or take other protective action.

Opinion
While not clear from the facts presented, we assume that the client has discharged attorney. Under Rule 1.16(a)(3) the lawyer shall withdraw from representation when discharged by the Client. In Ethics Advisory Opinion 92-37 we advised that, under Rule 1.16(d) following termination of representation, the lawyer upon request should deliver the file to the client within a reasonable time so as not to prejudice the interests of the client and advised the manner of return. However, the Official Comments to Rule 1.16(d) provide as follows: “ If the client is mentally incompetent, the client may lack the legal capacity to discharge the lawyer, and in any event the discharge may be seriously adverse to the client’s interests. The lawyer should make special effort to help the client consider the consequences and, in an extreme case, may initiate proceedings for a conservatorship or similar protection for the client. See Rule 1.14.”

Rule 1.14 includes the following provisions.
“(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 reason, 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 other 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.”

Rule 1.14(a) requires that the lawyer, representing a client with impaired ability, shall to the extent reasonably possible maintain a normal client-lawyer relationship with the client. Under Rule 1.14(b) the lawyer may seek the appointment of a guardian or take other appropriate action only when the lawyer reasonably believes that the client cannot adequately act in his or her interest. The difficulty as pointed out in the official comments to Rule 1.14 is that the disclosure of the client’s condition could adversely affect the client’s interests, and thus places the lawyer in an unavoidably difficult position. The ABA Committee on Ethics and Professional Responsibility stated that Rule 1.14 (b) creates a narrow exception to the normal responsibilities of a lawyer to his client, in permitting the lawyer to take action that by its very nature must be regarded as adverse to the client. The lawyer’s action under Rule 1.14(b) can precipitate a claim from the client, as in Kutnick v. Fischer, 2004-Ohio-5378 (Ohio App.), where a client albeit unsuccessfully sued attorney for malicious civil prosecution and abuse of process, where attorney sought determination of competency and appointment of guardian under Rule 1.14 (b).

Under Rule 1.16(a)(3) the attorney must withdraw from the case if discharged by his client. If the attorney withdraws, under Rule 1.16(d) attorney must deliver the file to the client as discussed in Opinion 92-37. Under the facts as presented Ms. Smith is the client, not Ms. Jones the Conservator. While title to property vests in the conservator and the conservator may prosecute or defend actions to protect the estate, generally the conservator does not have authority to make personal decisions. Attorney must make a reasonable determination as to whether client can adequately act in her own interest in the matter of attorney’s termination. Under the facts as presented the client apparently has some incapacity and the Probate Court has appointed the daughter as Conservator, while retaining jurisdiction. If the daughter had been appointed guardian of the client, the attorney would ordinarily look to the representative for decisions on behalf of the client as provided in the Comments to Rule 1.14, after attempting to communicate with client. If a guardian has not been appointed, and only if the attorney reasonably believes that the client cannot adequately act in her own interest in the matter of attorney’s termination, attorney may seek the appointment of a guardian or take other protective action. Since the Probate Court has retained jurisdiction, attorney may seek protective action in Probate Court concerning attorney’s termination. If the attorney seeks the appointment of a guardian, this action must be on attorney’s own authority under Rule 1.14 and not on behalf of a third party, which would be prohibited under Rule 1.7(a).