Ethical Issues for Guardians ad Litem

by Frank W. Streng on 02/24/2016

 

The WCBA Trusts & Estates Section and Westchester County Surrogate’s Court Present

 

Guardians Ad Litem in Surrogate’s Court Proceedings

 

 

Ethical Issues for Guardians ad Litem

 

 

 

 

 

Prepared by Frank Streng

McCarthy Fingar LLP

11 Martine Avenue

White Plains, NY 10606-1934

(914) 385-1022

 

 

 

 

 

 

 

Ethical Issues for Guardians ad Litem

 

1. A.              Introduction – Source Materials

 

• New York Rules of Professional Conduct

 

• Structure of Code:

 

• Rules are logically organized by the various roles that lawyers play and the tasks that they perform

 

• Code is 37 pages long and can be downloaded from NYSBA web site: http://www.nysba.org/Content/NavigationMenu/ForAttorneys/ProfessionalStandardsforAttorneys/NYRulesofProfessionalConduct4109.pdf

 

• Code, with comments, is 190 pages long and can be downloaded from NYSBA web site: http://www.nysba.org/Content/NavigationMenu/ForAttorneys/ProfessionalStandardsforAttorneys/FinalNYRPCsWithComments(April12009).pdf

 

• 8 basic roles/modules for  lawyers

 

• The Bullet Points

 

• Client-Lawyer Relationship (The 1 Series)

 

• Terminology and Definitions (Rule 1.0)
• Competence and Neglect (Rule 1.1)
• Scope of Representation and Allocation of Authority Between Lawyer and Client (Rule 1.2)
• Diligence in Representation (Rule 1.3)
• Communication with Client(Rule 1.4)
• Fees and Division of Fees (Rule 1.5)
• Confidentiality of Information (Rule 1.6)
• Conflicts of Interest: Current Clients (Rule 1.7)
• Current Clients: Specific Conflict of Interest Rules (Rule 1.8) –10 Rules in 1
  • Business Transactions with Clients
  • Rule 1.8(b) – Use of Information Relating to a Representation
  • Rule 1.8(c) – Solicitation of Gifts from Clients
  • Rule 1.8(d) –Literary and Media Deals with Clients
  • Rule 1.8(e) – Financial Assistance to Clients
  • Rule 1.8(f) – Accepting Payment from Third Parties
  • Rule 1.8(g) – Aggregate Settlements (Multiple Clients)
  • Rule 1.8(h) – Limiting Liability to Clients and Settling Malpractice Claims
  • Rule 1.8(i) – Acquiring Proprietary Interests in Litigation
  • Rule 1.8(j) – Sexual Relations with Clients
  • Rule 1.8(k) – Imputation of Sexual Relations Conflicts
  • Duties to Former Clients (Rule 1.9)
  • Specific Conflicts of Interest for Former and Current Governmental Officers and Employees (Rule 1.11)
  • Specific Conflicts of Interest for Former Judges, Arbitrators, Mediators or other Third-Party Neutrals (Rule 1.12)
  • Organization as Client (versus employee of organization) (Rule 1.13)
  • Client with Diminished Capacity (Rule 1.14)
  • Handling Client and Third-Party Property (Escrow Accounts) (Rule 1.15)
    • It’s Still the Number One Rule . . . .
    • Declining or Terminating Representation (Rule 1.16)
    • Sale of Law Practice (“retirement” only) (Rule 1.17)
    • Duties to Prospective Clients (Rule 1.18)

 

 

• Counselor (The 2 Series)

 

• Lawyer as advisor, including nonlegal considerations (Rule 2.1)
• Evaluation by lawyers for Use by Third Persons (Rule 2.3)
• Lawyer Serving as Third-Party Neutral (Rule 2.4)

 

• Advocate (The 3 Series)

 

• Non-Meritorious Claims and Contentions (Rule 3.1)
• Delay of Litigation (Rule 3.2)
• Conduct Before a Tribunal (Rule 3.3)
• Fairness to Opposing Party and Counsel (Rule 3.4)
• Maintaining and Preserving the Impartiality of Tribunals and Jurors (Rule 3.5)
• Trial Publicity (Rule 3.6)
• Lawyer as Witness (witness advocacy) (Rule 3.7)
• Special Responsibilities of Prosecutors and Other Government Lawyers (Rule 3.8)
• Advocate in Non-Adjudicative Matters (Rule 3.9)

 

• Transactions with Persons Other than Clients (The 4 Series)

 

• Truthfulness in Statements to Others (Rule 4.1)
• Communication with Person Represented by Counsel (Rule 4.2)
• Communicating with Unrepresented Persons (Rule 4.3)
• Respect for Rights of Third Persons (Rule 4.4)
• Communication after Incidents Involving Personal Injury or Wrongful Death (Rule 4.5)

 

• Law Firms and Associations (The 5 Series)

 

• Responsibilities of Law Firms, Partners, Managers and Supervisory Lawyers (Rule 5.1)
• Responsibilities of a Subordinate Lawyer (Rule 5.2)
• Lawyer’s Responsibility for Conduct of Non-lawyers (Rule 5.3)
• Professional Independence of a Lawyer (fee sharing with nonlawyers) (Rule 5.4)
• Unauthorized Practice of Law (Rule 5.5)
• Restrictions on Right to Practice (Rule 5.6)
• Responsibilities Regarding Nonlegal Services (Rule 5.7)
• Contractual Relationships Between Lawyers and Nonlegal Professionals (Rule 5.8)

 

• Public Service (The 6 Series)

 

• Voluntary Pro Bono Service (Rule 6.1)
• Membership in a Legal Services Organization (Rule 6.3)
• Law Reform Activities Affecting Client interests (Rule 6.4)
• Participation in Limited Pro Bono Legal Service Programs (Rule 6.5)

 

• Information About Legal Services (The 7 Series)

 

• Advertising and Solicitation Rules (Rules 7.1, 7.2, 7.3 and 7.5)
• Advertising of Specialization (Rule 7.4)

 

• Maintaining the Integrity of the Profession (The 8 Series)

 

• Candor in Bar Admission Process (Rule 8.1)
• Rule 8.2: Judicial Officers and Candidates
• Reporting Professional Misconduct (Rule 8.3)
• Definition of Misconduct (Rule 8.4)
• Disciplinary Authority and Choice of Law (Rule 8.5)

 

 

• American Bar Association’s Model Rules of Professional Conduct, adopted, in part, in New York, effective April 1, 2009, called the New York Rules of Professional Conduct

 

• Bar Association Opinions

 

• New York State Bar Association Committee on Professional Ethics
• New York City Bar Association
• New York County Lawyers Association

 

• Court decisions

 

 

1. B.             Conflicts of Interest

 

Should you accept your appointment and qualify as a Guardian ad Litem? There should be no technical difference between your decision to accept or refuse a potential engagement as a lawyer and your decision to accept or refuse an appointment as Guardian ad Litem

 

 

• Classic Conflicts of Interest Analyses 

 

• Should you accept an appointment if the appointment relates directly or indirectly to a client relationship?

 

• Could the appointment bring on a “business” or “relationship” conflict of interest?

 

• Could there be an appearance of impropriety?

 

Rule 1.7

 

 

(a)       Except as provided in paragraph (b), a lawyer shall not represent a client if a reasonable lawyer would conclude that either:

 

(1)     the representation will involve the lawyer in representing differing interests; or

 

(2) there is a significant risk that the lawyer’s professional judgment on behalf of a client will be adversely affected by the lawyer’s own financial, business, property or other personal interests.

 

(b)       Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a lawyer may represent a client if:

 

(1)   the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client;

 

(2)   the representation is not prohibited by law;

 

(3)   the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and

 

(4) each affected client gives informed consent, confirmed in writing.

 

• Existence of Conflict: Under Rule 1.7, you first determine whether a conflict exists.  A conflict exists if either (1) the attorney’s exercise of independent professional judgment on behalf of one client will be or is likely to be adversely affected by representing the other client, or (2) the simultaneous representation of both clients would be likely to involve the lawyer in representing differing interests.

 

• Possible Waiver of Conflict by Clients:  If there is a conflict, the attorney must determine whether the conflict may be waived by both clients.  Specifically, both clients can waive the conflict, provided it is obvious that the lawyer can adequately represent the interests of each client.

 

• Disclosure before Obtaining Waivers:  If the attorney concludes that, upon waiver, he or she can still adequately represent client, the attorney can obtain waiver from both clients only after full disclosure of the possible effect of the joint representation on the exercise of the lawyer’s independent professional judgment on behalf of each.

 

• Witness Advocacy Rule 

 

• Should you accept an appointment if you or someone you know will be a witness?

 

Rule 3.7

(a) A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness on a significant issue of fact unless:

(1) the testimony relates solely to an uncontested issue;

(2) the testimony relates solely to the nature and value of legal services rendered in the matter;

(3) disqualification of the lawyer would work substantial hardship on the client;

(4) the testimony will relate solely to a matter of formality, and there is no reason to believe that substantial evidence will be offered in opposition to the testimony; or

(5) the testimony is authorized by the tribunal.

(b) A lawyer may not act as advocate before a tribunal in a matter if:

(1) another lawyer in the lawyer’s firm is likely to be called as a witness on a significant issue other than on behalf of the client, and it is apparent that the testimony may be prejudicial to the client; or

(2) the lawyer is precluded from doing so by Rule 1.7 or Rule 1.9.                                            

 

1. C.             Obligations to Court and Ward

 

1. Understanding differences between (1) your duties as an attorney representing a client and (2) your duties as a Guardian ad Litem

 

1. Select Issues:

 

• Attorney-Client Privilege: does it exist?  No, but be guided by some of the precepts that govern attorney-client relationships.  Consider, for example, that your disclosure of a communication with either your ward or your ward’s parents could compromise your duties as a Guardian ad Litem

 

• Duties to the Court as a court-appointed attorney: do you have such a duty?

 

1.                                                     i.     Your duty is to act independency to protect the interest of your ward.

 

1.                                                    ii.     While you often will act as an advocate for your ward, you shoud consider that the Court’s also has duties to approve or disapprove your recommendations in behalf of your ward

 

1.                                                  iii.     What if a court attorney or the judge has a strong recommendation to you for prospective recommendations or actions for your ward?  Should you follow it?  Yes, if you believe, in your independent judgment, that such a recommendation is in your ward’s best interest.

 

1.                                                  iv.     Examples of differences between your roles as an attorney and a Guardian ad Litem: recommending probate for an attorney-supervised executed will with no identifiable grounds for objections to probate.

 

• Is your ward able to give you instructions?  What is the cognitive ability/skill of your ward?

 

• Are you obligated to take instructions from your ward or your ward’s family, such as a parent?

 

• Ethical Rule on Representing a Client with Diminished Capacity

 

Rule 1.14

(a) When a client’s capacity to make adequately considered decisions in connection with a representation is diminished, whether because of minority, mental impairment or for some other reason, the lawyer shall, as far as reasonably possible, maintain a conventional relationship with the client.

(b) When the lawyer reasonably believes that the client has diminished capacity, is at risk of substantial physical, financial or other harm unless action is taken and cannot adequately act in the client’s own interest, the lawyer may take reasonably necessary protective action, including consulting with individuals or entities that have the ability to take action to protect the client and, in appropriate cases, seeking the appointment of a guardian ad litem, conservator or guardian.

(c) Information relating to the representation of a client with diminished capacity is protected by Rule 1.6. When taking protective action pursuant to paragraph (b), the lawyer is impliedly authorized under Rule 1.6(a) to reveal information about the client, but only to the extent reasonably necessary to protect the client’s interests.

 

1. D.             Delegation of Responsibility to Other Professionals

 

1. Are you fully competent do carry out your duties as Guardian ad Litem?  If not, you might need to obtain assistance from others.

 

Ethical Rule on Competent Representation of Client

 

Rule 1.1

 

(a)     A lawyer should provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.

 

(b)     A lawyer shall not handle a legal matter that the lawyer knows or should know that the lawyer is not competent to handle, without associating with a lawyer who is competent to handle it.

 

(c)     A lawyer shall not intentionally:

 

(1)    fail to seek the objectives of the client through reasonably available means permitted by law and these Rules; or

 

(2)    prejudice or damage the client during the course of the representation except as permitted or required by these Rules.

 

 

1. Working with others at your law firm to assist on your report.  Is that ethically permissible?

 

1. What do you do if, for example, in an accounting proceeding, you determine that you need to retain an accountant to assist you as to accounting or tax areas? Here, you might seek court approval for authorization to use an outside vendor, like an accountant, as part of your work, but you and the vendor should know that his/her/its fees are also subject to court approval.

 

1. Is it okay to be aligned with an attorney representing a client with similar/identical interest as your award? Yes, but you, and you alone, speak for the interests of your ward.

 

1. E.              Putnam/Weinstock

 

1. As a Guardian ad Litem, you need to be well versed in all of the ethical precepts and rules regarding potential gifts to a lawyer and appointment of attorneys as executors and trustees.

 

1. Ethical Rule: Solicitation of Gifts from Clients

 

Rule 1.8(c)

 

A lawyer may accept a gift from a client if the transaction meets general standards of fairness. If a client offers the lawyer a gift, paragraph (c) does not prohibit the lawyer from accepting it, although such a gift may be voidable by the client. Before accepting a gift offered by a client, a lawyer should urge the client to secure disinterested advice from an independent, competent person who is cognizant of all of the circumstances. In any event, due to concerns about overreaching and imposition on clients, a lawyer may not suggest that a gift be made to the lawyer or for the lawyer’s benefit. 

 

1. The Putnam rule:

 

Almost needs no introduction: It started with an attorney, in which, in 1931, the Court of Appeals held that, in the absence of an acceptable explanation, a jury would be justified in drawing an inference of undue influence as to a bequest drafted by the drafting attorney to the drafting attorney.

 

• Hearing v. Affidavit

 

• Even when attorney did not draft the Will, court can hold hearing

 

• Bare minimum Court will require an affidavit explaining circumstances of the bequest to attorney

 

• Usually Court renders decision

 

• Putnam rule has been widely expanded to apply to just about anyone with a confidential relationship able to exercise influence.

 

• Examples: doctors, dentists, nurses, clergyman, accountants, secretary and relatives of attorney, charity created by attorney

 

• Ethical Considerations on Appointment of Lawyers as Fiduciaries

 

• Lawyers cannot influence a client to name you as fiduciary; avoid the appearance of impropriety.

 

• See NYSBA Opinion #481 (3/28/78): Opinion holds that a lawyer offering to serve as executor is not improper, per se, but you must exercise great caution.  Initially, the opinion stresses the propriety of the drafter using his or her influence in being named as an executor.  However, the opinion found a substantial exception as follows:

 

There may be circumstances which can justify a lawyer’s conduct in offering his services as executor.  Principally, those circumstances must be such as support a firm conviction that the client would request his lawyer to serve in that capacity if he were aware of the lawyer’s willingness to accept the responsibility.  Not only should the lawyer have enjoyed a long-standing relationship with the client, but it must also appear that the client is experiencing difficulty in selecting other persons qualified and competent to serve as executor.

 

(Emphasis Supplied)

 

• Sanctions can be applied if lawyers are not careful and do not follow the letter and spirit of the ethical considerations

 

• Weinstock case: attorney fiduciary is denied letters in probate proceeding

 

• Harris permits Weinstock objection in accounting proceeding

 

• Courts take action

 

• Denial of letters
• Denial of commissions
• Limitation to one commission where multiple fiduciaries

 

• Relationship between attorney fees and commissions

 

• SCPA 2307-a: Absence compliance with the statute’s disclosure forms to be executed by client – client agrees that you are entitled to full commissions and full fees – then commission is one-half of statutory commission

 

 

1. F.               Settlement of Cases, SCPA 2106

 

 

1. Under SCPA 2106, if and when a case settles between the parties, a Guardian ad Litem needs to make a recommendation to the Court as to whether you will accept the settlement and, if so, to obtain court authorization for you to execute the settlement in behalf of your ward.

 

1. A decision by you, as Guardian ad Litem, to settle a case is a culmination of all of the ethical and substantive principles that govern your work as Guardian ad Litem.

 

1. For attorneys, attorneys cannot move forward with a settlement without actual authority from a client.  For a Guardian ad Litem, you will have to navigate your role carefully and, often, not move forward with a settlement unless you have the support of your ward or your ward’s family, but never acting contrary to the duty as you see it to act for your ward.  However, it is understood that you need to communicate your communications with your ward, to the extent that it is practicable.

 

1. Finally, consider that, while it is very, very rare, Guardians ad Litem have found themselves defendants in lawsuits, brought by their former ward.