Opinions

Ethics Opinion 353

Whether a lawyer representing a client with diminished capacity can seek the appointment of a substitute surrogate decision-maker when the current surrogate decision-maker is making decisions for the client against the advice of the lawyer


A lawyer representing an incapacitated person with a surrogate decision-maker should ordinarily look to the client’s chosen surrogate decision-maker for decisions on behalf of the client and accord the surrogate decision-maker’s choices the same weight as those of a client when the client is unable to express, or does not express, a contrary view. A lawyer may not substitute her judgment for the judgment of the surrogate decision-maker when the surrogate decision-maker is acting within the scope of the power afforded to her by law, was selected by the incapacitated person before becoming incapacitated, and is not engaged in conduct creating a risk of substantial harm or acting in a manner that would otherwise require a lawyer to withdraw from representation of a client acting in the same manner. If the surrogate decision-maker is engaged in conduct creating a risk of substantial harm or acting in a manner that would otherwise require a lawyer to withdraw from representation of a client acting in the same manner, then the lawyer may take protective action including seeking a substitute decision-maker. The lawyer may not withdraw because a withdrawal will substantially harm the client and no grounds for a prejudicial withdrawal under Rule 1.16(b) exist.

Applicable Rules

  • Rule 1.2 (Scope of Representation)
  • Rule 1.14 (Client with Diminished Capacity)
  • Rule 1.16 (Declining or Terminating Representation)

The Inquiry
A lawyer has requested guidance for resolving the following dilemma: the lawyer was hired by a durable power of attorney agent (POA agent) to represent an elderly incapacitated individual in a foreclosure suit involving that individual’s residence.[1] The client is unable to communicate. The POA agent is the client’s granddaughter as well as the client’s primary caregiver. The client selected her granddaughter to be her POA agent before the client became incapacitated. The lawyer filed suit on the client’s behalf alleging that the mortgage was an unconscionable, predatory home loan. The mortgage company is defending against the suit claiming the mortgage was fair, the family knew about the terms, and the family, including the POA agent, spent the money on themselves. According to the inquirer the family denies the allegations but the allegations have tainted the litigation. To improve the atmospherics and maintain the focus of the litigation on the nature of the loan, the lawyer asked the POA agent to resign in favor of an independent agent to present a “clean” agent to the court. The POA agent refused. The lawyer asks if he can or must withdraw based on the POA agent’s alleged bad acts or whether he may pursue a substitute guardianship in spite of the POA agent’s refusal to step down.

The question of pursuing a substitute guardian under these circumstances is one for which there is no clear answer. Instead a lawyer in this situation must engage in reasonable deliberation employing the framework provided by Rule 1.14. The lawyer could use information derived from the allegations made by the defendants to present to the court an ex parte request for a substitute guardian for the limited purpose of pursuing the foreclosure litigation. Alternatively, the lawyer could pursue the litigation with the current POA agent in place. As we discuss below, the choice between the two options depends on a reasoned assessment of the risks attendant to proceeding with the current POA agent weighed against the previously expressed wishes of the incapacitated person when she selected her POA agent.[2]

Discussion
The D.C. Rules of Professional Conduct regulate most aspects of the attorney-client relationship. Most duties imposed run from attorneys to clients. In its simplest form, a legally competent client hires a lawyer or firm to perform a distinct legal task. In such instances, it is easy to identify the client, and the client has no difficulty communicating with the attorney and making decisions regarding the representation.

Rule 1.14 addresses circumstances, such as those presented by this inquiry, when this paradigm breaks down. The Rule does so by creating a framework for modifying the ordinary relationship. In the first instance, the Rule directs that a “lawyer shall, as far as reasonably possible, maintain a typical client–lawyer relationship with the client” when “a client’s capacity to make adequately considered decisions in connection with a representation is diminished.” D.C. Rule 1.14(a).

As explained in the treatise The Law of Lawyering

Rule 1.14(a) establishes a preference for maintaining client-lawyer relationships that are normal ‘as far as reasonably possible.’ At some point, however, the ability of a disabled client to communicate or to take action is so limited that assigning that person the role of ‘client’ is a mere formality…. At that point, Rule 1.14(b) permits a lawyer to seek guidance from a guardian or to take other ‘protective action.’

Geoffrey C. Hazard, Jr. & W. William Hodes, The Law of Lawyering, 18-4.1 (3rd ed. Supp. 2004-2).

Rule 1.14 does not specifically address the role of the surrogate decision-maker. The comments to the Rule, however, state that “[i]f a surrogate decision-maker has already been appointed for the client, the lawyer should ordinarily look to that person for decisions on behalf of the client…[but] the lawyer should consult with the represented person to the maximum extent possible, as indicated in comment [2] above.” D.C. Rule 1.14, Comment [4].

Comment [2] instructs that

[t]he fact that a client suffers a disability does not diminish the lawyer’s obligation to treat the client with attention and respect. Even if the person has a surrogate decision-maker, the lawyer should as far as possible accord the represented person the status of client, particularly in maintaining communication. “Surrogate decision–maker” denotes an individual or entity appointed by a court or otherwise authorized by law to make important decisions on behalf of an individual who lacks capacity to make decisions in one or more significant areas of his or her life.

D.C. Rule 1.14, Comment [2]. Thus, as here, when a client who has a POA agent is incapable of communicating with the lawyer, the lawyer would “ordinarily” look to the POA agent for all decisions made by a client.

The question of whether to seek a change in the POA agent for purposes of pursuing this litigation is a decision for which, under a normal attorney-client relationship, the attorney must defer to the client. Rule 1.2 requires that a lawyer “abide by a client’s decisions concerning the objectives of representation…and shall consult with the client as to the means by which they are to be pursued.” D.C. Rule 1.2(a). Comment [1] to D.C. Rule 1.2 addresses the distinction between the objective and means:

A clear distinction between objectives and means sometimes cannot be drawn, and in many cases the client-lawyer relationship partakes of a joint undertaking. In questions of means, the lawyer should assume responsibility for technical and legal tactical issues, but should defer to the client regarding such questions as the expense to be incurred and concern for third persons who might be adversely affected.    

D.C. Rule 1.2, Comment [1]. Though characterized by the inquirer as a means to advance the foreclosure litigation, replacing the POA agent is an objective of representation, as well as a means to advancing the foreclosure suit. As a means it is closer to “such questions as the expense to be incurred and concern for third persons who might be adversely affected” than it is to “technical and legal strategy.” Thus in this circumstance the lawyer would typically “defer to the client,” which, under these facts, means “ordinarily” looking to the POA agent for the decision.[3]

We are presented with the question of whether a disagreement between the lawyer and the surrogate decision-maker on a matter that is for the client to decide is an extraordinary circumstance in which the lawyer should not abide by the surrogate decision-maker’s wishes on behalf of a client with diminished capacity. The tenor of Rule 1.14 and the comments to the Rule make clear that the drafters envisioned extraordinary circumstances as those in which the client disagrees with the surrogate decision-maker and may have the capacity to make decisions on the particular issue in dispute.[4] That is not the circumstance presented here.

Rule 1.14 and the comments also address the ability of a lawyer to take protective action for a client with diminished capacity who does not have a POA agent. Rule 1.14 permits protective action “when the lawyer reasonably believes that the client has diminished capacity” and “is at risk of substantial physical, financial or other harm unless action is taken…” D.C. Rule 1.14 (b). If this threshold is met, the lawyer may “consult[] with individuals or entities that have the ability to take action to protect the client and, in appropriate cases, seek the appointment of a surrogate decision-maker.” Id. Neither the Rule nor the comments explicitly address the circumstance here, namely that there is a surrogate decision-maker who is acting within her authorized power but refuses to follow the advice of counsel.

The tension presented by this inquiry is described in The Law of Lawyering.   

When the three-way relationship is functioning properly, the guardian can be thought of as the “primary client”, as described in §2,7, while the impaired person—or perhaps the best interests of the impaired person—becomes the “derivative” client. The lawyer functions appropriately by assisting the primary client in carrying out his “objectives,” which the law assumes will usually be in the best interests of the disabled person. When the person’s disability is so severe that there is not even an ability to formulate or communicate ideas, the lawyer should realize that the guardian is no more capable of ascertaining the person’s best interests than is the lawyer, but neither is he any less able to do so. In this context the “best interest” of the disabled person is an abstraction, and the lawyer has no special ability to second-guess on behalf of the derivative client.
On the other hand, there may be cases in which it is obvious where the disabled person’s best interests lie, and that the guardian is acting contrary to them. In such cases (a conservator looting his ward’s estate is the most obvious example), the lawyer may have a duty to act adversely to one client in order to serve the other, as in other situations involving primary and derivative clients.

Hazard & Hodes, The Law of Lawyering, 18-16 (emphasis in the original).

Is failing to follow the advice of the attorney in this circumstance obviously contrary to the incapacitated person’s interests such that the lawyer can take action counter to the POA agent’s direction? We think the answer comes from the guidance provided in Rule 1.14 for taking protective action.

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 surrogate decision-maker.

D.C. Rule 1.14(b).

It could be argued that the POA agent has a conflict of interest with the client with respect to this decision and should remove herself as the surrogate decision-maker. On the other hand, the POA agent is the client’s granddaughter. She lives with her grandmother. She has an interest in winning the litigation. She is the primary caregiver. The client selected her as the POA agent before the client became incapacitated. Maintaining her role as the POA agent is consistent with “respecting the client’s family and social connections” and with “the wishes and values of the client to the extent known.” D.C. Rule 1.14, Comment [5].[5] Although the surrogate decision-maker is not completely disinterested, this is not an instance of a conservator looting her ward’s estate.

In this instance, while the inquirer expressed some concerns about the POA’s past conduct, nothing in the inquiry suggests that the POA agent is currently engaged in criminal conduct, intends to engage in criminal conduct, or intends to use the lawyer’s services to engage in criminal conduct or perpetrate a fraud on the court. Nor is there any indication that the POA agent is currently failing to provide ongoing care to the client, or failing to pursue any legal recourse to prevent the foreclosure. As explained below, if any of these circumstances was present, the lawyer would be permitted to take protective action, including seeking a substitute decision-maker.

Thus, neither the POA agent’s interest nor allegations of past bad conduct requires protective action by the lawyer. Instead, the determination of whether protective action is permitted comes down to one of reasoned judgment about the impact of the POA agent’s decision not to withdraw and her ongoing presence in the litigation.

If the difference between the lawyer’s recommended course of action for withdrawal and the course preferred by the POA agent does not rise to the circumstance that would allow a lawyer to take protective action on behalf of a client if the disagreement was between the lawyer and a client with diminished capacity, then it is not permissible for a lawyer to take action against the directive of the client’s surrogate decision-maker. Thus, if the ongoing presence of the POA agent in the litigation does not create a risk of substantial harm, the lawyer cannot seek a new surrogate decision-maker.

On the other hand if, in the lawyer’s judgment, the failure to secure a “clean agent” presents a substantial risk that the client will lose her residence, then protective action can be taken. That action should be narrowly fashioned.[6] In the instant case, the information used to pursue a new surrogate should be limited to the allegations made by the defendant and the scope of the substitute guardianship should be limited to the instant litigation.

The inquiry also asked if withdrawing from the matter was required or an available option. According to the inquirer, withdrawal at this stage in the litigation will likely result in the residence being lost. Withdrawal that would harm the client is only permitted in five enumerated circumstances:

[A] lawyer may withdraw from representing a client if withdrawal can be accomplished without material adverse effect on the interests of the client, or if:
(1) The client persists in a course of action involving the lawyer’s services that the lawyer reasonably believes is criminal or fraudulent;
(2) The client has used the lawyer’s services to perpetrate a crime or fraud;
(3) The client fails substantially to fulfill an obligation to the lawyer regarding the lawyer’s services and has been given reasonable      warning that the lawyer will withdraw unless the obligation is fulfilled;
(4) The representation will result in an unreasonable financial burden on the lawyer or obdurate or vexatious conduct on the part of the client has rendered the representation unreasonably difficult;
(5) The lawyer believes in good faith, in a proceeding before a tribunal, that the tribunal will find the existence of other good cause for withdrawal.

D.C. Rule 1.16(b). 

None of these circumstances are present here. Further, it is difficult to imagine a circumstance under which permissive withdrawal causing substantial harm would be appropriate when representing a client with diminished capacity. Instead, if the client or the POA agent were to engage in the conduct described in Rule 1.16(b) that would ordinarily cause a lawyer to withdraw, that is a circumstance under which the lawyer should take protective action pursuant to Rule 1.14. This could include seeking the appointment of a surrogate decision-maker if the client does not have one, or seeking a substitute surrogate decision-maker where the client does have one.

Conclusion
Representation of incapacitated clients can be difficult. The Rule guiding the attorney–client relationship with clients with diminished capacity is permissive and a rule of reason. “When the lawyer reasonably believes that the client…is at risk…the lawyer may take reasonably necessary protective action….” D.C. Rule 1.14 (b). These cases will turn on the specific circumstances and the reasonableness of the decisions made by the lawyer.

In this opinion, we address a narrow set of facts—a severely incapacitated client, a previously selected surrogate decision-maker acting within the scope of the power afforded to her by law, and a disagreement about one part of the litigation. In this instance, the lawyer should look to the surrogate decision-maker unless the surrogate decision-maker’s choice creates a risk of substantial physical, financial, or other harm to the incapacitated person.

Published: February 2010

[1] We assume that the only client of the lawyer in this matter is the incapacitated person. In this instance, it is possible, absent clear instructions to the contrary, that the POA agent may believe she is also a client. The POA agent is not a lawyer and although the retainer agreement identifies the incapacitated person as the client, the verified complaint and discovery responses are signed and/or sworn to by the POA agent; the POA agent has been told that her communications with the lawyer are confidential; the communications between the POA agent and the lawyer have been treated as confidential by opposing parties; the POA agent lives in the residence that is the subject of the litigation; and the POA agent initiated the representation and signed the retainer on behalf of the client who is the owner of the home. If there is an attorney–client relationship with the POA agent as well as with the incapacitated person, a different analysis would apply and the rules governing conflicts would have to be analyzed. Because “[p]rinciples of substantive law external to [the D.C. Rules of Professional Conduct] determine whether a client–lawyer relationship exists” we do not assess whether the POA agent is also a client of the lawyer. D.C. Rule 1.6 Comment [9].

[2] For purposes of this opinion, we make several assumptions that shape the analysis. First, we assume that the POA agent has the legal authority under District of Columbia law to make the decisions discussed in this opinion for the client. See D.C. Code § 21-2001 et seq. (Guardianship, Protective Proceedings and Durable Power of Attorney). Second, we assume that the client is entirely unable to communicate her desires. Third, we assume that there is no other source of information about the client’s desires with respect to the house or the litigation to prevent the foreclosure. For example, that she had not previously written out her desires about her home. And, finally, we assume as noted above that the only client of the lawyer in this matter is the incapacitated person.

[3] For clients with diminished capacity, Rule 1.2 directs a lawyer to Rule 1.14 – “In a case in which the client appears to be suffering mental disability, the lawyer’s duty to abide by the client’s decisions is to be guided by reference to D.C. Rule 1.14” (D.C. Rule 1.2 Comment [2])—which in turn directs a lawyer to the surrogate decision-maker.

[4] This opinion does not address circumstances in which the client can communicate his desires and those desires conflict with the direction being given by the POA agent. An analysis of a dispute between the client and the POA agent requires assessing the specific authority of the surrogate decision maker, see D.C. Code § 21-2001 et seq. (Guardianship, Protective Proceedings and Durable Power of Attorney), and assessing the capacity of the client to make the decisions in question, see comment [1] to Rule 1.14, (minors, the elderly, and the mentally ill “often [have] the ability to understand, deliberate upon, and reach conclusions about matters affecting the client’s own well-being.”). When a client with diminished capacity can communicate his desires, Rule 1.14 directs the lawyer to maintain a “typical client-attorney relationship” and thus may require that the lawyer advocate against the direction of the POA agent or seek a substitute agent. D.C. Rule 1.14(a).

[5] The District of Columbia’s Guardianship Act also gives preference to the incapacitated person’s choice. “Unless lack of qualification or other good cause dictates, the court shall appoint a guardian in accordance with the incapacitated individual’s current stated wishes or his or her most recent nomination in a durable power of attorney.” D.C. Code § 21-2043(b). See also D.C. Code § 21-2057 (a) (1) and (2) (appointment of a conservator).

[6] Comments [5] and [7] to Rule 1.14 address protective action and make clear that while the evaluation of the circumstances “is entrusted to the professional judgment of the lawyer,” the actions taken should be the “least restrictive form of intervention” and should be guided by “the wishes and values of the client to the extent known, the client’s best interest, the goals of intruding into the client’s decision-making autonomy to the least extent feasible, maximizing client capacities and respecting the client’s family and social connections.”

February 2010