John Mounier Jr., Elder Protection Attorneys
The court appoints you to represent an individual facing charges which, if proven, could lead to loss of liberty and property. You meet confidentially with your new client, discuss the facts relating to the charges, assess your client’s responses and “mental clarity,” and evaluate your client’s exposure. You then appear in court on behalf of your client and report that you have met with your client, investigated the charges, and advise the court that the charges against your client are accurate and your client should suffer the loss of liberty and property.
You probably think that no lawyer would ever use the client’s confidential information against the client and advocate for constraints and restrictions against the lawyer’s own client. Think again – you’re not in criminal court any more. Welcome to the world of probate.
The Business and Professions Code Sections governing lawyer conduct have no exceptions for court-appointed lawyers. Section 6067 requires every lawyer to “faithfully…discharge the duties of any attorney at law to the best of his knowledge and ability.” California Rule of Professional Conduct 3-110 requires every lawyer to act competently.
Section 6068(e)(1) requires all lawyers “to maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client.” CRPC 3-100 (A) prohibits lawyers from disclosing information protected under Section 6068(e)(1) without the informed consent of the client, or the application of the exception under subsection (B).
Every court-appointed lawyer accepts the assignment subject to the above requirements. But, because lawyer appointment by the Probate Court is for parties believed to be mentally or emotionally compromised, the usual lawyer-client norms do not always apply.
Probate Code Section 1470(a) states:
The court may appoint private legal counsel for a ward, a proposed ward, a conservatee, or a proposed conservatee in any proceeding under this division if the court determines the person is not otherwise represented by legal counsel AND that the appointment would be helpful to the resolution of the matter or is necessary to protect the person’s interests.
A person “…who is unable to provide properly for his or her personal needs for physical health, food, clothing, or shelter…” (Probate Code § 1801(a)) may have a Conservator of the Person appointed to protect the person’s interests. Also, “…a person who is substantially unable to manage his or her own financial resources or resist fraud or undue influence” (Probate Code § 1801(b)) may have a Conservator of the Estate appointed.
The party is the client of the lawyer appointed, but consent to the appointment is not necessary. However, all other traditional consent requirements apply to the court-appointed lawyer.
If the party is “unable to provide properly for his/her personal needs” and/or “is unable to manage his/her own financial resources or resist fraud or undue influence,” how can the court-appointed lawyer obtain the client’s informed consent under CRPC 3-100 (A), or disclose confidential information obtained pursuant to the attorney-client relationship? It may not be possible to obtain informed consent from a proposed conservatee appointed by the court. The lawyer may not disclose confidential information obtained as a result of being appointed by the court absent client consent. This prohibition applies even if the lawyer believes that the client requires the protection of a conservatorship. See Cal. State Bar Form. Opn. 1989-112; Orange County Bar Ass’n Form. Opn. 95-002.
The lawyer represents only the client, and is not another set of “eyes and ears” for the probate court. The court-appointed lawyer is not a “neutral” trying to objectively assess the controversy and recommend a resolution. In sum, the lawyer appointed by the court cannot “spill the beans” or “rat out” his/her client.
About the author:
John Mounier is a member of BASF’s Legal Ethics Committee. His firm, Elder Protection Attorneys, represents the elderly and their families.