Ethics Opinion 336
A Lawyer’s Fiduciary Role as a Court-Appointed Guardian of an Incapacitated Individual
A lawyer who has been appointed as a guardian of an incapacitated individual (but who is not acting as an attorney for the incapacitated individual) must not knowingly make a false statement of material fact or law to a tribunal or otherwise engage in conduct involving dishonesty or misrepresentation. A lawyer acting as a guardian who assists the incapacitated individual in obtaining government benefits, but then subsequently learns that the incapacitated individual’s true identity is not as it has been represented may well be required under applicable law to disclose the correct information. Moreover, a lawyer who receives information clearly establishing that a fraud has been perpetrated on a tribunal must reveal the fraud; there is no duty of confidentiality imposed by the Rules of Professional Conduct that would prevent the lawyer acting solely as a guardian from making such a disclosure.
- 3.3 (Candor Toward the Tribunal)
- 8.4 (Misconduct)
The inquirer, a member of the District of Columbia Bar, has been appointed by the Probate Division of the Superior Court of the District of Columbia to serve as a “permanent general guardian” of an incapacitated individual, with the powers and duties set forth in D.C. Code § 21-2047.1 He has asked the Committee for guidance on how to proceed on the following set of facts. Prior to the inquirer’s appointment as guardian of the incapacitated individual, the incapacitated individual had suffered a stroke that left him partially paralyzed and required that he be hospitalized. He presented a name and social security number at the time of admission to the hospital. The Court acted on the assumption that the name and social security number were legitimate. The inquirer has determined categorically that the incapacitated individual’s identity is false, but he has no way of determining the incapacitated individual’s true identity. The incapacitated individual is an immigrant, but the inquirer has been unable to determine his status or to locate any family members. He is presumed to be homeless, is gravely ill, and cannot care for himself. He is totally nonverbal and is unable to write or comprehend communications.
Before learning that the individual’s identity was false, the inquirer used the social security number and other identifying information the incapacitated individual provided to obtain Medicaid and social security benefits and to place the incapacitated individual in a nursing home.2 Pursuant to D.C. Code § 21-2047, the inquirer, as guardian, has responsibility for the care, custody, and control of the incapacitated individual, including, among other responsibilities, discretion to take appropriate action to compel performance by any person of a duty to support the incapacitated individual and pay sums for his welfare; an obligation to maintain sufficient contact with the incapacitated individual to know the incapacitated individual’s capacities, limitations, needs, opportunities, and physical and mental health; an obligation to take care of the incapacitated individual’s personal effects; and an obligation to conserve any excess money for the incapacitated individual’s future needs. (In this case, the only funds at issue are those that the incapacitated individual has received from government assistance programs). The inquirer has determined that the incapacitated individual cannot be safely discharged from the nursing home.
The inquirer seeks guidance on how to resolve an apparent conflict between his duties under the District of Columbia Rules of Professional Conduct (“Rules”) and the District of Columbia guardianship statute. In particular, the inquirer wants to know whether he may continue to use the name that the incapacitated individual has been using; whether he has any affirmative duty to disclose information about the incapacitated individual’s false identity to third parties; and whether he must follow the District of Columbia guardianship laws or the Rules whenever a conflict between them arises.
As we understand the facts of the inquiry, the inquirer is not serving as counsel to the incapacitated individual. Rather, the inquirer has the statutory powers and duties enumerated in the guardianship statute under which he was appointed.3 Moreover, the inquirer has given no indication that an attorney-client relationship existed prior to the individual’s incapacity.
We believe the fact that the incapacitated individual has never had the ability to communicate with the inquirer or participate in decisions about his welfare supports the conclusion that no lawyer-client relationship has been formed. As noted by the ABA Standing Committee on Ethics and Professional Responsibility, a “client-lawyer relationship presumes that there can be effective communication between client and lawyer, and that the client, after consultation with the lawyer, can make considered decisions about the objectives of the representation and the means of achieving those objectives.” ABA Formal Op. 96-404 (1996); see also NC Bar Formal Ethics Op. 11 (2005) (A lawyer appointed as a guardian ad litem for a parent with diminished capacity in a Termination of Parental Rights action does not have a lawyer-client relationship with the parent). Absent information that would indicate such a relationship ever existed between the inquirer and the incapacitated individual, we believe that it is reasonable to conclude that no such relationship exists.
Certain Rules of Professional Conduct are applicable to the inquirer’s conduct notwithstanding the fact that the inquirer is not acting as the incapacitated individual’s counsel. Although some Rules apply only if a client-lawyer relationship has been formed, see, e.g., Rules 1.2; 1.6; 1.16, others apply to members of the bar regardless of whether they are engaged in professional activities. Specifically, D.C. Rules 3.3(a)(1), 3.3(d), and 8.4(c) govern the inquirer’s conduct, even though he is not functioning as counsel to the incapacitated individual.
Rule 3.3(a)(1), which mandates candor to a tribunal, provides that “a lawyer shall not knowingly . . . make a false statement of material fact or law to a tribunal.” Comment  to Rule 3.3 provides that, “[t]here may be circumstances where failure to make a disclosure is the equivalent of an affirmative misrepresentation.” Rule 3.3(d) provides in pertinent part that “[a] lawyer who receives information clearly establishing that a fraud has been perpetrated upon the tribunal shall promptly reveal the fraud to the tribunal unless compliance with this duty would require disclosure of information otherwise protected by Rule 1.6, in which case the lawyer shall promptly call upon the client to rectify the fraud.”4 Rule 8.4(c) provides that “it is professional misconduct for a lawyer to . . engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.”
The Rules define “tribunal” broadly to include regulatory agencies that render decisions of a judicial or quasi-judicial nature, regardless of the degree of formality or informality of the proceedings. D.C. Rules, Terminology. Accordingly, if the inquirer, in performing his duties as guardian, finds it necessary to appear at a hearing before an agency that determines entitlement to benefits, Rule 3.3(a)(1) would apply to the inquirer’s conduct before that tribunal.
The inquirer is obligated under the guardianship statute to “report in writing the condition of the ward and of the incapacitated individual’s estate . . . at least semi-annually.” D.C. Code § 21-2047. Even though there has been no finding that the incapacitated individual has the requisite state of mind to have committed fraud or a crime, the inquirer has obtained “conclusive” evidence that the incapacitated individual is not who he purports to be. Accordingly, the inquirer has an affirmative duty to “reveal the fraud to the tribunal.” D.C. Rule 3.3(d). Indeed, withholding the fact that the incapacitated individual had obtained benefits using a false name and social security number would likely constitute a “circumstance where the failure to make a disclosure is the equivalent of an affirmative misrepresentation.” D.C. Rule 3.3, Comment .
Whether appearing before a tribunal, completing paperwork to continue benefits, attesting to guardianship of the incapacitated individual, or cashing the incapacitated individual’s benefit checks, the inquirer must, at all times, comply with the requirements of Rule 8.4(c), which prohibits conduct involving dishonesty, fraud, deceit, or misrepresentation. Virtually any conduct by the inquirer that relies on or otherwise uses information the inquirer knows to be false would constitute dishonesty, deceit, or misrepresentation, even if the conduct is not legally fraudulent.
The inquirer may not continue to use the name that the incapacitated individual is using; we believe that failure to disclose the false identity would be the equivalent of misrepresentation. This matter presents no conflict between District of Columbia guardianship law and the Rules of Professional Conduct.
Approved: May 2006
Published: September 2006
1. Letter of Guardianship Issued Pursuant to Original Order of Appointment under Guardianship and Protective Proceeding Act of 1986, Effective September 30, 1989.
2. It is not clear from the inquiry to whom the incapacitated individual initially provided this information. The inquirer says he presumed the individual had “borrowed” the identifying information.
3. Appointment of a lawyer as guardian for an incapacitated individual does not create an attorney-client relationship where none existed previously, and a guardian under the District of Columbia statute is not required to be a lawyer. See D.C. Code § 21-2043, which provides that “any qualified person may be appointed guardian of an incapacitated individual.” The statute also lists as priority for consideration for guardianship appointment qualified spouses, adult children, parents, and relatives of the incapacitated individual; it does include a prerequisite that a guardian be qualified to serve as counsel for the incapacitated individual or any requirement that a guardian serve as counsel. This is different from the situation where a lawyer is appointed as a guardian ad litem. In D.C. Ethics Op. 295 (2000), we concluded that a lawyer appointed as a guardian ad litem in a child abuse and neglect proceeding is properly considered to be the child’s lawyer.
4. Whether or not the incapacitated individual committed fraud when originally presenting his false identity – a question that we have no occasion to address here – the inquirer has received “information clearly establishing that a fraud has been perpetrated upon the tribunal,” and must, therefore, reveal the fraud to the tribunal unless revealing it would violate Rule 1.6. However, as we explain above, Rule 1.6 does not apply here because the incapacitated individual is not the inquirer’s client.