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The inquirer raises the following problem:
"I
had represented an elderly lady in a number of minor legal matters.
As she became less able to handle her own affairs, a daughter petitioned
the County Court to have a guardianship established naming a bank
as guardian of the property and an individual as guardian of the
person. I acted as attorney in the establishment of the guardianship.
This same daughter has now retained other counsel, and instigated
a proceeding to remove the guardian of the person alleging he is
unfit to serve in that capacity.
"If
I now represent the interests of the guardian of the person in the
removal proceedings, have I placed myself in a position of having
a conflict of interest? It should be born (sic) in mind that all
parties are aware of my representation of the ward before the establishment
of the guardianship, as well as being attorney for the guardianship
to date."
The
facts stated in the inquiry indicate that this is not a guardianship
of a minor, Chapter 38, Article 1, R.R.S. 1943, nor a spendthrift
guardianship, Chapter 38, Article 3, R.R.S. 1943, but, rather, the
guardianship of a mentally ill or mentally incompetent person, Chapter
38, Article 2, R.R.S. 1943, as to whom there is guardianship of
the estate and the person.
The
attorney had represented the ward in a number of legal matters before
the guardianship, she became unable to manage her affairs, her daughter
petitioned the county court for the appointment of a guardian, and
separate guardians for the ward's estate and person were appointed.
The attorney represented the daughter in the guardianship proceedings.
All parties are aware of the attorney's representation of the ward
before guardianship, as well as his representation of the guardians
since that time. The daughter has now employed other counsel in
a proceeding to remove the guardian of the person because of alleged
"unfitness".
Within
the foregoing facts, the following question is asked:
If I
now represent the interests of the guardian of the person in the
removal proceedings, have I placed myself in a position of having
a conflict of interest?
Although
a proceeding for the appointment of a guardian in inquisitorial
in nature, rather than adversary, there is, even so, a hostility
to freedom, however benevolent the move, Hall v. Hall, 122 Neb.
228, 240. The proceeding for the removal of the guardian of the
person appears to be adversary, inasmuch as the statutory grounds
for the removal of a guardian, Section 38-507, R.R.S. 1943, are:
1. That
he is insane;
2. That
he is otherwise incapable of discharging his trust; and
3. That
he is evidently unsuitable.
Accordingly,
if the attorney attempted the employment he would appear in opposition
to a former client in an adversary proceeding involving one facet
of his former employment. There may, or may not be, a conflict of
interest in fact, but at this time this can not be predicted. It
may bear the indicia of impropriety, however.
However,
I am of the opinion that the attorney should decline the employment
for a reason which is to me more compelling.
The
ward was his client before the guardianship and it may be, and should
be, presumed that he served her best interests in the guardianship
proceeding. Since that tie she could neither employ nor discharge
him. Her best interests may, or may not be, best served by the removal
of the guardian of the person. This is an issue of fact which is
not resolved at this time. If he represents the guardian of the
person and resists the removal proceedings he may be rendering a
disservice to the ward. He should not prejudge the matter.
I conclude
that there may a conflict of interest and that there will be an
appearance of impropriety if the employment is accepted.
The
proposed employment falls within the prohibition of EC 9-6, of the
Code of Professional Responsibility, which in part provides:
Every
lawyer . . . [should] . . . strive to avoid not only professional
impropriety but also the appearance of impropriety.
In State
ex rel. Nebraska State Bar Assn. v. Richards, 165 Neb. 80, the court
said (p. 93):
. .
. As said in Opinion 49, of the Committee on Professional Ethics
and Grievances of the American Bar Association, page 134:
"An
attorney should not only avoid impropriety but should avoid the
appearance of impropriety." . . .
In Wise,
Legal Ethics, Second Edition, 1970, it is said (pp. 256, 273):
. .
. [I]f there is the slightest doubt as to whether a proposed representation
involves a conflict of interest between two clients, or between
a new client and a former client, or may encompass the use of special
knowledge or information obtained through service of another client
or while in public office, or necessitates a conflict between the
interests of a present or former client and those of the attorney,
the doubt can best be resolved by Matthew VI, 24: "No man can
serve two masters." . . .
* *
*
As was
said at the outset "No man can serve two masters". If
there is the slightest doubt as to whether or not the acceptance
of professional employment will involve a conflict between the interests
of any client and that of the attorney, or may require the use of
information obtained through the service of another client, the
employment should be refused.
This
opinion is limited to the facts presented here. The ward never discharged
the attorney and is now unable to do so. The daughter of the ward
was the petitioner in the guardianship proceeding and is now the
petitioner in the removal proceeding. The present issue was one
of the issues in the guardianship proceedings. The guardian of the
person may in fact be insane, otherwise incapable of discharging
his trust, or evidently unsuitable. If the attorney accepts the
employment, he must zealously represent the guardian, Canon 7, Code
of Professional Responsibility, which might be a disservice to the
ward who never discharged him.
There
appear to be substantial reasons why there will be an appearance
of impropriety if the employment is accepted, and, indeed, something
more than the "slightest doubt" of which Wise speaks.
71-5
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