Bar Counsel Notes: Conflict/successive representative

Lawyer represents and has represented a client who now has dementia. The client never executed a power of attorney, but did execute a Will. The dementia is severe and her adult children have asked Lawyer to commence an action to allow one of the children to become guardian and conservator. Lawyer has no reason to distrust the adult children, nor is there any reason to question the incapacity of Lawyer's client. However, she wonders if it may be a conflict of interest to now represent the adult children in a proceeding alleging her client's incapacity.

By representing the adult children of an alleged incapacitated person in a proceeding for guardian/conservatorship, Lawyer runs a risk of offending M. Bar R. 3.4(b)(1) concerning representation that would be materially and adversely affected by the Lawyer's duties to another current or former client. The information that Lawyer has about her client would be relevant in the probate proceedings. Lawyer's representation of other clients now adverse to her current client, cannot be justified solely because it is objectively in her client's best interest. Thus, Lawyer should decline to represent the adult children in this protective proceeding.

*Disclaimer: The Informal Ethics Advisory Notes from Bar Counsel are intended as outreach by the office of Bar Counsel for the use and benefit of the Maine bar. These scenarios are drawn from actual telephone calls received by the attorneys in the office of Bar Counsel in the course of providing informal advice on the Code of Professional Responsibility, known as Bar Counsel's "Ethics Hotline." The particular advice in each case is limited with reference to the particular factual situation related by the inquiring attorney who must be inquiring about his or her own conduct or the conduct of a member of his or her firm. We do not provide any advice to one attorney about the conduct of another attorney unless they are members of the same law firm. In the telephone opinions, we usually explore and discuss additional factual variables. However, I have attempted to pare down these factual scenarios to make the email newsletter more readable and useful in a general sense. Obviously, that creates the risk that slight variations on the facts, to a learned reader, may give rise to a different analysis and conclusion.