MARCH 8, 2010 VOLUME 17, NUMBER 8
{Ed. Note: this week’s Elder Law Issues was written for us by our friend, and nationally-known elder law authority, Prof. Rebecca C. Morgan. Prof. Morgan holds the Boston Asset Management Chair in Elder Law at the Stetson University College of Law, and she is the Director of Stetson’s Center for Excellence in Elder Law.]
The ethical rules for attorneys (the Rules of Professional Conduct) impose a number of duties upon lawyers in their dealings with clients. Sometimes the rules require an attorney to take protective action on behalf of a client who has diminished capacity, even when the client disagrees with the attorney doing so.
Janet Clark suffered a traumatic brain injury as a result of a serious car accident. She was subsequently determined to be incapacitated and a North Carolina probate judge appointed a guardian of the person and property for her. A little over eighteen months after her accident her husband petitioned to end her guardianship, arguing that she had been returned to competence.
In the meantime a personal injury case filed on her behalf settled for $4,000,000, and after the payment costs and fees the balance was to be paid to the trustee of a special needs trust to be established by the attorney’s firm. The attorney had earlier created a pooled special needs trust, and he sat on its Board of Directors. He used that trust for Ms. Clark’s settlement funds.
During the case the attorney had come to the conclusion that the husband was attempting to influence Ms. Clark while she was incompetent. The attorney concluded that the pooled SNT would be the best way to ensure that funds would be both protected and available for Ms. Clark’s future needs. Because of this concern, the attorney opposed the proceeding filed by Mr. Clark to terminate the guardianship, and he sought a new evaluation of Ms. Clark’s competency.
Ultimately Ms. Clark was restored to competency and motions were filed, included motions regarding attorney’s fees. The appellate court rejected the Clarks’ argument that it was wrong to award the fees, especially in light of the guardian’s and attorney’s opposition to efforts to end Ms. Clark’s guardianship. After reviewing state law the appellate court concluded that the attorney’s fees should be paid.
The appellate court noted that the facts supported the guardian’s concerns regarding efforts to end Ms. Clark’s guardianship. The trial judge had found that the attorney had a good faith belief that terminating Ms. Clark’s guardianship was not in her best interest and the attorney had a duty to “exercise his best judgment” which, according to the trial court, is exactly what he did.
The appellate court also upheld the trial court’s finding that there was no conflict of interest because the attorney had fully disclosed his relationship with the pooled trust. According to the court, the Clarks failed to prove that this relationship in any way adversely affected the attorney’s representation of Ms. Clark. In re Clark, February 2, 2010.
