2004 Fall, 6. Blurred Boundaries and Attorneys' Duty of Loyalty: In Re Guardianship of Henderson.

AuthorBy Ambre Brandis

New Hampshire Bar Journal

2004.

2004 Fall, 6.

Blurred Boundaries and Attorneys' Duty of Loyalty: In Re Guardianship of Henderson

New Hampshire Bar Journal Fall 2004, Volume 45, Number 3 Blurred Boundaries and Attorneys' Duty of Loyalty: In Re Guardianship of Henderson By Ambre Brandis I. INTRODUCTION

The New Hampshire Supreme Court recently ruled in In Re Guardianship of Jason Henderson that counsel for a proposed ward did not properly represent him, reversing the judgment appointing a guardian. The court-appointed attorney improperly took on the role of "guardian ad litem" when she reported to the court that the guardianship would be "reasonable."1 This denied Jason Henderson of "the full assistance of legal counsel to attack the guardianship petition."2

An attorney was appointed to represent Jason by the probate court when Phyllis Henderson, his mother, filed a petition for guardianship over her thirty-one-year-old son. The attorney was appointed "to represent Jason's interests"3 in the proceeding. During his interview with the court appointed counsel, Jason challenged the accuracy of the information in the guardianship petition. Following the interview, counsel submitted a report to the probate court saying, "it is impossible to know whether or not Jason is incompetent," and went as far as to suggest that appointing Jason's mother as his guardian would be "reasonable." The court appointed Jason's mother as his guardian.

On appeal, other counsel represented Jason. They argued that Jason was deprived of effective counsel because his prior attorney acted as guardian ad litem and not legal counsel.

The Supreme Court of New Hampshire reversed. They held that Jason was deprived of full assistance of legal counsel to represent his interests in the guardianship proceeding. The court held that Jason's court-appointed lawyer "blurred the boundaries" between the roles of legal counsel and guardian ad litem. The court wrote: The right to legal counsel for any person for whom a guardianship is sought "shall be absolute and unconditional."4 Even when an attorney is appointed to rep resent an allegedly incapacitated person, "the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client"5 At a minimum, the lawyer must "develop a strategy, in collaboration with the client, for solving legal problems of the client."6

Dealing with an allegedly impaired client presents problems for which there are often not clear guidelines. Attorneys must be wary of these uncertainties and particularly the blurred boundaries between the roles of legal counsel and guardian ad litem. This article discusses this brief but important case. First, it will analyze current New Hampshire law and Rules of Professional Responsibility and the latent ambiguities only partly resolved by the Henderson holding. Second, it will briefly consider whether the current revised A.B.A. Model Rule would clarify the duties of a lawyer in guardianship or commitment proceedings. Finally it will suggest that most decided cases, including Henderson, correctly treat such proceedings as special cases requiring stricter rules than either the New Hampshire or current A.B.A. Rules.

II. GUARDIANSHIP LAW AND N.H. CODE OF PROFESSIONAL CONDUCT

Sometimes people are (or appear to be) unable to make decisions or resolve problems on their own. The law recognizes varying standards of incapacity for various purposes.7 Persons of very limited capacity may marry or make valid wills8 or be tried for a crime,9 and may do so despite the appointment of a guardian.10 When there is a risk of harm due to an inability to manage physical needs or financial affairs, courts have traditionally appointed a guardian,11 a concept that has been traced back to ancient Rome.12

In the United States, guardianship provisions vary. Socio-economic forces, including increases in life expectancy as well as changes in family structure and transmission of wealth, have influenced and continue to influence guardianship laws. 13 Over the last decade, many jurisdictions reformed their laws to protect individuals subject to competency proceedings.14 For example, in New Hampshire, the relevant definition of incapacity requires finding a likelihood of "substantial harm,"15 but to appoint a guardian the court must also find that guardianship is necessary, there is no alternative, and "guardianship is the least restrictive form of intervention."16

Notwithstanding modern reforms, guardianship is a grave restriction of personal liberty requiring proof beyond a reasonable doubt in an adversary proceeding.17 To make this meaningful, the legislature has provided for an unqualified right to counsel.

In Henderson the court appointed an attorney to represent Jason but not a guardian ad litem. Under RSA 464-A: 6, the right to legal counsel for any person for whom guardianship is sought "shall be absolute and unconditional." If the proposed ward does not have his own counsel the court will appoint counsel for him immediately upon filing a petition for guardianship of that person. Despite the possible incapacity of the proposed ward to contract for representation, the Rules of Professional Conduct apply and expressly contemplate "as far as reasonably possible - a normal client-lawyer relationship."18

A court may also appoint a guardian ad litem to represent the best interest or rights of a minor or an incapacitated person in the case. The guardian must be competent and disinterested.19 While often members of the Bar...

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