CHAPTER 6 - 6-3 LAWYERS ACTING AS CONSERVATORS

• Jurisdiction: United States

6-3 Lawyers Acting as Conservators

There is disagreement as to how far conservators may go in advancing their ideas of what is best for their wards, especially when their actions contradict the ward's expressed wishes.⁵⁷ This has led to grievances against attorney conservators. Attorneys serving as conservators are officers of the court and are not in an attorney-client relationship with their ward.⁵⁸ They can be sued civilly by third parties to whom they are found to owe a duty by virtue of their status as conservator, such as nursing homes for failure to make application for benefits to pay for the care of their wards.⁵⁹ But because they are not acting as attorneys when acting as conservators, they are not liable for violations of the rules of professional conduct. Thus, a portion of a grievance against a conservator for violations of Rules 1.1, 1.2, 1.3 and 1.4 will be dismissed as the Rule 1 regime requires the presence of an attorney-client relationship.⁶⁰ While there are some decisions finding attorney-conservators liable for Rule 1 violations, the Grievance Committee's recent jurisprudence makes it clear that it does not view a conservator relationship as a client relationship.⁶¹

While Gross v. Rell is silent as to a lawyer-conservator's ethical, as opposed to legal, jeopardy, it is clear that though conservators enjoy absolute quasi-judicial immunity as do prosecutors⁶² and guardians ad litem⁶³ they remain liable for ethical violations.⁶⁴ In one matter, an attorney-trustee of a ward in a probate matter was reprimanded for a violation of Rules 3.3(a)(1) and 8.4(3) when she filed a false and inaccurate accounting with the probate court.⁶⁵ In another, an attorney-conservator was reprimanded for violations of Rule 1.15(b) and 8.4(3) and (4) for mismanagement of a ward's funds.⁶⁶ A lawyer was reprimanded for violations of Rule 3.3(a)(1) and 8.4(3) and (4) where, when acting as a conservator, he established several trusts, named himself as trustee, and transferred his ward's assets to the trusts, effectively vitiating her estate plan. The Grievance Committee imposed discipline both the conduct, which it deemed to be fraudulent and for testifying falsely about it.⁶⁷

In another matter, an attorney-conservator was ordered presented for violations of Rules 1.15(d)(2) and 8.4(1) and (3) for conduct as a conservator.⁶⁸ In a case where the respondent attorney had acted as both attorney for the ward and as temporary conservator, a reviewing committee found...