Ethics Opinion 1978-1

I
QUESTION PRESENTED

A. May an attorney pursue aspects of a litigation which in his judgment would be advantageous to his client notwithstanding that the client has expressly directed that he not pursue those aspects.

B. May an attorney initiate, or cause to be initiated, conservatorship proceedings for his own client when, in his judgment, the client is no longer competent.

II
SUMMARY

A. The attorney should not ignore, nor overrule, the express directions of his client regarding the management of the client's suit. Should the client insist upon a course of conduct contrary to the judgment of the attorney, the attorney may withdraw from the client's employment.

B. Since the attorney could not either initiate the conservatorship proceedings, nor cause them to be initiated by other individuals, without revealing the confidences of the client, the attorney could not initiate conservatorship proceedings. Moreover, were such proceedings initiated, the attorney could represent only the client in such proceedings and thus would be in a position of possibly arguing against a conservatorship which he had initiated.

III
ANALYSIS

A. Conflicts between the attorney and the client regarding the direction of the case.

Canon 7 of the Code of Professional Responsibility provides "A lawyer should represent a client zealously within the bounds of the law." In interpreting that canon, paragraph EC 7-7 provides in part:

In certain areas of legal representation not affecting the merits of the cause or substantially prejudicing the rights of a client, a lawyer is entitled to make decisions on his own. But otherwise, the authority to make decisions is exclusively that of the client and, if made within the framework of the law, such decisions are binding on his lawyer. As typical examples in civil cases, it is for the client to decide whether he will accept the settlement offer or whether he will waive his right to plead an affirmative defense. [Emphasis supplied]

Paragraph EC 7-8 provides in part:

In the final analysis, however, the lawyer should always remember that the decision whether to forego legally available objectives or methods because of nonlegal factors is ultimately for the client and not for himself. In the event that the client in a nonjudicatory matter insists upon a course of conduct that is contrary to the judgment and advice of the lawyer but not prohibited by Disciplinary Rules, the lawyer may withdraw from the employment. [Emphasis supplied]

Paragraph EC 7-9 provides in part:

In the exercise of his professional judgment on those decisions which are for his determination in the handling of a legal matter, a lawyer should always act in a manner consistent with the best interests of his client.

Paragraph EC 7-11 provides:

The responsibilities of a lawyer may vary according to the intelligence, experience, mental condition or age of a client, the obligation of a public officer, or the nature of a particular proceeding. Examples include the representation of an illiterate or an incompetent, service as a public prosecutor or other government lawyer, and appearances before administrative and legislative bodies.

Paragraph EC 7-12 provides in part as follows:

Any mental or physical condition of a client that renders him incapable of making a considered judgment on his own behalf casts additional responsibilities upon his lawyer . . . . If a client under disability has no legal representative, his lawyer may be compelled in court proceedings to make decisions on behalf of the client. If the client is capable of understanding the matter in question or contributing to the advancement of his interests, regardless of whether he is legally disqualified from performing certain acts, the lawyer should obtain from him all possible aid. If the disability of a client and the lack of a legal representative has compelled the lawyer to make decisions for his client, the lawyer should consider all the circumstances then prevailing and act with care to safeguard in advance the interest of his client. [Emphasis supplied]

Tables of parallel citations, contained in 1 Informal Ethics Opinions, Committee on Ethics and Professional Responsibility, American Bar Association, suggest that Canons 7, 8, 9 and 44 of the Canons of Professional Ethics were the predecessors of Paragraphs EC 7-8 and 9. The parallel tables suggest that there were no pre-existing provisions relating to Paragraphs EC 7-11 and 12.

Canon 7 provided:

"When lawyers jointly associated in a cause cannot agree as to any manner vital to the interest of the client, the conflicting opinion should be frankly stated to him for his final determination. His decision should be accepted unless the nature of the difference makes it impracticable for the lawyer whose judgment has been overruled to cooperate effectively. In this event it is his duty to ask the client to relieve him."

The other provisions referred to by the parallel tables are not of any assistance in this matter.

Although there do not appear to have been any formal or informal opinions rendered at either the state or national level on exactly this question, at least one informal opinion in the area of a juvenile representation does provide some guidance. In Informal Opinion No. 1160 (1971) of the Committee on Ethics and Professional Responsibility, American Bar Association, the question of the representation of minors before juvenile courts was involved. There, clarification of the attorney's duties and obligations was sought; specifically whether the attorney should simply attempt to free all his clients, or should he, in appropriate cases, refer his clients to the professional counselling available through the court. After discussing both Canon 6 and Paragraphs EC 7-11 and 12, the opinion provides:

It appears that the lawyer's primary duty of loyalty to his client must continue, even in the Juvenile Courts, to lead the lawyer to attempt to obtain full exoneration for his clients . . . . 2 Comm. on Ethics and Prof. Resp., at p. 383.

It appears that the committee is suggesting that the attorney should attempt to obtain a result which would satisfy his client even though, in the attorney's own opinion, it would best for the client to remain within the juvenile court's jurisdiction.

EC 7-8 is clearly a recodification of the old Canon 7 which made the client the final authority on the management of the case. Further, the emphasized language from EC 7-12, quoted above, suggests that, even if the client is under a disability, if he is capable of both understanding that which is explained to him and making a decision based upon that information, the attorney should honor that decision. Accordingly, in the instant case, it appears the attorney should honor his client's instructions and not advance any aspects of the case which the client has directed not be advanced.

B. Initiating incompetency proceedings against a client.

Canon 4 of the Code of Professional Responsibility provides "A lawyer should preserve the confidences and secrets of a client."

Business and Professions Code § 6068(e) provides that the attorney has a duty "to maintain inviolate the confidence, and at every peril to himself, to preserve the secrets of his client."

Formal Opinion No. 37 (1976) of the Committee on Professional Ethics of the State Bar of California discussed the impact of these provisions on the question of whether an attorney, representing one party in a dissolution, could ethically notify the court of conflicting interests between his own client and a child and suggest that the court appoint an attorney for the child. Since the committee felt that information regarding the conflicting interests could have only arisen through communications between the attorney and his client, such information would be a "confidence" of the client. Thus, any suggestion to the court regarding the child would be tantamount to a prohibited disclosure of the confidences of the client. The committee also suggested that such disclosure could be contrary to Canon 7 regarding the zealous representation of a client.

Another aspect of this problem is highlighted by Opinion No. 138 (1941) of the Los Angeles County Bar Association. That opinion involved an attorney who had represented an elderly widow for many years and who had become convinced, because of her recent actions, that she did not have the mental ability to properly handle her affairs. Her family asked the attorney to institute proceedings for the appointment of a guardian. The opinion provided that, since such proceedings would be adversary in nature and the widow could oppose the application, the attorney under those circumstances would be violating then Canon 6 of the Canons of Professional Ethics. Canon 6, involving conflicts of interest, has been encompassed in the present Code of Professional Responsibility as part of Canon 5, which provides: " A lawyer should exercise independent professional judgment on behalf of a client."

A second opinion by the Los Angeles County Bar Association also provides some guidance on this point. Opinion No. 229 (1955) involved a situation where an attorney provided that the client's estate should go in part to a brother but with the larger remainder being left to charity. The brother had since been appointed the guardian of the client. The attorney requested an opinion as to whether he could reveal the contents of the will to the brother-guardian and whether he should retain the will in his possession. The committee was of the opinion that the attorney should retain the will in safe keeping and should not reveal its contents to the brother. Its reason for both opinions was that the will was a "confidence" of the client and Business and Professions Code § 6068(e) required that such confidences be preserved.

Accordingly, based upon the above opinions, it appears that the attorney in this matter should not initiate conservatorship proceedings in behalf of his client.

This opinion is advisory only. It is not binding upon the State Bar, the Board of Governors, its agents or employees.

 

Disclaimer: This opinion was issued by the Legal Ethics Committee of the San Diego County Bar Association. It is advisory only and is not binding upon any member of the SDCBA, any other member of the State Bar of California, the State Bar of California or its Board of Governors, or any persons or tribunals charged with regulatory responsibilities. The SDCBA, its officers, directors, agents, and the Legal Ethics Committee members assume no responsibility or liability in rendering this opinion.