Trusts and Estates

Ca. Trs. & Estates Quarterly 2021, Volume 27, Issue 1


By Ellen McKissock, Esq.*

Let’s hope that 2021 not only brings an end to a yearlong pandemic, but also might be the year that practitioners finally receive some guidance about handling ethical dilemmas that have plagued us for years. How should a practitioner deal with a client suffering from diminished capacity? Does court-appointed counsel for a conservatee serve the court, or owe the same duty of loyalty and confidentiality to the conservatee as an attorney does to any other client? The Executive Committee of the Trusts and Estates Section (TEXCOM) has addressed these types of issues over the years through proposed legislation, comments on rules and Quarterly articles. However, absent guidance under the existing rules or legislation changing them, practitioners struggle to properly serve their clients.

The new, fourth edition of TEXCOM’s Guide to the California Rules of Professional Conduct for Estate Planning, Trust and Probate Counsel (the "Guide")1 clearly states the rules that attorneys must follow in representing clients whose capacity has diminished over the course of representation. Confidentiality cannot be breached—not even to protect the client from third parties exerting undue influence. Counsel cannot violate the duty of loyalty to a client by telling family members of their concern, and certainly cannot petition to conserve their own client.

Some may recall that, in 2017, the Second Commission for the Revision of the Rules of Professional Conduct ("Second Commission") proposed a version of the American Bar Association Model Rule 1.14 to assist practitioners in dealing with clients with significantly diminished capacity. The California Supreme Court declined to adopt the proposed rule, without comment. Practitioners remained rudderless. The State Bar of California Committee on Professional Responsibility and Conduct ("COPRAC") has engaged in a deep and detailed analysis of the situations facing practitioners in its Proposed Formal Opinion Interim No. 13-0002 (Client with Diminished Capacity). The proposed opinion is available on the State Bar’s website2 and an interested reader can explore further and see what COPRAC is recommending in its own words. The opinion helps practitioners navigate the issues raised under the current law. TEXCOM appreciates the opportunity to provide input to the opinion. While the opinion cannot resolve the difficulties in representing a client with diminished capacity, it certainly provides much needed guidance and thought-provoking analysis that will greatly aid practitioners.

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