by Sam Skolnik
Several states are weighing an ABA-led push to encourage attorneys
handling intellectually disabled and elderly clients to consider
alternatives to legal guardianships.
The American Bar Association House of Delegates earlier this year revised
its model rule of professional conduct dealing with how attorneys
represent clients with limited decision-making skills, following years
of behind-the-scenes work from advocates concerned that the legal
profession has defaulted to guardianship—also known as
conservatorship—as a first option.
Reformers say the changes to
Rule 1.14—which outline guidance for lawyers representing clients with
what the ABA used to call “diminished” mental capacity—may be vital to
fixing the guardianship system. A 2023 Bloomberg Law investigative
series surfaced several instances of abusive guardianships and a system buckling due to overworked attorneys and lax oversight.
Anthony
Palmieri, a former president of the National Guardianship Association,
said lawyers serve as a “pipeline” for an adult guardianship system that
often allows bad actors to victimize highly vulnerable clients.
“It’s
more aspirational than operational,” said Palmieri, deputy inspector
general of the Palm Beach County, Fla., Clerk of the Circuit Court &
Comptroller, of the ABA’s model rule revision. However, given the
likelihood that states will adopt their own versions of the revised
professional conduct rule, making the changes legally binding, it’s
“potentially a huge step forward,” he said.
The initiative has
built momentum among state bar associates since the ABA’s model rule
changes in February. Michigan is already moving to incorporate the
language into its ethics code and bar officials in Illinois, Virginia,
Florida, Washington, Utah, and Washington D.C. are exploring making
changes.
But there are some skeptics who doubt the likelihood that ethics rule changes could have a major practical impact.
“While
I appreciate what the ABA is doing, there is no back-stop available
when a predatory lawyer targets your family,” said Rick Black, executive
director of the Center for Estate Administration Reform, a nonprofit
pushing for more transparency in guardianship cases.
Given that
the guardianship system is an entrenched process that’s “increasingly
profitable” for lawyers, legal-advisory reforms may only have the effect
of “putting a Band-Aid on a gunshot wound to the head,” he said.
Michigan Moves First
The
State Bar of Michigan’s representative assembly unanimously supported
adopting the ABA’s new language for Rule 1.14, which confirmed that
clients who have surrogate decision-makers aiding them because of
difficulties making or communicating decisions also have due process
right of access to counsel. It is on track to be the second state to
update its 1.14 guidance.
The key is providing lawyers with the
guidance they need so they’re not encouraged to pursue guardianship, a
“very drastic” approach to protective action in such cases, said
Syracuse University College of Law professor Nina Kohn.
The proposed rule—which
needs to be approved by the Supreme Court of Michigan—also stipulates
that the state’s attorneys “must look to the client, and not to family
members or other persons” to make decisions on the client’s behalf. Alternatives to guardianship can include healthcare surrogacy, durable powers of attorney, living wills, and community support.
Reform
advocates in Michigan had been watching the ABA “very, very closely,”
so that they could move as quickly as possible to adopt their own rule
change as soon as the ABA acted, said Nicole Shannon of the Michigan
Elder Justice Initiative.
Katie Stanley, a lawyer with Legal
Services of Eastern Michigan who introduced the resolution, said she
believes the rule change will spur a “strong, human impact by providing
more clarity and dignity” to respondents in guardianship cases.
The
District of Columbia Bar’s rules review committee recently referred the
matter to a subcommittee for study and drafting, said Hope C. Todd, who
oversees the legal ethics program at the D.C. Bar. It’s “likely” that
the Supreme Court of Illinois, through several of its committees, is
reviewing the ABA model rule revisions “for possible adoption,” said
Charles J. Northrup, the Illinois State Bar Association’s general
counsel, and the Virginia State Bar is accepting comments on the topic.
The
Florida Bar also will be forwarding the revised model rule 1.14 to its
relevant committees for consideration, and the issue is on the radar of
the Washington and Utah bars, spokespeople in those states said.
Maryland’s Example
The ABA model rule was inspired by ethics changes Maryland put on the books in 2023, which guardianship law practitioners in the state say have helped their clients.
The
rule lets the state’s lawyers know that guardianship “shouldn’t be
their first pivot,” said Megan Rusciano, a managing attorney with
Disability Rights Maryland.
It’s also helped inform the state’s
bench and bar, by showing them “in the black and white letter of the law
what my job is,” said Barrett King of King Hall LLC.
King
estimates that guardianship cases make up about 75% of his workload, and
a key part of his representation is to advocate for less restrictive
alternatives to guardianship so it’s maintained as a “last resort.”
King noted the important role played by a 2000 state court decision
which made it clear that the attorney’s role in representing such
clients is to “explain the proceedings to his client and advise him of
his rights, keep his confidences, advocate his position, and protect his
interests,” especially when the client “faces significant and usually
permanent loss of his basic rights and liberties.”
“Fundamentally, there’s just so much at stake,” said Rusciano.
Full Article & Source:
ABA, State Bars Urging Attorneys to Pivot From Guardianships