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Rules Barring Dual Representation of Ward And Would-Be Guardian Are Clear Enough

Wednesday, April 4, 2012
By Joan C. Rogers

The ethics rules on representing clients with diminished capacity and on multiple representation are not unconstitutionally vague as applied to a lawyer who improperly represented both an elderly client and a person who was seeking to be appointed as the client's guardian, the Ohio Supreme Court declared March 8 (Dayton Bar Ass'n v. Parisi, Ohio, No. 2011-0340, 3/8/12).

Ohio Rule of Professional Conduct 1.14 clearly delineates the conduct permitted when a lawyer represents a client with diminished capacity and does not alter the prohibition against engaging in conflicts of interest under Rule 1.7, the court stated in a per curiam opinion. It imposed a stayed six-month suspension on the lawyer as a disciplinary sanction.

Guardianship Proceeding
When Georgianna I. Parisi began representing Sylvia Demming, a 93-year-old woman who claimed she was being held against her will in a nursing home, Parisi became concerned about Demming's financial welfare and applied for guardianship in Ohio county probate court. Along with the application, Parisi submitted a physician's evaluation diagnosing Demming with dementia.

Seven weeks later, Parisi had Demming sign a durable power of attorney designating Parisi as her attorney in fact. The next month, Parisi withdrew her own application and filed a separate application for guardianship on behalf of Demming's niece.

The probate court later removed Parisi as counsel for both women, and Parisi returned $18,000 that she had paid herself for legal services without the court's prior approval.

Inherent Conflict
The supreme court agreed with the disciplinary board that by representing both Demming and Demming's niece in the guardianship proceeding, Parisi violated Ohio Rule of Professional Conduct 1.7(a)(2), which provides that a lawyer's continued representation of a client creates a conflict of interest if there is a substantial risk that the lawyer's ability to represent the client will be materially limited by the lawyer's responsibilities to another client.

The court stated that “the far-reaching and life-altering consequences of an incompetency determination … create an inherent conflict between the proposed ward and the applicant for guardianship, even if guardianship is ultimately in the proposed ward's best interest.”

Parisi failed to convince the court that Rule 1.7 permits lawyers to represent both a proposed ward and the applicant for guardianship because Rule 1.14 allows lawyers to take protective action when a client with diminished capacity is at risk of harm.

The court pointed out that Rule 1.14(a) directs a lawyer representing a client with diminished capacity to maintain a normal attorney-client with the client as far as is reasonably possible. It also noted that Comment [9] to Rule 1.14 states that a lawyer who is taking action on behalf of a person with seriously diminished capacity in an exigent situation “has the same duties under these rules as the lawyer would have with respect to a client.”

Thus, the court said, the emergency provisions of Rule 1.14 do not entirely abrogate a lawyer's duties to the client under professional conduct rules, and “when taking actions authorized by Prof. Cond. R. 1.14, the lawyer must still determine whether the representation of one client will be directly adverse to the other and whether there is a substantial risk that the lawyer's ability to consider, recommend, or carry out an appropriate course of action for one client will be materially limited by the lawyer's responsibilities to another client.”

The court agreed with ABA Formal Ethics Op. 96-404 (1996) that Rule 1.14 does not authorize a lawyer to represent a third party in seeking to have a guardian appointed for his client, and that such a representation would necessarily be regarded as “adverse” to the client and prohibited by Rule 1.7, even if the lawyer sincerely believes that the dual representation would be in the client's best interests.

Not Unconstitutionally Vague
Parisi contended that this interpretation of the rules could not constitutionally be applied to her because she had no notice that her conduct was unethical.

The court found no merit to that argument. It pointed out that Rule 1.14 expressly permits a lawyer to consult with persons who may take action to protect the client, to seek the appointment of a guardian in some circumstances, and to reveal client confidences to the extent reasonably necessary to protect the client's interests. But the rule does not authorize an attorney to represent third parties in a guardianship proceeding against a client or otherwise represent multiple clients who have conflicting interests, the court pointed out.

Because Rule 1.14 clearly delineates the conduct permitted when a lawyer represents a client with diminished capacity and does not purport to alter the prohibitions in Rule 1.7, Parisi's constitutional challenge must be rejected, the court concluded.

Six-Month Suspension, Stayed
The court also found that Parisi engaged in conduct prejudicial to the administration of justice by paying her own fees during Demming's guardianship proceeding, and charged a clearly excessive fee for nonlegal services that she provided to another elderly client.

The court accepted the board's recommended sanction of a six-month suspension, all stayed on condition that Parisi commit no further misconduct. It pointed out that her conduct did not involve any fraud or deceit, and she not only returned the money she paid herself in Demming's case but also reached a settlement with the other client's heirs. The hearing panel believed that the lawyer will not repeat her transgressions, the court noted.

Justice Robert R. Cupp concurred in the decision of the court, but said he would add as a condition of the stayed suspension that Parisi submit to the monitoring of her practice during the entire term of the stayed suspension.

Chief Justice Maureen O'Connor dissented, saying she would accept the bar association's recommended sanction of an indefinite suspension. Justice Judith Ann Lanzinger also dissented, noting that she would impose a one-year suspension with six months stayed.

Gary C. Schaengold, Law Office of Gary Schaengold, Dayton, Ohio, and Mark A. Tuss, Popp & Tuss, Dayton, represented the bar association. Konrad Kuczak, Dayton, and Dianna M. Anelli, Anelli Holford, Dublin, Ohio, represented Parisi.

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