(June 2002)
The inquirer advises that he is, "an attorney filing a petition for the appointment of a guardian of the estate and of the person for an alleged incapacitated person. The Petitioner is the paternal grandmother. The alleged incapacitated person is her 29 year old granddaughter who, as a result of an accident at the age of 15, is in deteriorating physical and mental health. Over the years, the Petitioner (grandmother) and my mother have established a strong friendship, which has led the grandmother, now 93 years old, to nominate my mother as the granddaughter's guardian to ensure that the granddaughter is provided for in the event of the Petitioner's death. The granddaughter has no living parents, and one half-brother who does not keep in contact with her. Some nine years ago, the granddaughter and the grandmother both made wills wherein my mother is a beneficiary." The inquirer asks if, "this fact present[s] a conflict so as to cause the court to disapprove of my mother as guardian-nominee?"
Whether the court will disapprove of the inquirer's mother as nominee for guardian is actually an issue of substantive law, and thus outside of the Committee's charge which is limited to ethical inquiries. However, there are clearly several ethical issues that are raised by the scenario, and this opinion will address those.
Pennsylvania Rule of Professional Conduct ("The Rules") 1.7(b) provides that, "A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer's responsibilities to another client or to a third person, or by the lawyer's own interests, unless: (1) the lawyer reasonably believes the representation will not be adversely affected; and (2) the client consents after full disclosure and consultation--" Since the lawyer represents the paternal grandmother, and the lawyer has an assumed interest in and loyalty to his mother's interests, there is an inherent conflict of interest which must be considered. Obviously should the granddaughter, along with the inquirer's mother be a beneficiary under the grandmother's will, funds from the grandmother's estate would augment whatever the granddaughter's estate is, should the grandmother predecease the granddaughter. The mother's interests as beneficiary of the granddaughter's will could be in direct conflict with the mother's obligation as guardian of the granddaughter. It could be in the granddaughter's best interests to take whatever assets are in the estate to provide all the necessary funds for her proper support and maintenance. It is also more than conceivable that this would dissipate the estate, thus leaving little or nothing for the mother as beneficiary under the will. Considering this, the inquirer must ascertain that he can still zealously represent the paternal grandmother, and that his loyalty to his mother will not have an adverse affect on that representation. Providing the inquirer concludes that he can have undivided loyalty to the grandmother, he must obtain her consent to allow his representation after he has fully disclosed and discussed his conflict of interest regarding his mother with the paternal grandmother.
Rule 3.3 (a) (1) states that, "A lawyer shall not knowingly: (1) make a false statement of material fact or law to a tribunal." The Comment to that Rule indicates in part that, "There are circumstances where failure to make a disclosure is the equivalent of an affirmative misrepresentation." In order to avoid a violation of this Rule, the Committee believes that the inquirer must disclose to the Court that the inquirer's mother, the proposed guardian, is a beneficiary of both the Petitioner's and the granddaughter's wills, thereby allowing the court to make a decision on the grandmother's petition with full knowledge of all the circumstances present in the situation.