Opinion 94-18
(August 1994)

You have asked for an opinion on the following facts: You represent three minor plaintiffs and their mother's estate in a serious personal injury claim. The accident in which they were injured also resulted in their mother's death, and the children's father refused to pursue the claim. As such, the children's maternal grandparents have been appointed guardians ad litem as well as the administrators of the mother's estate, and they hired you to represent the plaintiffs.

You indicate that you are the third attorney in less than three years who has represented the estate and handled this matter on behalf of the children. The grandparents have been uncooperative in their capacity as both guardians ad litem as well as administrators of the estate. As the case has progressed, there have been increasing conflicts between what you think is best for your clients in your capacity as the attorney for the children and the estate, and with the specific wishes and directives that you have been given by the grandparents in both their capacities as guardians ad litem and administrators of the estate. You indicate that many of these conflicts arise from a fundamental antagonism and hostility between the grandparents and the children's father and the fact that the father will not allow the grandparents to visit with the children. The grandparents have been uncooperative in the handling of the case, as they have refused to sign medical authorizations to enable you to get medical documentation of the children's condition, as well as their refusal to sign verifications to pleadings which needed to be filed, without indication to you as to why they were refusing. In addition, against your advice, they have been communicating directly with other parties and their counsels in the case.

Most recently, they charged an attorney in the case, who was representing the estate as an additional defendant, with an unexplained conflict of interest, which resulted in the immediate withdrawal of that attorney. You feel that this development will significantly hurt the case, as the attorney who withdrew would have commanded significant respect before the Court where you were to try the case.

You have also now been contacted by the new attorney who is representing the estate as an additional defendant. This attorney feels that these grandparents are in a position of conflict insofar as they are the guardians ad litem of the children, and must, therefore, advocate and pursue their damage claims to the fullest extent, as well as being administrators of the Estate and thus having to assist him in the preparation of a defense of the Estate which includes attempts at limiting and reducing the damage claims of the children. You happen to agree with this analysis of the situation.

Finally, you have discovered that there is a related insurance claim to be brought on behalf of each of the three minors, all of whom have catastrophic injuries, which potentially could be worth $250,000 for each of them. Despite your efforts to get the grandparents to agree to filing such a claim, they have to date refused to do so because they think there is only a limited chance of succeeding, and you believe the children will lose their rights to pursue this claim, if no action is taken in the immediate future.
 
You state that you believe your true clients are the children and the estate, and that you are compelled to act in their best interests. Accordingly, you would like to file a petition to remove the grandparents as administrators of the estate and as guardians ad litem, and obtain separate court-appointed representatives of these parties. It is not your intention to divulge any privileged confidences in so doing.

Your inquiry poses two separate questions which will be addressed separately in this opinion.
Removal of Grandparents as Guardians Ad Litem
 
It is clear from the facts that without action by you to remove the grandparents as guardians ad litem of the children, that the children will be left with virtually no effective representation. A guardian ad litem is appointed solely to represent the interests of the litigant who is a minor, and regardless of other considerations, that guardian, or in this case guardians, must be removed if they are not acting in the best interests of the children. Pennsylvania Rule of Professional Conduce 1.14(b) provides that, a lawyer may seek the appointment of a guardian or take other protective action (emphasis added) with respect to a client, only when the lawyer reasonably believes that the client cannot adequately act in the client's own interest. This reasoning also applies in this situation, where there is an existing guardian who cannot or will not adequately act in the clients' best interests. The Committee believes that you would be violating your duty to your minor clients under Rule 1.14 were you not to file a petition for the immediate removal of the grandparents as guardians ad litem of the children.
As regards issues of client confidentiality, it is the Committee's opinion that you may reveal such information necessary in removing the grandparents as guardians ad litem because Pennsylvania Rule of Professional Conduct 1.6a, which allows you to make disclosures that are impliedly authorized in order to carry out the representation... Thus, you can make disclosures necessary to effectuate their removal as guardians in your capacity as the attorney representing the minor children.

Removal of the Grandparents as Administrator of the Mother's Estate
 
There is an open question under the substantive law of Pennsylvania as to whether an attorney in handling an estate, represents the administrators or executors of an estate, or the actual estate itself, which might also encompass the legatees. However, in the case at hand, you are not functioning as an attorney hired to handle an estate would function. There is no indication that you are involved in advising the grandparents as administrators regarding debts of the estate, and/or the collection of or liquidation and distribution of the estate assets other than the recovery in this negligence action. In your own words, the grandparents were appointed as Guardians Ad Litem and as Administrators of the Estate, and they retained me to litigate this case on behalf of the plaintiffs (emphasis added). As such, under these particularly special circumstances, the Committee feels it appropriate that you consider your client as the estate, not the grandparents. Given this, it is clear that your duty of diligence as provided for in Pennsylvania Rule of Professional Conduct 1.3 requires you to take whatever protective action you have to in order to protect the assets of the estate, which here would mean filing a petition to remove the grandparents as administrators, not just because of the conflict of interest accurately pointed out by the attorney representing the estate as defendant, but also because of the grandparents' pattern of refusal to conduct themselves in a manner consistent with their fiduciary responsibilities as administrators.

   

The Philadelphia Bar Association's Professional Guidance Committee provides, upon request, advice for lawyers facing or anticipating facing ethical dilemmas. Advice is based on the consideration of the facts of the particular inquirer's situation and the Rules of Professional Conduct as promulgated by the Supreme Court of Pennsylvania. The Committee's opinions are advisory only and are based upon the facts set forth. The opinions are not binding upon the Disciplinary Board of the Supreme Court of Pennsylvania or any other Court. They carry only such weight as an appropriate reviewing authority may choose to give it.