Ethics Opinion

Opinion 21-3

FLORIDA BAR ETHICS OPINION
OPINION 21-3
March 23, 2021
Advisory ethics opinions are not binding.
The obligations of a lawyer who has been appointed by a court to represent an alleged
incapacitated person in a petition for emergency temporary guardianship obligations under the
rules may be harmonized with statutory requirements even where the inquirer is unable to
communicate with the client, either by time constraints or court order. The lawyer must
investigate as reasonably practicable under the circumstances, cross examine the petitioner’s
witnesses, test the petitioner’s evidence, present any appropriate testimony or other evidence
found during investigation, ensure that the petitioner proves all essential elements of the
guardianship, protect the client’s procedural rights, and, if the hearing is held ex parte, that the
petitioner has met the burden of establishing the necessity of the ex parte proceeding under the
statute. The lawyer must then notify the client of the proceedings and their outcome.
RPC:
Florida Statutes:
Cases:

4-1.1, 4-1.2, 4-1.3, 4-1.4, 4-1.14
F.S. §744.3031(2)
Erlandsson v. Erlandsson, 296 So. 3d 431 (Fla. 4th DCA 2020).

The Committee gratefully acknowledges the assistance of the Real Property Probate and
Trust Law Section in responding to this inquiry.
A member of The Florida Bar has inquired about the inquirer’s ethical obligation when
appointed by a court to represent an alleged incapacitated person in a petition for emergency
temporary guardianship. The inquirer states that the alleged incapacitated person has due
process rights under both the state and federal constitution, including the right to testify, present
evidence, call witnesses, confront and cross-examine witnesses, and have the hearing either open
or closed. However, Florida Statutes §744.3031(2) allows the proceeding for emergency
temporary guardianship to be held ex parte on a showing that it is necessary to prevent
substantial harm to the alleged incapacitated person. The inquirer asks how to represent the
client in accord with the inquirer’s ethical obligations when a court has ordered that the hearing
be held ex parte or when a hearing is held before the inquirer has the ability to contact or
communicate with the alleged incapacitated person to whom the inquirer has been appointed to
represent.
Florida statutes provide that an “[a]ttorney for the alleged incapacitated person . . . shall
represent the expressed wishes of the alleged incapacitated person to the extent it is consistent
with the rules regulating The Florida Bar.” Fla. Stat. Ann. § 744.102 (West). Interpreting the
statute, Florida’s Fourth District Court of Appeals has determined that a court-appointed counsel
for the respondent is obligated to defend against a guardianship petition if the client opposes it,
even if the lawyer believes that a guardianship would be in the client's best interests. Erlandsson
v. Erlandsson, 296 So. 3d 431 (Fla. 4th DCA 2020). In Erlandsson, the client was present and
clearly wished to contest the proceedings.

Lawyers generally owe all clients specific duties imposed by the Rules of Professional
Conduct. Among them, lawyers must competently and diligently represent clients. Rules 4-1.1
and 4-1.3, Rules of Professional Conduct. Lawyers must communicate with clients about their
representation and give clients enough information that clients can make informed decisions
about their representation under Rule 4-1.4. Lawyers also must abide by clients’ decisions
relating to the objectives of their representation under Rule 4-1.2. When a client’s ability to
make decisions about their own legal matters is impaired, lawyers must treat them the same as
other clients as much as possible and can take protective action only when reasonably necessary
because the client cannot act in the client’s own interests under Rule 4-1.14. Where the ability to
communicate with the client or the client’s ability to make decisions in a matter is impaired due
to the client’s disability, the lawyer must comply with Rule 4-1.14.
However, if the inquirer lacks time to communicate with the client because the hearing is
scheduled to be held shortly after the appointment, the inquirer should seek a continuance under
appropriate circumstances to allow the inquirer to communicate with the client and ascertain the
client’s wishes.
Regarding the duty to communicate, the comment to Rule 4-1.4 provides as
follows:
Subdivision (a)(2) requires the lawyer to reasonably consult with the client about
the means to be used to accomplish the client’s objectives. In some situations –
depending on both the importance of the action under consideration and the
feasibility of consulting with the client – this duty will require consultation prior
to taking action. In other circumstances, such as during a trial when an immediate
decision must be made, the exigency of the situation may require the lawyer to act
without prior consultation. In such cases the lawyer must nonetheless act
reasonably to inform the client of actions the lawyer has taken on the client’s
behalf.
Thus, if the continuance is denied, or the court orders an ex parte hearing, the inquirer
may nevertheless represent the client although the inquirer is unable to communicate with the
client. The inquirer, as reasonably practicable under the circumstances, must investigate the
factual background leading to the guardianship as well as what evidence may be relevant to the
proceedings. Investigation should include determining to the extent possible whether the client
has previously expressed the client’s wishes regarding guardianship or what those wishes might
be. When unable to communicate with the client, the inquirer may investigate by interviewing
the individuals listed on the relevant pleadings and attempting to locate and review any estate
and incapacity documents previously executed, for example.
At the actual hearing, the lawyer must competently and diligently represent the client. If
the inquirer has been able to ascertain the client’s wishes through investigation, those wishes will
dictate the appropriate action. For example, if the inquirer has been able to determine that the
client would oppose a guardianship, the inquirer should raise any good faith defenses to the
guardianship in the hearing, presenting appropriate evidence gathered in the inquirer’s
investigation, cross-examining the petitioner’s witnesses, testing the evidence presented by the
petitioner, ensuring that the petitioner proves all essential elements to establish a guardianship,

and making appropriate arguments. See, Rules 4-1.1, 4-1.3, 4-3.1, Rules of Professional
Conduct. Even if the evidence is unclear or indicates that the client may not have opposed a
guardianship, the inquirer should protect the client’s procedural rights. In protecting the client’s
rights in the proceedings, the inquirer should ensure that the petitioner has met the petitioner’s
burden to establish that the guardianship is necessary and, if the hearing is being held ex parte,
that the petitioner has met the burden of establishing that the ex parte proceeding meets the
statutory criteria and any other requirements. The inquirer then has the obligation to notify the
client of the proceedings and their outcome under Rule 4-1.4.
In sum, the inquirer’s obligations under the rules may be harmonized with statutory
requirements even where the inquirer is unable to communicate with the client, either by time
constraints or court order. The inquirer still must investigate as reasonably practicable under the
circumstances, cross examine the petitioner’s witnesses, test the petitioner’s evidence, present
any appropriate testimony or other evidence found during investigation, ensure that the petitioner
proves all essential elements of the guardianship, protect the client’s procedural rights, and, if the
hearing is held ex parte, that the petitioner has met the burden of establishing the necessity of the
ex parte proceeding under the statute. The inquirer must then notify the client of the proceedings
and their outcome.