How do you represent a client you can’t contact?
PEC examines dilemma arising from emergency temporary guardianship hearings
With input from the Real Property, Probate and Trust Law and Elder Law sections, the Bar’s Professional Ethics Committee is moving toward issuing an advisory opinion for lawyers who are appointed to represent subjects of emergency temporary guardianship hearings but don’t have a chance to meet with the client before the hearing.
The committee voted at its January 14 meeting to pursue a formal ethics opinion after getting reports from the two sections.
The issue stemmed from an attorney inquiry over a possible conflict between F.S. §774.3031 and Bar rules. Bar ethics staff said they could not answer the question because of a lack of precedent and the inquirer asked the committee to look at the issue.
The committee in October asked the RPPTL section to weigh in.
“The immediate problem arises when there is no opportunity to consult with a client [before the emergency hearing]. The [RPPTL] report and recommendations…suggest when an attorney is unable to communicate with a client regarding the client’s express wishes, part of the background investigation and evidence by the attorney will be to investigate what the client’s wishes would be or whether the client has previously expressed his or her wishes,” said committee member Michael Dribin, on behalf of the RPPTL section.
In response to a question, he added, “This is a frequent problem and in discussion with the Real Property, Probate and Trust Law Section…this comes up time and time again and attorneys are very frustrated at not being quite sure what their obligations are in these circumstances.”
The inquiring attorney noted he regularly gets appointed in such cases in several counties and often has trouble reaching clients, as the emergency hearings may come only a day or so after the appointment.
The RPPTL report, prepared by its Professionalism and Ethics Committee, concluded “that Chapter 744 may be harmonized with the Rules Regulating the Florida Bar such that the attorney may continue representation by investigating the client’s wishes and background and by zealously advocating on behalf of the client using the information gathered from such investigation.”
If the attorney cannot meet with the client or discover evidence on the client’s wishes, then the attorney should seek a continuance. If that is not possible, the opinion said, “the attorney must then zealously advocate for the client. As noted in Erlandsson v. Erlandsson, 296 So. 2d 431 (Fla. 4th DCA 2020), there is a dearth of caselaw that addresses exactly what obligations the attorney has in effectuating such advocacy. Such zealous advocacy on behalf of the client must be within the context that an attorney may only take positions where there is a good-faith basis in law or fact. (See Rule 4-3.1). The attorney should present all evidence gathered and should assert all defenses to the guardianship where there is a good-faith basis to do so. Where there is no evidence that the court-appointed attorney can present to oppose the guardianship in good faith, then zealous advocacy on behalf of the client means ensuring that the client’s right to a fair proceeding is protected, which includes requiring that the petitioner prove all essential elements.” That includes, if no other evidence is available, cross examining witnesses to determine the client’s wishes.
The RPPTL paper was sent to the Elder Law Section, which reached generally the same conclusion.
Its response found, “The attorney can investigate the client’s wishes and potential evidence even if the attorney is unable to communicate with the client by taking actions such as interviewing the individuals listed on the relevant pleadings. The attorney should also seek to locate and review any estate and incapacity documents previously executed.”
Both the RPPTL and Elder Law responses referred to the Fourth District Court of Appeal’s Erlandsson decision, issued on May 6. That case involved an appointed attorney who did not follow the client’s wishes — including to fire the attorney and also oppose the guardianship — believing the client lacked the capacity to make competent decisions.
The Fourth DCA overturned the trial court’s refusal to allow the client to get another attorney, saying both Chapter 744 and Bar rules required the lawyer to present the client’s wishes and not substitute what the lawyer thought was in the client’s best interests.
Dribin moved to have the Bar staff draft a formal advisory opinion based on the finding of the RPPTL Professionalism and Ethics Committee and which would apply to emergency temporary guardianship hearings.
The opinion could come back to the PEC at its next meeting, and if approved there, be published for public comment by Bar members. Those would be considered by the PEC at its subsequent meeting.
The committee approved that motion 35-1.
