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Opinion addresses attorney obligations when clients can’t be reached before emergency hearings

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Attorneys appointed to represent allegedly incapacitated persons in emergency guardianship hearings and can’t reach their clients before the hearing are still required to zealously protect their interests and ensure their procedural rights, according to a new ethics opinion being published by the Professional Ethics Committee.

The committee on March 23 approved Proposed Advisory Opinion 21-3, which stemmed from a lawyer asking about duties owed to a client he was appointed to represent when he could not meet with the client before the emergency temporary guardianship hearing.

“He wasn’t clear on what his responsibilities were to his client when under the circumstances he had no opportunity to consult with his client before the hearing,” said committee member Michael Dribin, who chaired the subcommittee that drafted the proposed advisory opinion.

“This opinion, when adopted, will be a great service to the bar practicing in this area,” he added. “There’s been a tremendous amount of uncertainty on the part of attorneys representing allegedly incapacitated persons especially in emergency situations. This will be a great guide and assistance to them.”

The opinion is published here and any comments will be considered by the PEC at its June meeting. If there are no objections, the opinion will become final.

Dribin said the Real Property, Probate and Trust Law Section was consulted and provided a report and recommendations, which were incorporated.

The opinion says that attorneys still owe all specific duties outlined in the Rules of Professional Conduct and that Rule 4-1.14, which covers representing incapacitated clients, applies when attorneys are unable to contact the client before an emergency guardianship hearing. That includes, in appropriate circumstances, seeking a continuance.

The opinion concludes that, “[T]he inquirer’s obligations under the rules may be harmonized with statutory requirements [of F.S. §744.102, which covers emergency guardianship hearings] 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.”

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