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End-of-life notice: American Legal Ethics Library

As of March 1, 2013, the Legal Information Institute is no longer maintaining the information in the American Legal Ethics Library. It is no longer possible for us to maintain it at a level of completeness and accuracy given its staffing needs. It is very possible that we will revive it at a future time. At this point, it is in need of a complete technological renovation and reworking of the "correspondent firm" model which successfully sustained it for many years.

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Delaware Legal Ethics

Rule 1.14 Client Under a Disability

1.14:100 Comparative Analysis of Delaware Rule

1.14:101 Model Rule Comparison

The text and comments of Model Rule 1.14 is identical to Delaware’s Rule 1.14.

1.14:102 Model Code Comparison

There is no counter part to Rule 1.14 in the Model Code. EC 7-11 briefly discusses that the responsibilities of a lawyer may be affected by the “intelligence, experience, mental condition, or age of the client,” and gives as an example an illiterate or incompetent client. EC 7-12 discusses how a lawyer, when dealing with an incapable client, would need to look to the legal representative of that client, if there is one. Where no such legal representative exists, the lawyer should act as the lawyer feels is in the best interest of the client, but cannot take action requiring the client’s approval, because the incapacity and the lack of legal representation make getting this necessary approval impossible.

1.14:200 Problems in Representing a Partially or Severely Disabled Client

Comment [3] briefly touches on the problem of maintaining attorney client privilege when the disabled client may wish to have others present, including family members. DLRPC Rule 1.14 cmt. 3. Comment [8] indicates that the mere act of attempting to get help, when help is needed for the client, may require revealing the client’s diminished capacities, something that may be against the client’s wishes. DLRPC Rule 1.14 cmt. 8. Comments [9] & [10] also cover the burden placed on lawyers of clients with diminished capacities, during times when the health, safety or a financial interest of the client is threatened with imminent and irreparable harm. DLRPC Rule 1.14 cmt. 9 & 10.

A problem for lawyers is determining when their clients are so disabled that they are no longer competent. Hill v. Hill, C.A. No. S-85-9-17C1989 Del. Fam. Ct. LEXIS 19 (Jan. 24, 1989). In Hill v. Hill, a client made a verbal approval of a settlement agreement over the phone with her lawyer, but refused to sign the agreement later in her lawyer’s office. Id. She claimed she was incompetent since she had a history of depression and was taking valium at the time. Although the Court found the lawyer had used poor judgment in explaining the settlement over the phone, it found that the client had agreed to the offer. Id.

A case demonstrating some of the difficulties that exist in representing a disabled client is In Re: Indira, involving a medical doctor who was a victim of an automobile accident, left with cognitive brain problems which resulted in “unstable and erratic behavior.” In Re: Indira. C.A. No. 8901-NC, 1999 Del. Ch. LEXIS 117, at *1 (Del. Ch. June 4, 1999). The doctor hired a law firm to represent her under a retainer agreement, but the relationship quickly strained. Id. at *2-3. The positions taken by the doctor caused the firm to feel it could no longer achieve the best outcome for the client. However, the firm felt it was not “free to resign as [the doctor’s] counsel without risking potential liability or claims of unethical conduct.” Id. at *3. “Ultimately, [the firm] concluded that the only out of this dilemma was to seek a court appointed guardian ad litem with authority to make all necessary litigation decisions in [the doctor’s] best interests and on her behalf.” Id. at *4. The doctor opposed such action, but the firm moved ahead and hired experts to testify on behalf of the appointment of a guardian ad litem. Id. Eventually, the situation was sorted out after the doctor retained new counsel, who was able to reach a settlement agreement for the original accident claim with only the appointment of an interim, not permanent, guardian. Id. at *5-6. The case centered on the original firms claim for its portion of the settlement, per the original retainer agreement, and for the expenses it accrued when trying to get a guardian ad litem appointed. Id. at *7. The Court awarded the expenses because it found that the firm had “acted in good faith and for justifiable reasons” when it took steps to have a guardian ad litem appointed, namely that without such action it was facing the possibility that its client would recover nothing from the original accident litigation. Id. at *15.

Representing a Child

Another example of a difficulty in representing a disabled client occurs when representing a child. In In Re: Frazer, the Court held held that “a child who is the subject of termination proceedings may not institute an appeal in the child’s own name,” but this can be corrected “by the appointment of a Guardian ad Litem.” In Re: Frazer, 721 A.2d 920, 922 (Del. 1998).

Statute of Limitations for an Infant’s Appeal. “When an infant or a mentally incompetent person is a party to an action and was not represented in the action in the lower court by a guardian ad litem, general guardian or trustee, the time within which such infant or mentally incompetent person may appeal to the Supreme Court shall begin to run at the ceasing of such disability and not at the time of signing the judgment or decree.” 10 Del. C. § 146 (2005).

Represented by an attorney without a guardian. “[I]t is a well established rule of practice that an infant must appear and defend by a guardian and not in person, or merely by an attorney.” King v. Cordrey, 177 A. 303, 307 (Del. Super. 1935).

Procedural rights of a child if a counsel or a guardian ad litem has been appointed. “Each party to a proceeding under this chapter (including the child, if counsel or a guardian ad litem for the child has been appointed by the Court) shall possess all the procedural rights which those parties would have heretofore possessed in any proceeding brought pursuant to this chapter in the Superior Court of this State, including, but not limited to, the following: (1) Right to institute and retain complete control of the suit; (2) Right to select counsel; and (3) Right to appeal to the Supreme Court of this State on the record from interlocutory or final orders, such appeals to be in the form and manner provided by the Rules of the Supreme Court.” 13 Del. C. § 732 (2005).

1.14:300 Maintaining Client-Lawyer Relationship with Disabled Client

Comment [2] “The fact that a client suffers a disability does not diminish the lawyer's obligation to treat the client with attention and respect. Even if the person has a legal representative, the lawyer should as far as possible accord the represented person the status of client, particularly in maintaining communication.” DLRPC Rule 1.14 cmt. 2.

Another issue arising when dealing with the representation of a child is that under Delaware law, the position of attorney guardian ad litem can be created. Those holding this position represent the child’s court appointed guardian, or guardian ad litem, and, as such, do not represent the child. Thus, they can act in a manner deemed best for the child, regardless of the wishes of the child. It should be noted that in an opinion of a Delaware State Bar Association Committee, concerns were raised regarding whether young children could understand this difference when giving confidential information to their lawyers, subject to their wishes, and when giving information to one appointed as attorney guardian ad litem, subject to act in what they deem the best interest of the child to be. Delaware State Bar Association, Committee on Professional Ethics, Opinion 2001-1.

1.14:400 Appointment of Guardian or Other Protective Action

Comment [5] “If a lawyer reasonably believes that a client is at risk of substantial physical, financial or other harm unless action is taken, and that a normal client-lawyer relationship cannot be maintained as provided in paragraph (a) because the client lacks sufficient capacity to communicate or to make adequately considered decisions in connection with the representation, then paragraph (b) permits the lawyer to take protective measures deemed necessary. Such measures could include: consulting with family members, using a reconsideration period to permit clarification or improvement of circumstances, using voluntary surrogate decisionmaking tools such as durable powers of attorney or consulting with support groups, professional services, adult-protective agencies or other individuals or entities that have the ability to protect the client. In taking any protective action, the lawyer should be guided by such factors as the wishes and values of the client to the extent known, the client's best interests and the goals of intruding into the client's decisionmaking autonomy to the least extent feasible, maximizing client capacities and respecting the client's family and social connections.” DLRPC Rule 1.14 cmt. 5.

Comment [7] “If a legal representative has not been appointed, the lawyer should consider whether appointment of a guardian ad litem, conservator or guardian is necessary to protect the client's interests. Thus, if a client with diminished capacity has substantial property that should be sold for the client's benefit, effective completion of the transaction may require appointment of a legal representative. In addition, rules of procedure in litigation sometimes provide that minors or persons with diminished capacity must be represented by a guardian or next friend if they do not have a general guardian. In many circumstances, however, appointment of a legal representative may be more expensive or traumatic for the client than circumstances in fact require. Evaluation of such circumstances is a matter entrusted to the professional judgment of the lawyer. In considering alternatives, however, the lawyer should be aware of any law that requires the lawyer to advocate the least restrictive action on behalf of the client.” DLRPC Rule 1.14 cmt. 7.

How and When to Appoint

Court jurisdiction and power to appoint a guardian. 12 Del. C. § 3901 (2005) gives the jurisdiction and the power to the Court of Chancery (and any judge of the Superior Court when no Chancellor or Vice Chancellor is available) “to appoint guardians for the person or property, or both, of any disabled person resident of this State, a guardian of the Delaware property of any nonresident disabled person owning property located in this State, and a guardian of the person of any nonresident disabled person brought into this State for care. ‘Disabled person’ means any person” who is:

   (1) Under the age of 18; or

   (2) Mentally or physically incapacitated, such that they cannot properly “manage or care for their own person or property, or both, and, in consequence thereof, is in danger of . . . losing such property or” whose personal health is substantially endangered.

12 Del. C. § 3901(k) (2005) gives the power to appoint a guardian to “[t]he Superior Court or the Court of Common Pleas . . . in connection with a single-transaction matter arising out of a tort claim for a disabled person. Upon entry of an order appointing a guardian and approving a settlement, jurisdiction of the matter shall be transferred to the Court of Chancery for administration pursuant to this chapter.”

10 Del. C. § 925 (2005) states that “[Family] Court and each Judge shall have authority to: (14) Appoint guardians ad litem; [and] (17) Appoint attorneys and/or Court-Appointed Special Advocates to serve as guardians ad litem to represent the best interests of a child in any child welfare proceeding.”

“The Court of Chancery may remove a guardian for any sufficient cause. A guardian may, on petition, be allowed to resign when it appears to the Court proper to allow the same. On every such removal or resignation and also on the death of any guardian the Court may appoint a successor guardian.” 12 Del. C. § 3908(a) (2005).

Determining mental incapacity. “Mental incapacity” in § 3901 “includes (1) a pattern demonstrating an inability to recognize as relevant to decisions of significance, facts or considerations that one would expect reasonable and competent persons to recognize as relevant to such a decision; (2) a pattern demonstrating an inability to reason with respect to decisions that are relatively simple but personally important, in a way that is internally consistent; or (3) the presence of a mental disease or condition that interferes with the operation of the prospective ward’s perceptions or reasoning to such an extent as to raise a substantial likelihood that decisions relating to matters of importance to her have been affected by that mental disease or condition.” In Re: Gordy, 658 A.2d 613, 617 (Del. Ch. 1994). But “[n]othing in this section shall be construed to mean an adult is infirm or incapacitated or in need of a guardian for the sole reason an adult relies upon, or is being furnished with, treatment by spiritual means through prayer alone in accordance with the tenets and practices of a recognized church or religious denomination, nor shall anything in this section be construed to authorize or require any medical care or treatment over the implied or express objections of said person.” 12 Del. C. § 3901(j) (2005). Also, a client facing the death penalty, who makes a deliberate decision to accept the death penalty instead of pursuing other options should not, looking at just the decision itself, be found to be acting irrationally. Red Dog v. Delaware, 625 A.2d 245, 247 (Del. 1993). Under DLRPC Rule 1.14, the client’s attorney may still act, counter to the wishes of the client, to have a guardian appointed if done in good faith, and the attorney can demonstrate that there is “an objective and reasonable basis for believing that the client cannot act in this own interest.” Id.

Determining if appointment of a guardian is appropriate. In In re Garrett, the Court was faced with deciding whether or not an inmate in maximum security prison, sentenced to life, and with no contact with any family or friends, should be given a guardian after the inmate refused food and water and expressed a will to die. In re Garrett, 547 A.2d 609 (Del. Ch. 1988). The Court held that Delaware law required “every petition for the appointment of a guardian of a person involves three principal questions: (1) Is the proposed ward ‘unable properly to manage and care for his person;’ (2) Is such inability ‘a result of advanced age or mental infirmity or physical incapacity;’ and (3) Is the proposed ward, as a consequence, ‘in danger of substantially endangering his health.’” Id. at 611. The Court easily determined that the petition met the third requirement, but had trouble with the second and third. Id. The Court concluded that “[w]here there is a legitimate ground to doubt that a decision to end one's life is the product of an essentially healthy mind faced with a tragic choice, appointment of a guardian is warranted.” Id. at 613. And that since the Court could not “say that a person not suffering from a mental infirmity, facing conditions similar to those experienced by [the prisoner], might reasonably be expected to consider self-imposed death, and to act on that thought,” it was necessary to appoint a guardian. Id.

Child in proceedings which the Division of Family Services is a party. 13 Del. C. § 701(c) (2005) states that “[a]ny child who is the subject of a custody, visitation, guardianship, termination of parental rights, adoption or other related proceeding in which the Division of Family Services is a party should have a guardian ad litem appointed by the Court to represent the best interests of the child. The Court, in its discretion, may also appoint an attorney to represent the child's wishes. The guardian ad litem shall be an attorney authorized to practice law in the State or a Court-Appointed Special Advocate. The rights, responsibilities and duties of the attorney serving as guardian ad litem are set forth in section 9007A of Title 29, and the rights, responsibilities and duties of the Court-Appointed Special Advocate serving as guardian ad litem are set forth in Chapter 36 of Title 31. When determining whether to appoint an attorney through the Office of the Child Advocate or a Court-Appointed Special Advocate through the Family Court, the Family Court judge, in his or her discretion, should assign the most complex and serious cases to the Office of the Child Advocate.”

Interest in an estate. “The Court may appoint a guardian or guardians ad litem to represent the interests of persons who by reason of their minority or other cause are incompetent or of unborn or unascertainable persons who may have an interest in the estate.” 12 Del. C. § 2905(e) (2005).

Property tax proceedings. “Any person who owns or has any interest in any real estate upon which county taxes have been levied and is under the disability of infancy or incompetency of mind and does not have a guardian or trustee may be made a party defendant in any proceeding, and a guardian ad litem or trustee ad litem upon the bringing of the proceedings shall be appointed by the Superior Court or the Court of Common Pleas or by the justice of the peace upon the petition of the plaintiff in the proceeding.” 9 Del. C. § 8702 (2005).

Custody proceedings. Under 13 Del. C. § 8-612 (2005) “[t]he court shall appoint a guardian ad litem to represent a minor or incapacitated child if the child is a party or the court finds that the interests of the child are not adequately represented.”

Loss of Parental rights proceedings. 13 Del. C. § 1103 (2005) states that if “[t]he parent or parents of the child or any person or persons holding parental rights over such child are found by the Court to be mentally incompetent and, from evidence of 2 qualified psychiatrists selected by the Court, found to be unable to discharge parental responsibilities in the foreseeable future,” the Court shall appoint a licensed attorney as guardian ad litem to represent the alleged incompetent in the proceeding.

Interim guardian. “If, upon the filing of a petition, the Court finds the allegedly disabled person is in danger of incurring imminent serious physical harm or substantial economic loss or expense the Court may without notice and hearing appoint an interim guardian of the person or property to serve for a period of up to 30 days; provided, that a hearing shall be held within 30 days of such appointment in accordance with subsection (c) of this section. The guardian so appointed shall have all of the powers and duties granted to guardians in subchapter II of this chapter.” 12 Del. C. § 3901(d) (2005).

Court procedures for appointing a guardian. See 12 Del. C. § 3901 (2005) and court rules Del. Ch. Ct. R. 175 & 176 (2005).

Life or Death and other Medical decisions

Guardian. In Wilmington Med. Ctr., Inc. v. Gibbs, the Court recognized the Court of Chancery’s power to appoint a guardian ad litem. Wilmington Med. Ctr., Inc. v. Gibbs, 433 A.2d 1047, 1049 (Del. 1981). It further found that the “principles of due process . . . clearly compel the appointment of a guardian ad litem [in a case in] which a ruling [is] sought that [is] expected to determine whether a comatose person [will] live or die.” Id. In Div. of Family Services v. Carroll, the Court agreed with the decision of a guardian and attorney guardian ad litem to discontinue medical care to a severely brain damaged infant after finding that the guardian had made “an informed and rational judgment, free of bias or motive, as to the least detrimental alternative.” Div. of Family Services v. Carroll, 846 A.2d 256, 275 (Del. Fam. Ct. 2000).

Surrogates. If there is no guardian or agent, 16 Del. C. § 2507 (2005) allows a surrogate to make medical decisions for patients lacking capacity to make the decisions themselves. “If the patient's instructions or wishes are not known or clearly applicable, the surrogate's decision shall conform as closely as possible to what the patient would have done or intended under the circumstances. To the extent the surrogate knows or is able to determine, the surrogate's decision is to take into account, including, but not limited to, the following factors if applicable: i) The patient's personal, philosophical, religious and ethical values; ii) The patient's likelihood of regaining decision making capacity; iii) The patient's likelihood of death; iv) The treatment's burdens on and benefits to the patient; v) Reliable oral or written statements previously made by the patient, including, but not limited to, statements made to family members, friends, health care providers or religious leaders.” 16 Del. C. § 2507 (2005).

Limited liability. 16 Del. C. § 2510 (2005) states that “[a]n individual acting as agent or surrogate under this chapter [dealing with medical treatment decisions of those incapacitated] is not subject to civil or criminal liability or to discipline for unprofessional conduct for health-care decisions made in good faith.”

Overruling ward’s intentions. 16 Del. C. § 2506 (2005) states that “[a] guardian shall comply with the adult disabled person's individual instructions and may not revoke the adult disabled person's advance health-care directive unless the appointing court expressly so authorizes. Nothing in this chapter shall limit the jurisdiction of the Court of Chancery over the person and property of a disabled person.”

Safeguards. “Anyone who has good reason to believe that the withdrawal or withholding of health care in a particular case: (1) Is contrary to the most recent expressed wishes of a declarant; (2) is being proposed pursuant to an advance health-care directive that has been falsified, forged or coerced; or (3) is being considered without the benefit of a revocation which has been unlawfully concealed, destroyed, altered or cancelled; may petition the Court of Chancery for appointment of a guardian for such declarant.” 16 Del. C. § 2511(a) (2005).

Life advocate. In In Re: Tavel, the daughter of a woman in a persistent vegetative state petitioned the court to have her mother’s feeding tube removed. In Re: Tavel, 661 A.2d 1061, 1064 (Del. 1995). The Court appointed an attorney ad litem, who did an independent investigation and based on that investigation also advocated for the removal of the feeding tube. Id. at 1063. The Court of Chancery ordered the feeding tube removed after finding clear and convincing evidence that such removal was the intent of the elderly woman. Id. The State of Delaware appealed the decision. Id. In the appeal the Court upheld the decision and found that the Court of Chancery properly followed the “substitute judgment standard” where clear and convincing evidence was provided that the woman would have wanted the feeding tube removed if capable of making that decision. Id. at 1070. The State further challenged the attorney ad litem’s advocacy for the removal of the tube rather than sustaining the life of the woman. Id. at 1070-1. The Court found that Del. Ch. Ct. R. 176(a) “provides great latitude to the attorney ad litem to determine the position he or she will advocate” and as such the attorney ad litem was able to side with the guardian and advocate the removal of the feeding tube and the almost certain death that would follow. Id. at 1071. The Court did note that “if the attorney ad litem joins in the guardian’s petition and the trail court concludes, for any reason, that it would benefit from an adversarial presentation, it may appoint a ‘life advocate’ to oppose the petition.” Id. at 1071-2.

Other

Court supervision of guardians. “In exercising its general superintendence over guardians of aged and incompetent persons the Court of Chancery may instruct such fiduciaries in the exercise of their duties.” In Re: Gordy, 658 A.2d 613, 618 (Del. Ch. 1994).

Standard for acting on the ward’s behalf. Both the court, in it supervisory role, and the guardian, in his or her primary role, are bound to advance the best interest of the ward. The best interests of the ward is a standard that attempts to replicate the decisions that the ward herself would make, under the circumstances, if she did not suffer from diminished mental capacity or physical incapacity. In Re: Gordy, 658 A.2d 613, 618 (Del. Ch. 1994).

Expenses for petition for guardian. An attorney can recover expenses connected with getting a guardian ad litem appointed for a client, even if the client opposes the appointment and the ultimate result is no guardian ad litem is appointed so long as the firm “acted in good faith and for justifiable reasons.” In Re: Indira. C.A. No. 8901-NC, 1999 Del. Ch. LEXIS 117, at *15 (Del. Ch. June 4, 1999).

Attorney guardian ad litem. It is important to distinguish between an attorney representing a child client and what, under Delaware law, is called an attorney guardian ad litem. A guardian ad litem may be appointed by the Family Court as a party in child welfare proceedings to act not as the child wishes, but rather in the best interest of the child. 29 Del. C. § 9002A(12) (2005). Where the wishes and best interest conflict, the attorney guardian ad litem shall make the Court aware of the conflict. In that position, the attorney may conduct independent investigations. The attorney may even share confidential information if he deems it in the best interest of the child. But the attorney guardian ad litem shall “in no way intervene in any pending criminal investigation or prosecution, and shall provide no legal representation or advice to any suspect, defendant or respondent in any open criminal investigation or prosecution.” 29 Del. C. § 9007A (2005).