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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Maryland Legal Ethics
Maryland Rule 1.14 and the comment to it are substantively identical to MR 1.14 and its comment with two exceptions. On February 3, 1997, the American Bar Association added two new paragraphs regarding justifiable emergency legal action by an attorney to the comment section of MR 1.14. These paragraphs have not yet been adopted by Maryland.
There is no counterpart to this Rule in the Disciplinary Rules of the Model Code. EC 7-12 which recognizes, inter alia that a client under a physical or mental disability that renders him unable to make considered judgments on his own behalf places additional responsibilities on the client's lawyer. EC 7-12 attempts to explain, in more detail than Maryland Rule 1.14, the lawyer's responsibility under specific circumstances.
Similarly, EC 7-11 states the "responsibilities of a lawyer may vary according to the intelligence, experience, mental condition or age of a client . . . ."
In the limited number of cases in which a Maryland court has directly addressed issues regarding the disability of a client under this Rule, the disabled party was a minor. A child is considered to be a "disabled client" and within the protection of Maryland Rule 1.14. The court may appoint an attorney to act on behalf of a child who has an interest in a matter. See Leary v. Leary, 97 Md. App. 26 (1993). A lawyer's responsibilities in representing a client with a disability are different than are otherwise required in representing a client. Accordingly, in order to help define the role of a court-appointed attorney in a child custody dispute, the court is expected to identify the responsibilities of the court-appointed attorney in the order appointing counsel. Id. at 40. When a court appoints an attorney to be a guardian ad litem for a child, the attorney's duty is to make a determination and recommendation after deciding what is in the best interest of the child. Id. A child's attorney is responsible for providing the court with an independent analysis of the child's best interest, not advocating any particular person's position. John O. v. Jane O., 90 Md. App. 406 (1992). Therefore, in a child custody dispute, the child's preference as to custody should be considered by counsel, but is not necessarily controlling. Id.
This section has not yet been written.
Maryland Rule 1.14 and its comment recognize that there may be situations where it is not possible to maintain a normal client-lawyer relationship with a client due to the client's minority, mental disability, or other disability. Under circumstances where the lawyer believes that the client is incapable of making decisions about important matters and incapable of acting in his own best interest, the lawyer may seek the appointment of a guardian or take other protective action if the lawyer believes such action would be in the client's best interests. Id. If a guardian or legal representative has already been appointed, then the lawyer should rely on that person to make decisions on behalf of the client. See Maryland Rule 1.14, cmt. The comment reflects that there are varying degrees of competence and that the client should make those decisions he is capable of making. Further, the comment contemplates that the appointment of a legal representative may be expensive or traumatic for the client. These are factors the lawyer should consider in determining whether to seek the appointment of a guardian or legal representative. Id.
In order to seek the appointment of a guardian of the person or of the property, an "interested person" must petition the court. MD Rules 10-201(a) and 10-301(a). An "interested person" is defined as "the minor or the disabled person; the guardian and heirs of that person; a governmental agency paying benefits to that person or a person or agency eligible to serve as guardian of the person under Code, Estates and Trusts Article, ¤ 13-707;...." MD Rule 10-103(f); Md Code Ann., Est. & Trusts ¤ 13- 101(j) (1991 & Supp. 1998). Because the attorney of an alleged disabled does not specifically meet this definition of "interested person," it is necessary to determine who is eligible to serve as a guardian of the person under Section 13-707 of the Estates and Trusts Article. Section 13-707 lists, in order of priority, those persons entitled to appointment as guardian of the person. The list includes a variety of persons and a general category that covers any other person, agency, or corporation considered appropriate by the court. Md Code Ann., Est. & Trusts ¤ 13-707 (1991 & Supp. 1998). This general category appears broad enough to include an attorney. Therefore, because an attorney is presumably eligible to serve as a guardian, the attorney may be classified as an interested person under Maryland Rule 10-103(f) and Section 13-101(j) of the Estates and Trusts Article. Once a petition for guardianship of the person or property of a disabled person or minor is filed by an attorney, the court will appoint an attorney to represent the allegedly disabled party. MD Rule 10-106; See also Md Code Ann., Est. & Trusts ¤ 13-211(b) (1991).