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Ohio Legal Ethics Narrative



1.14:100 Comparative Analysis of Ohio Rule

1.14:101 Model Rule Comparison

Ohio Rule 1.14 is substantively identical to the Model Rule.

1.14:102 Ohio Code Comparison

The following sections of the Ohio Code of Professional Responsibility are listed in the Correlation Table (Appendix A to the Rules) as related to Ohio Rule 1.14: EC 7-11, EC 7-12.

1.14:200 Problems in Representing a Client with Partially or Severely Diminished Capacity

  • Primary Ohio References: Ohio Rule 1.14
  • Background References: ABA Model Rule 1.14
  • Ohio Commentary: Greenbaum, Lawyer's Guide to the Ohio Code of Professional Responsibility § 7.24
  • Commentary: ABA/BNA § 31:601; ALI-LGL § 24; Wolfram § 4.4

The material in this section is, in part, excerpted and adapted from Arthur F. Greenbaum, Lawyer's Guide to the Ohio Code of Professional Responsibility § 7.24 (1996).

Special problems arise in allocating decision-making authority where the client has a mental or physical condition that diminishes her ability to make a considered judgment on matters related to the representation. Ohio Rule 1.14 provides the framework for dealing with these problems, although it does so in a manner less explicit than was provided in former EC 7-12. (For example, EC 7-12 stated directly that the client’s disability and the lack of a legal representative may compel the lawyer to make decisions for the client; in contrast, the authority to take such a step if necessary is implicit in Rule 1.14.) As the Ohio Code Comparison to Rule 1.14 states, "the rule does not address the matter of decision-making, as [was] the case in EC 7-12, but merely states that the lawyer should maintain a normal client-lawyer relationship as far as reasonably possible." In the words of Hazard and Hodes, this normal-as-reasonably-possible concept "commit[s] the fine judgments that must be made to the professional discretion of the lawyer on the scene. . . . The chief mission of Model Rule 1.14(a) [identical to Ohio Rule 1.14(a)], therefore, is simply to ensure that lawyers adequately think through the difficult problems associated with representation of clients with some form of diminished capacity." 1 Geoffrey C. Hazard, Jr. & W. William Hodes, The Law of Lawyering §  18.4, at 18-9 to 18-10 (3d ed. Supp. 2005-2). If the lawyer does so, he or she should not be at disciplinary risk. Id. See generally Ohio Rule 1.14 cmt. [1] (lawyer's responsibilities may vary according to intelligence, experience, mental condition, or age of client).

To the extent the client is acting through a legal guardian, the lawyer should turn to the guardian to make those decisions otherwise reserved for the client. Ohio Rule 1.14 cmt. [4]. If there is no responsible third party, every effort should be made to involve the client in the decision-making process insofar as the client’s condition allows it. Ohio Rule 1.14(a) & cmt. [2]. If that is impossible and if the lawyer reasonably believes that the client is at risk of “substantial physical, financial, or other harm” unless action is taken, then the lawyer may take reasonably necessary protective action, including, where appropriate, seeking the appointment of a guardian for the client. See Rule 1.14(b) and cmts. [3] & [9]; section 1.14:400. In assessing the client's capacity the lawyer should

consider and balance such factors as: the client's ability to articulate reasoning leading to a decision, variability of state of mind and ability to appreciate consequences of a decision; the substantive fairness of a decision; and the consistency of a decision with the known long-term commitments and values of the client. In appropriate circumstances, the lawyer may seek guidance from an appropriate diagnostician.

Ohio Rule 1.14 cmt. [6]. Appointment of a guardian, particularly when doing so is against the client's wishes, is permitted "if there is no less drastic alternative," but the courts have recognized that in some situations such a step may be necessary to protect the client's interests. See ABA, Annotated Model Rules of Professional Conduct 220-21 (6th ed. 2007) (commentary). Finally, representation of a client with diminished capacity raises special issues with respect to confidential information and disclosure of such information where necessary in the best interests of the client. Ohio Rule 1.14(c). See section 1.14:500.

Another "problem" that arises in representation of a disabled client is one created by lawyers themselves: Given the client's limitations, there are always a few rogue lawyers who cannot resist the temptation to take advantage of those limitations. Cases decided under the former OHCPR reflecting this weakness include Disciplinary Counsel v. Hunter, 106 Ohio St.3d 418, 2005 Ohio 5411, 835 N.E.2d 707 ("The injuries suffered due to respondent's transgressions were immense. Respondent misappropriated nearly $ 300,000 from an incompetent ward and a trust she had promised to protect." Id. at para. 36); Medina County Bar Ass'n v. Carlson, 100 Ohio St.3d 134, 2003 Ohio 5073, 797 N.E.2d 55 (2003) ("egregious" misconduct in arranging to buy mentally-ill client's property for a small fraction of what it was worth; Court upped board's proposed six-month suspension to two years); Cleveland Bar Ass'n v. Harris, 96 Ohio St.3d 138, 2002 Ohio 2988, 772 N.E.2d 621 (conversion of funds entrusted to lawyer by institutionalized client); Office of Disciplinary Counsel v. Liviola, 94 Ohio St.3d 408, 763 N.E.2d 588 (2002) (duping schizophrenic New York friend into entrusting respondent with funds to be forwarded to nonexistent New York lawyer, who supposedly would deal with friend's legal problems); Office of Disciplinary Counsel v. Clifton, 79 Ohio St.3d 496, 684 N.E.2d 33 (1997) (misappropriation of assets of incompetent ward for whom respondent was acting as guardian and as attorney for the guardianship; this case is discussed in further detail in section 1.14:400 and near the end of section 1.3:200); Office of Disciplinary Counsel v. Slavens, 63 Ohio St. 3d 162, 586 N.E.2d 92 (1992) (after client was diagnosed with senility and organic brain syndrome, respondent had client execute new will which, inter alia. gave respondent 35% of client's $ 1.5 million estate (such misconduct is now dealt with directly by Ohio Rule 1.8(c); see section 1.8:400); he also obtained power of attorney for the client, pursuant to which he gave himself "gifts" in excess of $ 160,000). In all of these decisions save one (Carlson -- two-year suspension), the Court imposed either permanent disbarment (Liviola, Clifton) or an indefinite suspension (Harris, Slavens). The Harris case is particularly interesting on the sanctions aspect. The board recommended indefinite suspension, and the Court agreed, noting that respondent was "an honorably discharged veteran," and had always been active in his church.  96 Ohio St.3d 138, 2002 Ohio 2988, 772 N.E.2d 621, at para. 6. Justice Cook saw the case differently. In dissent (joined by Justice Pfeifer), she restates the issue: "The court's analysis should not begin with whether an indefinite suspension is warranted. . . . [P]recedent dictates that the threshold question must be whether there is any reason why we should not disbar Harris. Id. at para. 9 (emphasis in original). Quoting the panel, Justice Cook stressed that

"One who cannot be counted on the protect the interests of a special needs client, or one who misappropriates the funds of any client, is unfit to practice law in the State of Ohio."

Id. at ¶ 12.

Another example in which a lawyer disregarded his disabled client's interests, thereby exposing "the client to avoidable financial ruin," was Cuyahoga Bar Ass'n v. Newman, 102 Ohio St.3d 186, 2004 Ohio 2068, 808 N.E.2d 375, at para. 18. In Newman, respondent represented both a shopping center and a mentally-disabled client who leased a laundromat in the center; the disabled client was ultimately forced into bankruptcy when the laundromat failed. Even though the Court found a violation of former OH 7-101(A)(3), because respondent's "conduct manifests his intent to cause the client damage or prejudice," id. at para. 18 (as well as former OH 5-105(A) & (C)), in the course of suspending respondent for one year with six months stayed, it inconsistently concluded that "[r]espondent did not commit his misconduct to take advantage of his disabled client . . . ." Id. at 23.

Also, it was opined under the Code that while the lawyer has somewhat more leeway when the client is under a disability, the lawyer still may not accept a settlement offer that the lawyer believes is in the client's best interest, if the client nevertheless rejects it. Cleveland Bar Ass'n Op. 89-3 (Sept. 29, 1989).

1.14:300 Maintaining Client-Lawyer Relationship with Client with Diminished Capacity

  • Primary Ohio References: Ohio Rule 1.14(a)
  • Background References: ABA Model Rule 1.14(a)
  • Ohio Commentary: Guttenberg & Snyder, The Law of Professional Responsibility in Ohio § 4.3
  • Commentary: ABA/BNA § 31:601; ALI-LGL § 24; Wolfram § 4.4

While there appear to be no Ohio cases dealing directly with the subject of maintenance of the client-lawyer relationship with a client with diminished capacity, the guiding principle under Ohio Rule 1.14(a) is that

[w]hen a client's capacity to make adequately considered decisions in connection with a representation is diminished, whether because of minority, mental impairment or for some other reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client.

(emphasis added). Comment [1] underscores that

a client with diminished capacity often has the ability to understand, deliberate upon, and reach conclusions about matters affecting the client's own well-being.

Ohio Rule 1.14 cmt. [1]. Similarly, the former OHCPR advised that when a client is "capable of understanding the matter in question or of contributing to the advancement of his interests, regardless of whether he is legally disqualified from performing certain acts, the lawyer should obtain from him all possible aid." OH EC 7-12. See Rule 1.14 cmt. [3], noting that while family members may participate in discussions with the lawyer if the client so desires, the lawyer "must keep the client's interests foremost" and, except for protective action authorized under division (b), "must look to the client, and not family members, to make decisions on the client's behalf."

This theme of maintenance of a normal client-lawyer relationship, insofar as possible, is reiterated throughout the literature dealing with this issue. See, e.g., 1 Restatement (Third) of the Law Governing Lawyers §  24(1) (2000) ("the lawyer must, as far as reasonably possible, maintain a normal client-lawyer relationship with the client . . . ."); Laws. Man. on Prof. Conduct (ABA/BNA) §  31:601 (1991) (client should be treated, as much as possible, like any other client; "[t]hat is, the lawyer should advise the client of the law, offer advice about the proper course of action, and then follow, within reason and the law, the client's wishes"); accord 1 Geoffrey C. Hazard, Jr. & W. William Hodes, The Law of Lawyering §  18.4 (3d ed. Supp. 2005-2). See generally James D. Caruso, Diminished Capacity Representation: Protecting Yourself and Your Client, Ohio Law., Mar./Apr. 2008, at 14 (providing overview of Ohio Rule 1.14); Thomas Spahn, Dealing with Clients of Diminished Capacity, Experience, Winter 2007, at 41 (overview of MR 1.14 issues). See also  In re M.R., 638 A.2d 1274 (N.J. 1994) (lawyer for client with Down's syndrome instructed to follow client's wishes and argue for her positions unless they posed unreasonable risk of harm to her welfare or unless her positions were "absurd").

1.14:400 Appointment of Guardian or Other Protective Action

  • Primary Ohio References: Ohio Rule 1.14(b)
  • Background References: ABA Model Rule 1.14(b)
  • Ohio Commentary: Greenbaum, Lawyer's Guide to the Ohio Code of Professional Responsibility §§ 5.117, 7.24; Guttenberg & Snyder, The Law of Professional Responsibility in Ohio § 4.3
  • Commentary: ABA/BNA § 31:601; ALI-LGL § 24(4); Wolfram § 4.4

The material in this section is, in part, excerpted and adapted from Arthur F. Greenbaum, Lawyer's Guide to the Ohio Code of Professional Responsibility §§ 5.117, 7.24 (1996).

Seeking appointment of a guardian or other protective action: Among the protective actions a lawyer may take when the lawyer "reasonably believes" the client has diminished capacity or is at physical, financial, or other risk and cannot adequately act in his or her best interest is, in appropriate cases and when reasonably necessary, to seek the appointment of a guardian ad litem, conservator, or guardian. Ohio Rule 1.14(b). Comment [7] cites instances in which such appointment may be necessary, such as when the client has substantial property that should be sold and appointment of a legal representative is required to complete the transaction. Ohio Rule 1.14 cmt. [7]. Also, the rules of procedure sometimes provide that minors or persons with diminished capacities involved in litigation must be represented in the case by a guardian or next friend if they do not have a general guardian. Id. In other circumstances, weighing the pros and cons of taking such a step is left to the professional judgment of the lawyer. "In considering such alternatives, however, the lawyer should be aware of any law that requires the lawyer to advocate the least restrictive action on behalf of a client." Id.

Ohio Rule 1.14(b) also provides that, in addition to guardianship and guardianship ad litem, other "protective action" may be taken as necessary when the lawyer believes the client is at risk of harm. Such action could include consultation with family members, use of durable powers of attorney, and involvement of professional services or agencies designed to assist and protect the client. Ohio Rule 1.14(b) cmt. [5]. In taking 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.

Id. See also Lee A. Koosed, What Are the Ethical Obligations for an Attorney Who Believes a Client Is Mentally Impaired?, Clev. B. J., May 1997, at 13. Deciding whether to seek guardianship for a client with diminished capacity is a difficult determination. Rule 1.14 cmt. [7] advises that where no legal representative has been appointed, the lawyer should consider whether doing so is necessary to protect the client's interests. The comment goes on to note, however, that "appointment of a legal representative may be more expensive or traumatic for the client than circumstances in fact require." Obviously, where the client opposes such a step, appointment of a guardian should be undertaken only if no other feasible option is available.

Should guardianship or guardianship ad litem be deemed necessary for the client, the identical language of MR 1.14(b) has been read as requiring that "if the lawyer decides to file a guardianship petition, it must be on his own authority under Rule 1.14 and not on behalf of a third party, however well intentioned." A. Frank Johns, What's an Elder Law Attorney to Do?, Experience, Summer 2005, at 14, 20 (also stating, however, that the lawyer can provide assistance to a third person in filing the petition "short of representation." Id.).

Under the OHCPR regime, it was opined that in dealing with a client under a disability, the lawyer should evaluate the possibility that medical treatment might improve the client's condition and, if it would, suggest that option to the client. Cleveland Bar Ass'n Op. 89-3 (Sept. 29, 1989). The extent to which a lawyer could proceed to have a guardian appointed for the client, without engendering a conflict of interest, was unclear. The Cleveland Bar Association summed up the situation in the following terms:

The attorney should avoid placing himself in an adversarial position to the client by simultaneously representing the client and petitioning the probate court to appoint a guardian. He may, however, move for the appointment of a guardian ad litem to represent his client during the subject proceedings, provided that he institutes maximum safeguards to protect against prejudice to the client and to avoid unnecessary revealing of secrets and confidences of the client. Any settlement or compromise entered by the guardian ad litem should be approved by the court through its journals.

Id. at 1. See ABA Formal Op. 96-404 (Aug. 2, 1996) ("The appointment of a guardian is a serious deprivation of the client's rights and ought not be undertaken if other, less drastic solutions are available." Id. at 1.). For a case in which the lawyer successfully helped his client avoid a guardianship appointment two different times, even though this may not have been in the client's best interest (her mental health caseworkers were seeking to have a guardian appointed), see Office of Disciplinary Counsel v. Sims, 96 Ohio St.3d 465, 2002 Ohio 4798, 776 N.E.2d 18. Respondent subsequently obtained a power of attorney granting him sole authority over her affairs, including health care, but he then failed to provide for her care even though he had access to client funds with which to do so. The Sims case is further discussed in section 1.1:200 at "Skill requirements - Disciplinary standards."

With Sims, compare Kutnick v. Fischer, 2004 Ohio 5378, 2004 Ohio App. LEXIS 4907 (Cuyahoga), where the incompetent's lawyers were sued for malpractice by the administrator of the incompetent's estate for, among other things, instituting a guardianship proceeding against the client in an action independent of the case in which the lawyers were successfully defending the incompetent against an involuntary commitment proceeding. In the controlling opinion for a fragmented court (the second judge concurred in judgment only and wrote a separate opinion; the third judge dissented in part), Judge Rocco affirmed the granting of summary judgment for the defendant lawyers. On the guardianship point, he concluded that appellant's "claim for malpractice must fail to the extent it is based on the [lawyers'] alleged breach of a duty of loyalty by taking a position adverse to Kutnick in the guardianship proceeding," because

[a]n attorney representing an incompetent has special responsibilities, as the ethical considerations under Canon 7 demonstrate. See EC 7-12. We do not believe that any tort duty of loyalty precludes an attorney from pursuing the client's best interests by seeking a court determination of the client's competency and the appointment of a guardian in a proceeding separate from that in which the attorney is representing the client.

Id. at ¶ 23. Judge Kilbane dissented on this issue; Judge Karpinski agreed with Judge Rocco on the application-for-guardianship issue, but reached her conclusion "by a somewhat different route." Id. at ¶ 91. While agreeing that the Code did not preclude an attorney from filing an application for guardianship concerning a client, she went on to find support in the Model Rules, which, as she noted, were at that time under consideration for adoption (and have now been adopted) in Ohio. See id., at ¶¶ 94-95. The provision cited by Judge Karpinsky was proposed Ohio Rule 1.14(b), "which tracks" MR 1.14(b), id. at ¶ 94, and which is identical to Ohio Rule 1.14(b) as adopted.

Serving as both the lawyer for and guardian of the client: Attorneys are sometimes called on to serve as both the attorney and guardian ad litem for a party in a proceeding. At times, this is expressly provided by rule or statute. See OH Juv R 4(C) (approving dual role in juvenile court proceedings provided no conflict in role exists); ORC 2151.281(H) (approving dual role in acting on behalf of abused, neglected, or dependent children absent finding by guardian/attorney or court that conflict may exist, in which case court must appoint new guardian ad litem). In other instances, the conflict inherent in simultaneously carrying out dual roles is so high that it is expressly prohibited. See ORC 2151.281(B)(1) (in child abuse or neglect proceeding, lawyer cannot serve as both guardian ad litem to child and as attorney responsible for presenting evidence alleging child abuse or neglect). While in each role the lawyer is the advocate of the client in some sense, the roles diverge substantially. As an attorney, the lawyer's role is to advance the client's objectives, even if the lawyer believes those objectives are not in the client's best interest. This is not to suggest that the lawyer must accede to the client's declared position without first counseling the client about the merits of that position, but ultimately the lawyer must seek to achieve the client's lawful objectives. See former OH EC 7-8. As a guardian ad litem, in contrast, the lawyer's duty is to protect the best interest of the client, even if that interest is contrary to the client's desire.

The leading decision in Ohio on this distinction under the Code was In re Baby Girl Baxter, 17 Ohio St.3d 229, 479 N.E.2d 257 (1985). In Baxter, a custody proceeding involving a child of a mildly retarded mother who wanted to retain custody, the Court recognized that the applicable juvenile court rule expressly provided that counsel for the mother could also act as her guardian ad litem. But, as Justice Douglas explained for the Court:

The duty of a lawyer to his client and the duty of a guardian ad litem to his ward are not always identical and, in fact, may conflict. The role of guardian ad litem is to investigate the ward's situation and then to ask the court to do what the guardian feels is in the ward's best interest. The role of the attorney is to zealously represent his client within the bounds of the law. DR 7-101; DR 7-102.

We . . . find that Heflin [the mother's attorney] was put in the position of being required to ask the court, as guardian ad litem, to do what he felt was in his ward's best interests and simultaneously being required to champion his client's cause as her attorney. Since Heflin felt his ward-client's wishes were not beneficial to her, he was in an impossible situation.

Id. at 232, 479 N.E.2d at 260 (ellipsis and bracketed material added). As a result, the Court held that the mother's lawyer failed to provide her with proper representation in the juvenile court proceedings. It therefore reversed the grant of permanent custody to the county welfare department and remanded for further proceedings.

It is important to recognize that Baxter does not prohibit a lawyer from jointly serving as guardian and attorney for the client in all cases. In instances where the roles do not conflict, it is permissible, e.g., Jilek v. Jilek, Nos. L-92-304, L-92-305, 1993 Ohio App. LEXIS 3264 (Lucas, June 18, 1993) (permitting lawyer to serve as both counsel to and guardian ad litem for child in custody matter where, because the lawyer as guardian had no opinion as to the issue presented, conflict with child's interest did not arise). See Penn v. Penn, No. 54673, 1988 Ohio App. LEXIS 4530 (Cuyahoga Nov. 17, 1988) (no error in permitting one lawyer to occupy both positions for children in divorce proceeding where no prejudice is shown as a result of dual representation). See also  In re Howard, 119 Ohio App.3d 201, 695 N.E.2d 1 (Hamilton 1997) (no error in failure to appoint guardian ad litem in delinquency proceeding in which juvenile was represented by counsel and there was nothing in record to suggest parent was acting other than in child's best interest in testifying that child be committed to custody of Department of Youth Services). Where they do conflict, the dual role is not permissible.

Assuming a conflict exists, the next question is how to resolve it. The Supreme Court in Baxter stated that where a role conflict arises, the lawyer should seek permission from the court to withdraw as guardian ad litem while remaining as counsel, a request that should be freely granted:

[W]e hold that when an attorney is appointed to represent a person and is also appointed guardian ad litem for that person, his first and highest duty is to zealously represent his client within the bounds of the law and to champion his client's cause. If the attorney feels there is a conflict between his role as attorney and his role as guardian, he should petition the court for an order allowing him to withdraw as guardian. The court should not hesitate to grant such request.

17 Ohio St.3d at 232, 479 N.E.2d at 260. This approach was codified for a guardian ad litem for an alleged or adjudicated abused, neglected, or dependant child in ORC 2151.281(H), which provides in part:

[I]f a person is serving as guardian ad litem and counsel for a child and either that person or the court finds that a conflict may exist between the person's roles as guardian ad litem and as counsel, the court shall relieve the person of duties as guardian ad litem and appoint someone else as guardian ad litem for the child.

See In re Spaulding, No. L-92-180, 1993 Ohio App. LEXIS 2071 (Lucas Apr. 16, 1993) (inferring that ORC 2151.281(H) was intended to codify In re Baby Girl Baxter). (The dual role of guardian ad litem and attorney for a minor is examined in some detail in Bd. of Comm'rs on Grievances & Discipline Op. 2006-5, 2006 Ohio Griev. Discp. LEXIS 3, at *2-5 (June 9, 2006).)

A number of Ohio courts have followed the In re Baxter lead and do not permit the attorney for the disabled client to act also as guardian ad litem when conflicting duties arise in fulfilling the two roles.  In re Smith, 77 Ohio App.3d 1, 601 N.E.2d 45 (Ottawa 1991) (dual role of attorney for children and as their guardian ad litem denied children proper representation during custody dispute over who should be named residential parent; motion of lawyer to withdraw as guardian ad litem granted); Bawidamann v. Bawidamann, 63 Ohio App.3d 691, 580 N.E.2d 15 (Montgomery 1989) (dual role of attorney and guardian ad litem improper; trial court directed to appoint new guardian ad litem to represent best interests of children; if appointment of attorney for children deemed necessary or appropriate, counsel should be someone other than guardian ad litem); Dell v. Dell, No. L-86-133, 1986 Ohio App. LEXIS 9510 (Lucas Dec. 31, 1986) (reversing failure to appoint separate attorney for minor where same attorney was both guardian ad litem and lawyer for child and his opinion as guardian ad litem was at odds with wishes of child). See also  In re Clark, 141 Ohio App.3d 55, 749 N.E.2d 833 (Cuyahoga 2001) (failure to appoint counsel for children in child custody proceeding, even though they had guardian ad litem, was reversible error);  In re Stacey S., 136 Ohio App.3d 503, 737 N.E.2d 92 (Lucas 1999) (appointment of guardian ad litem and attorney for guardian ad litem insufficient to satisfy children's right to counsel in custody proceeding).

A few Ohio courts, however, have not treated the language from Baxter as binding, absent statutory direction to do so, and take the position that, as long as either role is dropped, the conflict is cured. For these courts, the question of which role should be terminated should be left to the sound discretion of the trial court. As the Second District Court of Appeals stated:

The factual setting before us differs significantly from that in Baxter. In that case the mother's right to legal representation deriving from R.C. 2151.352 and Juv. R. 4(A) was compromised when her appointed attorney acted contrary to her interests. One person could not perform both roles wholeheartedly and zealously. Recognizing that the statutory mandate was the superior motivating authority, the Supreme Court's conclusion seeks to serve the statutory purpose first. There is, however, no reason why the conflict of interest cannot be resolved as the court did here; allowing the attorney to withdraw as legal counsel and appointing another attorney as counsel who is not subject to the conflict.

Gallimore v. Gallimore, No. 88- CA-12, 1989 Ohio App. LEXIS 1231, at *7-8 (Miami Mar. 30, 1989).

The conflict of interest problems in acting as both attorney and guardian ad litem for a client are exacerbated when the guardian is likely to be called as witness in a proceeding. The Sixth District Court of Appeals summarized this concern in Dell v. Dell, No. L-86-133, 1986 Ohio App. LEXIS 9510 (Lucas Dec. 31, 1986):

DR 5-102, as a general rule, requires an attorney to withdraw where he shall testify as a witness in his client's case. Since custody disputes between the parents oftentimes require the testimony of the guardian ad litem, the guardian would be unable to represent the minor child because the disciplinary rules would necessitate his withdrawal. This result is of particular significance where the guardian ad litem's position is in direct contradiction to the child's alleged wishes.

Id. at *5. See generally Rule 3.7 of the treatise.

Serving as both attorney and guardian ad litem at times may involve other professional responsibility concerns in addition to conflicts of interest. Client confidences and secrets may be breached where the lawyer learns of information as an attorney that he feels bound to use or disclose, without client consent, as a guardian ad litem. Bawidamann v. Bawidamannn, 63 Ohio App.3d 691, 580 N.E.2d 15 (Montgomerly 1989) (criticizing lawyer's use of confidential communications with child clients to impeach their testimony when acting as their guardian ad litem).

Significant difficulties may also arise when the lawyer attempts to fill the roles of both guardian for a disabled person and attorney for the guardianship. See Office of Disciplinary Counsel v. Clifton, 79 Ohio St.3d 496, 684 N.E.2d 33 (1997):

The respondent undertook the dual roles of guardian and attorney for the guardianship of both the person and the estate of an incompetent woman who it appears had no close relatives. As the record indicates, respondent failed miserably in the performance of his duties in both roles. . . .

. . . The record here indicates that respondent, filling the dual role of guardian and attorney to the guardian, not only allowed the assets of [the ward's] estate to dissipate but also appropriated funds of the estate to his own use.

* * * *

As to respondent's responsibility as attorney for the guardianship, we said in [Office of Disciplinary Counsel v. Lucey, 14 Ohio St.3d 18, 21, 470 N.E.2d 888, 890 (1984)], "There are few ethical breaches which impact more negatively on the integrity of the legal profession than the misuse of a client's funds." . . .

* * * *

In this case, . . . we find no mitigating circumstances whatsoever. Respondent is permanently disbarred from the practice of law in Ohio.

Id. at 499, 500, 684 N.E. 2d 35, 36. The Clifton case is further discussed at section 1.3:200. Accord Toledo Bar Ass'n v. Doyle, 68 Ohio St.3d 24, 623 N.E.2d 37 (1993) (indefinite suspension).

1.14:500 Confidentiality Issues

  • Primary Ohio References: Ohio Rule 1.14(c)
  • Background References: ABA Model Rule 1.14(c)

Ohio Rule 1.14(c) tracks the language added as new MR 1.14(c) in 2002:

Information relating to the representation of a client with diminished capacity is protected by Rule 1.6. When taking protective action pursuant to division (b), the lawyer is impliedly authorized under Rule 1.6(a) to reveal information about the client, but only to the extent reasonably necessary to protect the client's interests.

Comment [8] elaborates that this implied authorization is applicable

even when the client directs the lawyer to the contrary. Nevertheless, given the risks of disclosure, division (c) limits what the lawyer may disclose in consulting with other individuals or entities or seeking the appointment of a legal representative. At the very least, the lawyer should determine whether it is likely that the person or entity consulted with will act adversely to the client's interest before discussing matters related to the client.

Ohio Rule 1.14 cmt. [8].

The commentary to ABA, Annotated Model Rules of Professional Conduct 221-23 (6th ed. 2007), provides an informative overview of issues relating to use of confidential information in the context of representation of a person with diminished capacity. Thus, in emphasizing that such use should be made only when reasonably necessary, the commentary contrasts a lawyer's providing confidential information to the client's physician in order to ascertain the client's condition with dissemination of the client's medical information to news media in order to generate support of the lawyer's position seeking emergency guardianship over the client, in a chronic vegetative state, where the parents had authorized withdrawal of sustenance. Id. at 221. Specific instances in which the issue comes up are in criminal proceedings (competence to stand trial), id. at 222; and the prevention of contemplated suicide by the client. Id. at 222-23. There are also laws in some states that require the reporting of privileged information in certain circumstances (e.g., elder abuse statutes; in Ohio see ORC 5101.61). Id. at 223.

The only Ohio case found that deals with the confidentiality issue in this context is Bawidamann v. Bawidamann, 63 Ohio App.3d 691, 580 N.E.2d 15 (Montgomery 1989), where the appellate court, in holding that minor wards in a child-custody case were denied proper representation in protection of their wishes by the trial court's allowing the guardian ad litem to act as the children's attorney, was critical of the lawyer's use of confidential information:

An attorney's use of confidential communications from his client to argue against his client's expressed preference is anything but the zealous representation of his client's cause; it is the antithesis of legal representation.

Id. at 703, 580 N.E.2d at 23. See also Cleveland Bar Ass'n Op. 89-3 (Sept. 29, 1989) (cited in Greenbaum at § 7.24), which stated, inter alia, that where the issue of guardianship arises with respect to a disabled client, the client's lawyer should institute "maximum safeguards . . . to avoid unnecessary revealing of secrets and confidences of the client." Op. 89-3, at 1.