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Bar Journal - Fall 2004

Blurred Boundaries and Attorneys' Duty of Loyalty: In Re Guardianship of Henderson



The New Hampshire Supreme Court recently ruled in In Re Guardianship of Jason Henderson that counsel for a proposed ward did not properly represent him, reversing the judgment appointing a guardian. The court-appointed attorney improperly took on the role of "guardian ad litem" when she reported to the court that the guardianship would be "reasonable."1 This denied Jason Henderson of "the full assistance of legal counsel to attack the guardianship petition."2

An attorney was appointed to represent Jason by the probate court when Phyllis Henderson, his mother, filed a petition for guardianship over her thirty-one-year-old son. The attorney was appointed "to represent Jason's interests"3 in the proceeding. During his interview with the court appointed counsel, Jason challenged the accuracy of the information in the guardianship petition. Following the interview, counsel submitted a report to the probate court saying, "it is impossible to know whether or not Jason is incompetent," and went as far as to suggest that appointing Jason's mother as his guardian would be "reasonable." The court appointed Jason's mother as his guardian.

On appeal, other counsel represented Jason. They argued that Jason was deprived of effective counsel because his prior attorney acted as guardian ad litem and not legal counsel.

The Supreme Court of New Hampshire reversed. They held that Jason was deprived of full assistance of legal counsel to represent his interests in the guardianship proceeding. The court held that Jason's court-appointed lawyer "blurred the boundaries" between the roles of legal counsel and guardian ad litem. The court wrote:

The right to legal counsel for any person for whom a guardianship is sought "shall be absolute and unconditional."4 Even when an attorney is appointed to rep resent an allegedly incapacitated person, "the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client"5 At a minimum, the lawyer must "develop a strategy, in collaboration with the client, for solving legal problems of the client."6

Dealing with an allegedly impaired client presents problems for which there are often not clear guidelines. Attorneys must be wary of these uncertainties and particularly the blurred boundaries between the roles of legal counsel and guardian ad litem. This article discusses this brief but important case. First, it will analyze current New Hampshire law and Rules of Professional Responsibility and the latent ambiguities only partly resolved by the Henderson holding. Second, it will briefly consider whether the current revised A.B.A. Model Rule would clarify the duties of a lawyer in guardianship or commitment proceedings. Finally it will suggest that most decided cases, including Henderson, correctly treat such proceedings as special cases requiring stricter rules than either the New Hampshire or current A.B.A. Rules.


Sometimes people are (or appear to be) unable to make decisions or resolve problems on their own. The law recognizes varying standards of incapacity for various purposes.7 Persons of very limited capacity may marry or make valid wills8 or be tried for a crime,9 and may do so despite the appointment of a guardian.10 When there is a risk of harm due to an inability to manage physical needs or financial affairs, courts have traditionally appointed a guardian,11 a concept that has been traced back to ancient Rome.12

In the United States, guardianship provisions vary. Socio-economic forces, including increases in life expectancy as well as changes in family structure and transmission of wealth, have influenced and continue to influence guardianship laws. 13 Over the last decade, many jurisdictions reformed their laws to protect individuals subject to competency proceedings.14 For example, in New Hampshire, the relevant definition of incapacity requires finding a likelihood of "substantial harm,"15 but to appoint a guardian the court must also find that guardianship is necessary, there is no alternative, and "guardianship is the least restrictive form of intervention."16

Notwithstanding modern reforms, guardianship is a grave restriction of personal liberty requiring proof beyond a reasonable doubt in an adversary proceeding.17 To make this meaningful, the legislature has provided for an unqualified right to counsel.

In Henderson the court appointed an attorney to represent Jason but not a guardian ad litem. Under RSA 464-A: 6, the right to legal counsel for any person for whom guardianship is sought "shall be absolute and unconditional." If the proposed ward does not have his own counsel the court will appoint counsel for him immediately upon filing a petition for guardianship of that person. Despite the possible incapacity of the proposed ward to contract for representation, the Rules of Professional Conduct apply and expressly contemplate "as far as reasonably possible... a normal client-lawyer relationship."18

A court may also appoint a guardian ad litem to represent the best interest or rights of a minor or an incapacitated person in the case. The guardian must be competent and disinterested.19 While often members of the Bar, guardians ad litem in New Hampshire are subject to separate and different rules of practice adopted by the Supreme Court.20 (GAL Rules). Although the rules state that the "GAL shall provide competent representation to a child or represented person,"21 the guardian is not an advocate for either side of the case, and is bound to act "in the best interests"22 of the incapacitated person. A GAL may "reach an independent conclusion on what is in the best interest of the ... represented person" and consideration of the "preferences of the...represented person" is permitted, not required.23

This is where the roles may blur as they did in Henderson. Lawyers are trained to perform as counselors and advocates. A lawyer's conduct is governed by a code of professional ethics. Guardians ad litem are often trained as lawyers first and then take the role of GALs as part of their careers. As guardians ad litem, however, lawyers are called upon to fulfill significantly different roles in the litigation process than they fulfill as lawyers, and their conduct is regulated by other, sometimes inconsistent, rules. The GAL's obligation is to look out for the best interest of the incapacitated person even if it is adverse to the wishes of that person. A GAL's job is to serve as fact-finder for the court. The GAL's functions are not the same as the lawyer's normal responsibility to be a zealous advocate for a client.24 Under the current N.H. Rules of Professional Conduct, an attorney appointed under RSA 464-A, with one apparent exception discussed below, may not act contrary to a client's lawful wishes.

The lawyer's role in a guardianship proceeding is generally the same as in any other. As the Henderson court stated, a lawyer must, "at a minimum, ... 'develop a strategy, in collaboration with the client, for solving the legal problems of the client.'"25

Counsel in this case acted independently of the client and took a position in court that was clearly contrary to the client's wishes. Indeed it is not clear that counsel had ever consulted with Jason to inform him what position she would take in court on his behalf. Because counsel acted independently, the court did not explore the meaning of "collaboration." Nor did the court specifically invoke Rule 1.2 (a): "A lawyer shall abide by a client's decisions concerning the objectives of representation...." Indeed, there is a basis for arguing that, in the right factual situation, an attorney may override an apparently disabled client's decisions about guardianship.

Rule 1.14 supplements Rule 1.2 (a) with regard to a lawyer's duty to incapacitated clients:

(a) When a client's ability to make adequately considered decisions in connection with the representation is impaired, whether because of minority, mental disability or for some other reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client. The client's impairment shall also be considered in determining the adequacy of consultation.

(b) A lawyer may seek the appointment of a guardian or take other protective action with respect to a client, only when the lawyer reasonable believes that the client cannot adequately act in the client's own interest. (emphasis added)

There is a basis for the argument that, in the right factual situation, an attorney, invoking the provision of Rule 1.1.4 (b), may override Rules 1.2 (a) and 1.14 (a) and take a position clearly contrary to an apparently disabled client's decisions about guardianship.

Rule 1.14 is identical to the pre-2002 A.B.A. Model Rule but for the second sentence of section (a), added by the New Hampshire drafters.26 While the rule applies to all attorney-client relationships, this article deals only with litigation where the client's capacity is directly at issue.

Rule 1.14 (b) authorizes a lawyer for an incapacitated client to seek the appointment of a guardian or take other protective action with respect to a client when the lawyer concludes that the client is unable to act in the client's own interest. However, if the client can make adequate decisions regarding representation, the lawyer must advocate on behalf of the client's objectives. It is interesting when applied to In Re Henderson because if the attorney did reasonably believe that the client could not act on his own behalf, the lawyer presumably could take the step to "protect" the client and suggest that the guardianship was "reasonable." However, the facts do not seem to portray that. The attorney claimed "it is impossible to know whether or not Jason is incompetent."27 Thus the roles were blurred when the attorney violated Rule 1.14 and 1.2 by concluding and advising that it would be reasonable for the court to appoint his mother as temporary guardian. The rule allows a lawyer to take "protective action," but only when counsel believes the client is unable to "adequately act in the client's own interest."28 There was no definitive evidence that Jason could not make his own decisions. The lawyer found Jason to be a "troubled thirty-one year old young man" and did not have a definite opinion as to whether he was he was competent.29 There was no excuse for the attorney to substitute her judgment of Jason's interests for his.

The New Hampshire Supreme Court did not determine whether Rule 1.14 (b) applies in RSA 464-a proceedings . This is the harder and more important question - may a lawyer invoke Rule 1.14 (b) and act contrary to "a client's decisions concerning the objectives of representation" in a proceeding where the client's capacity is the ultimate issue? The tone of the Henderson opinion suggests that the lawyer may not act contrary to a client's decisions in such a proceeding. I will argue below that a lawyer has the affirmative duty to abide by a client's decisions concerning the objectives of representation in a guardianship proceeding even though, by its literal terms, it New Hampshire's rule seems to permit what many would consider a betrayal of the client.

The original A.B.A. Rule 1.14 has long been the subject of academic and professional criticism.30 The tension between sections (a) and (b) has been recognized as embodying competing views- zealous advocacy vs. necessary paternalism. The original official comment included a statement that "the lawyer must often act as a de facto guardian."31 The official comments were followed by sixteen pages of "Legal Background"32 largely cataloging competing philosophies and identifying dilemmas to support the official comment that "the lawyer's position in such cases is an unavoidably difficult one."33 One of the problems noted was that "the information leading the lawyer to question the client's competency is usually privileged," meaning that protective action could lead to violation of Rule 1.6's confidentiality requirements.34 (Possible breaches of the duty of confidentiality were not raised in Henderson.)


In 1997 the A.B.A. established a Commission on Evaluation of the Rules of Professional Conduct, commonly called the Ethics 2000 Commission. One of the results was a new Rule 1.14, adopted by the House of Delegates in February of 2002. The new text provides:

(a) When 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.

(b) When the lawyer reasonably believes that the client has diminished capacity, is at risk of substantial physical, financial or other harm unless action is taken and cannot adequately act in the client's own interest, the lawyer may take reasonably necessary protective action, including consulting with individuals or entities that have the ability to take action to protect the client and, in appropriate cases, seeking the appointment of a guardian ad litem, conservator or guardian.

(c) Information relating to the representation of a client with diminished capacity is protected by Rule 1.6. When taking protective action pursuant to paragraph (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.

The language is now that of "diminished capacity" rather than mental disease. Permission to act independently or contrary to the client's wishes is more defined, and limited to cases where there is a substantial risk of harm rather than one where the attorney "believes that the client cannot adequately act in the client's own interest." Limited disclosure of confidential information is expressly permitted in such cases. The reference to lawyers sometimes necessarily acting as "de facto guardians" was removed from the Comments. While generally seen as an improvement,35 the new rule continues to straddle the advocate vs. guardian dispute and has been criticized as unworkable in many situations.36 In particular, like its predecessor (and the current N.H. Rule), it appears to leave open the possibility that appointed counsel in proceedings specifically directed at involuntary guardianship or commitment could invoke section (b) to override the client's wishes.


The drafters of the A.B.A. and N.H. Rules have not distinguished among types of cases, but the courts have. While there is some older authority for outright paternalism,37 most courts have insisted on zealous advocacy from counsel in guardianship and commitment proceedings,38 sometimes holding that it is a requirement of constitutional due process.39

Their reasoning is simple. These are proceedings about capacity, not suits on other matters or office practice. They are specifically structured for a determination of the facts and any necessary remedies by the court. Such an adversary proceeding is crucially dependent on advocacy both to reveal relevant facts and to assure statutory and constitutional requirements are actually met. As stated by a Mary land court:

The duties of an attorney may at times directly conflict with the duties of a guardian ad litem. It is the role of an attorney to explain the proceedings to his client and advise him of his rights, keep his confidences, advocate his position, and protect his interests. Due process demands nothing less, particularly, as here, when the alleged disabled person faces significant and usually permanent loss of his basic rights and liberties. ... In guardianship proceedings, effective representation by counsel ensures that the proper procedures are followed by the court, that the guardianship is imposed only if the petitioner proves by "clear and convincing evidence" that such a measure is necessary and there is no reasonable alternative, that the guardianship remains no more restrictive than is warranted, that no collusion exists between the court appointed investigator and petitioner, and that the client's right to appeal is exercised, if appropriate.40

A Florida court relied on the elementary principle that, until the court (not the lawyer) has determined that the client lacks capacity after a proper hearing, the client should be presumed to have the right to control representation, including choice of counsel.41 Even in a case where a court rule authorized counsel to make a GAL-type report, the New Jersey Supreme Court instructed counsel to "advocate her choice, as long as it does not pose unreasonable risks for her health, safety, and welfare,"42 apparently limited the lawyer's other options to suggesting the appointment of a separate guardian ad litem, and observed that in such proceedings determination of the client's best interest was the task of the court. This is as far as the modern cases go- a theoretical limit on the obligation to advocate the client's position for possible extreme cases and the practical instruction to do no more than suggest appointment of a guardian ad litem.

Without expressly addressing the section (b) option for "protective action" in Henderson, the New Hampshire Supreme Court referred to Rule 1.14 (a) when saying "[e]ven when representing a client with a disability, legal counsel must, as far as reasonably possible, carry out the client's decisions." (emphasis added)43 The qualifying phrase is the same as in Rule 1.14 (a). It apparently leaves some room for independent action, but the entire opinion emphasizes the differences between the role of counsel and guardian and their separate statutory bases. It seems that the N.H. court, like nearly all others, has a strong preference for traditional advocacy by lawyers in guardianship proceedings and clear separation of the role of guardian ad litem. An attorney in such a case would likely find it difficult to justify violation of a client's lawful wishes by invoking Rule 1.14 (b). Yet the rule is there, and Henderson does not expressly limit it in cases under RSA 464-A or similar proceedings.44 However, in such cases prudent counsel will deviate from the normal rules of loyalty and confidentiality only when convinced that there is a threat of serious harm, and then only to the extent of suggesting the appointment of a guardian ad litem.


It is clear that Jason's attorney did not carry out the client's decisions or advocate Jason's view of his interests. The lawyer had an ethical duty to follow Jason's choice, which was to oppose the petition. The lawyer acted outside the scope of representation by acting like a guardian ad litem. However, under the literal terms of our current rules the duty to abide by a client's choice of objectives is significantly qualified based on the lawyer's beliefs about the client's capacities. This qualification, even as tightened in the most recent A.B.A. Model Rule, is unsuited to guardianship or commitment proceedings. As held by courts in other states and implied in Henderson, such proceedings are designed to protect clients who need it and require zealous advocacy to properly function. Counsel may suggest appointment of a guardian ad litem, but not assume that role. In this sort of case, the boundary is bright, not blurred.


  1. In Re Guardianship of Henderson, 150 N.H. 349 (2003).
  2. Id. at 351.
  3. Id. at 349. The Supreme Court used traditional but ambiguous jargon- the statute requires appointment of counsel "for the proposed ward," not his or her "interests." RSA 464-A:6, I.
  4. Id. at 350, quoting RSA 464-A:6, I.
  5. Id. quoting N.H. R. Prof. Conduct 1.14(a) (2004).
  6. Id. quoting N.H. R. Prof. Conduct 1.1(c)(3) (2004).
  7. For example, the successive Restatements of Trusts have recognized three increasingly demanding levels of capacity- testamentary, conveyance, and contractual. Restatement 2d (Trusts) 19, 20, and 22; Restatement 3d (Trusts) 11 and comments.
  8. In Estate of Rainey 799 P.2d 786 (Kansas 1990) a ward was held to have testamentary capacity allowing him to successfully retaliate by disinheriting the children who succeeded in the guardianship action.
  9. For a discussion of the attorney's role in representing the disabled criminal defendant see Christopher Slobogin & Amy Mashburn, The Criminal Defense Lawyer's Fiduciary Duty to Client with Mental Disability, 68 FORDHAM L. REV. 1581, 1618-19 (2000).
  10. RSA 464-A:9, IV provides: IV. No person determined to be incapacitated thus requiring the appointment of a guardian of the person and estate, or the person, or the estate, shall be deprived of any legal rights, including the right to marry, to obtain a motor vehicle operator's license, to testify in any judicial or administrative proceedings, to make a will, to convey or hold property, or to contract, except upon specific findings of the court. The court shall enumerate in its findings which legal rights the proposed ward is incapable of exercising.
  11. See generally RSA 464-A, and particularly 464-A:2, XI, the definition of incapacity for guardianship purposes.
  12. See Samuel J. Brakel et al., The Mentally Disabled and the Law (3d ed. 1985).
  13. See Jan E. Rein, Preserving Dignity and Self-Determination of the Elderly in the Face of Competing Interests and Grim Alternatives: A Proposal for Statutory Refocus and Reform, 60 Geo. Wash. L. Rev. 1818, 1848-59 (1992).
  14. Id.
  15. RSA 464-A:2, XI.
  16. RSA 464-A:9, III.
  17. Id.
  18. N.H. R. Prof. Conduct 1.14 (2004)
  19. N.H. Rev. Stat. Ann. 464-A:41(I) (Supp. 2002).
  20. System-wide Guardian Ad litem Application, Certification and Practice, (hereinafter GAL Rules). They are expressly made applicable to proceedings under RSA 464-A under rule 1.1.
  21. GAL Rules, 2.4.1 (a).
  22. GAL Rules, 2.4.1 (b) (3) and (6).
  23. GAL Rules, 2.4.2 (b); See generally David R. Katner, Coming to Praise, Not to Bury, the New A.B.A. Standards of Practice for Lawyers Who Represent Children in Abuse and Neglect Cases, 14 Geo. J. Legal Ethics 103, 122 (2000).
  24. See Tara Lea Muhlhauser, From "Best" to "Better": The Interests of Children and the Role of a Guardian Ad Litem, 66 N.D. L. Rev. 633, 633 (1990).
  25. Henderson at 350 citing N.H. R. Prof. Conduct 1.1(c) (2004).
  26. NEW HAMPSHIRE RULES OF PROFESSIONAL CONDUCT comment to Rule 1.14 (2002).
  27. In Re Guardianship of Henderson, 150 N.H. 349 (2003).
  28. N.H. R. Prof. Conduct 1.14 (2004).
  29. In Re Guardianship of Henderson, 150 N.H. 349 (2003).
  30. A brief summary of its history can be found in Gallagher and Kearney, Representing a Client with Diminished Capacity: Where the Law Stands and Where it Needs to Go, 16 Geo. J. Legal Ethics 597 (2003).
  31. Rule 1.14, comment 2, Annotated Model Rules of Professional Conduct, 3d ed., (1996) Rule 1.14, comment 2, p.215.
  32. Id. at 216-232.
  33. Id., comment 5, p. 219.
  34. Id. at 223.
  35. See, e.g. Elizabeth Laffitte, NOTE: Model Rule 1.14: The Well-Intended Rule Still Leaves Some Questions Unanswered, 17 Geo. J. Legal Ethics 313 (Winter 2004).
  36. Gallagher and Kearney, Representing a Client with Diminished Capacity: Where the Law Stands and Where it Needs to Go, 16 Geo. J. Legal Ethics 597 (2003).
  37. In re Basso, 299 F.2d 933 (D.C. Cir. 1962) (counsel who reported to the court that his client needed treatment was praised by the Circuit Court of Appeals).
  38. In re Lee, 754 A. 2d 426 (Md. Ct. Spec. App. 2000); In re M.R., 638 A.2d 1274 (N.J. 1994); In re Hutchinson, 421 A. 2d 261 (Pa. Super. Ct. 1980; Quesnell v. State, 517 P.2d 568 (Wash. 1974); State ex rel. Hawks v. Lazaro, 202 S.E. 109 (W.Va. 1974); State ex rel. Memmel v. Mundy, 249 N.W.2d 573 (Wis. 1977).
  39. Lessard v. Schmidt, 349 F. Supp. 1078 (E.D. Wis 1972); Suzuki v. Quisenberry, 411 F. Supp. 1113 (D. Haw. 1976).
  40. In re Lee, 754 A. 2d 426, 439 (Md. Ct. Spec. App. 2000) (internal citations and quotations omitted).
  41. Holmes v. Burchett, 766 So.2d 387 (Fla. Dist. Ct. App. 2000).
  42. In re M.R., 638 A.2d 1274, 1286 (N.J. 1994)
  43. Henderson at 350.
  44. As this article was being finalized, the N.H. Supreme Court adopted a temporary amendment to its Rule 32-A which embodies the pure advocacy model for counsel in appeals in guardianship or involuntary commitment cases.


Amber Brandis, Class of 2005, Franklin Pierce Law Center, Concord, New Hampshire.



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