Multiple Attorneys Removed from Cases Due to Conflicts of Interest with Guardian Oversight and Attorney-Hospital Relationships

In two recent opinions, Michigan and South Carolina courts have removed attorneys from multiple cases where investigations revealed that they were abusing their powers as clients’ guardians and conservators. Investigations revealed several ethical violations, including an undisclosed agreement in which a hospital would pay the attorney to petition for guardianship of patients. Both attorneys also abused their power by allowing family members to move into the homes of hospitalized clients without their knowledge or consent. In both opinions, the court noted that the attorney’s actions were clear violations of, among other rules, the conflicts of interest rules under 1.7.

These two cases are among hundreds around the country that prompted a recent report in The New Yorker. The article focused on a rash of cases in Clark County, Nevada, in which several elderly individuals were removed from their homes without notice or legal representation. Rather than representing clients who truly needed their help, attorneys were following a routine of temporary guardianship in pursuit of easy payouts. The ethically violative behavior of these attorneys included requests that courts grant them authority to intervene immediately based on vague descriptions of their ward’s medical conditions, minimal physician reports, and reports that wards were too incapacitated to attend a court hearing.

Nevada has begun to address this problem by enacting legislation that entitles all wards of the state to legal representation. For the time being, while these measures are not a cure all for the growing misconduct of certain attorneys, this legislation may provide relief for the people who need it most.

Read more on this issue here.

Florida Third DCA Finds No Conflict Where Attorney Sues Former Client

A decision from the Third District Court of Appeals found that two attorneys may continue to oppose each other in litigation even though one once represented the other. The court noted that there was no conflict under Florida Rule of Professional Conduct 4-1.9 because the current litigation involved a completely separate matter, ended years before the current litigation was filed, and the current litigation would not require one of the attorneys to “attack work that he performed for [his former client].”

The opinion gave leave to Miami attorney Andy Hall to pursue a lawsuit against his former client Jeremy Alters. Hall was hired by Gustavo and Alfredo Villoldo to take over Alter’s terrorism litigation against Cuba and Fidel Castro after deficiencies were found in the $1.1 billion judgment Alters won for his clients. Around the same time, Alters hired Hall to represent him in an entirely separate matter – a dispute over fees in a multi-million dollar class action lawsuit against Bank of America.

Despite the fact that Hall was no longer representing Alters in the Bank of America dispute by the time Hall sued Alters on behalf of the Villoldos, Alters moved to recuse Hall, relying on a 1988 Florida Appellate case discussing Florida Rule of Professional Conduct 4-1.9. Alters argued that the 1988 case expanded Rule 4-1.9 to prohibit suing a former client when doing so would violate the principle of client loyalty or create an appearance of impropriety. However, the court denied Alters’ motion, noting  that the 1988 case simply explained why the rule could apply even when a client’s reasonable expectation of confidentiality was not at stake.

Read the full opinion here.

Written Consents Now Required When a Lawyer Subpoenas a Current Client for Another Client’s Lawsuit

According to a formal opinion issued by the New York City bar’s ethics committee, an attorney who must subpoena a current client for another client’s lawsuit typically has a conflict of interest requiring that the attorney secure informed written consent from both clients.

In considering the issue, the committee reasoned that testifying or producing documents in response to a subpoena are inconveniences that entail loss of money and time for the client subpoenaed. Such requests advanced through a coerced discovery may affect a client’s loyalty towards his or her lawyer. As such, subpoenaing a client involves representation of “differing interests” under Rule 1.7(a).

To prevent a violation of Rule 1.7, the committee advised attorneys to implement conflict-checking procedures before preparing and serving subpoenas. If a conflict is discovered, attorneys must obtain informed consents from both parties. The committee further advised attorneys to run a conflict check prior to being retained if it is apparent that current clients will be subject to discovery. If a conflict is preemptively discovered, the attorney must obtain informed consent from both parties, limit the scope of the representation to exclude the attorney from obtaining discovery, or decline the representation altogether.

Read the full opinion here