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Center for Professional Responsibility



Recent ABA Formal Ethics Opinion Headnotes

Formal Opinion 96-403
Client Under a Disability
August 2, 1996

A lawyer who reasonably determines that his client has become incompetent to handle his own affairs may take protective action on behalf of the client, including petitioning for the appointment of a guardian. Withdrawal is appropriate only if it can be accomplished without prejudice to the client. The protective action should be the least restrictive under the circumstances. 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. With proper disclosure to the court of the lawyer’s self-interest, the lawyer may recommend or support the appointment of a guardian who the lawyer reasonably believes would be a fit guardian, even if the lawyer anticipates that the recommended guardian will hire the lawyer to handle the legal matters of the guardianship estate. However, a lawyer with a disabled client should not attempt to represent a third party petitioning for a guardianship over the lawyer’s client.


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