Role of the Alleged Disabled Adult’s Attorney
and Related Ethical Issues 1
By: Thomas A. Pasquesi, partner
Lesser, Lutrey, Pasquesi & Howe, LLP
191 E. Deerpath Rd., Ste. 300
Lake Forest, IL 60045
Phone: 847-295-8800
[email protected]
1. Relevant provisions of the Probate Code (755 ILCS 5/11a et.,seq.)
5/11a-10. Procedures preliminary to hearing.
(a) Upon the filing of a petition pursuant to Section 11a-8, the court shall set a date and
place for hearing to take place within 30 days. The court shall appoint a guardian ad litem
to report to the court concerning the respondent's best interests consistent with the
provisions of this Section, except that the appointment of a guardian ad litem shall not be
required when the court determines that such appointment is not necessary for the
protection of the respondent or a reasonably informed decision on the petition. If the
guardian ad litem is not a licensed attorney, he or she shall be qualified, by training or
experience, to work with or advocate for the developmentally disabled, mentally ill,
physically disabled, the elderly, or persons disabled because of mental deterioration,
depending on the type of disability that is alleged in the petition. The court may allow the
guardian ad litem reasonable compensation. The guardian ad litem may consult with a
person who by training or experience is qualified to work with persons with a
developmental disability, persons with mental illness, or physically disabled persons, or
persons disabled because of mental deterioration, depending on the type of disability that
is alleged. The guardian ad litem shall personally observe the respondent prior to the
hearing and shall inform him orally and in writing of the contents of the petition and of
1
(These seminar materials are intended to assist readers as a learning aid but do not constitute legal advice and may
omit relevant information or analyses that may affect their utility in a given situation. Diligent effort was made to
insure the accuracy of the materials, but the author assumes no responsibility for any reader’s reliance on them and
encourages all readers to verify all original sources before applying them and to consider all other related
consequences and analyses that may be appropriate in the applicable circumstances.) © 2016 Thomas A. Pasquesi.
All Rights Reserved.
2016 GAL Training
May 20, 2016
CH 3 Page 1
his rights under Section 11a-11. The guardian ad litem shall also attempt to elicit the
respondent's position concerning the adjudication of disability, the proposed guardian, a
proposed change in residential placement, changes in care that might result from the
guardianship, and other areas of inquiry deemed appropriate by the court.
Notwithstanding any provision in the Mental Health and Developmental Disabilities
Confidentiality Act or any other law, a guardian ad litem shall have the right to inspect
and copy any medical or mental health record of the respondent which the guardian ad
litem deems necessary, provided that the information so disclosed shall not be utilized for
any other purpose nor be redisclosed except in connection with the proceedings. At or
before the hearing, the guardian ad litem shall file a written report detailing his or her
observations of the respondent, the responses of the respondent to any of the inquires
detailed in this Section, the opinion of the guardian ad litem or other professionals with
whom the guardian ad litem consulted concerning the appropriateness of guardianship,
and any other material issue discovered by the guardian ad litem. The guardian ad litem
shall appear at the hearing and testify as to any issues presented in his or her report.
(b) The court (1) may appoint counsel for the respondent, if the court finds that the
interests of the respondent will be best served by the appointment, and (2) shall appoint
counsel upon respondent's request or if the respondent takes a position adverse to that of
the guardian ad litem. The respondent shall be permitted to obtain the appointment of
counsel either at the hearing or by any written or oral request communicated to the court
prior to the hearing. The summons shall inform the respondent of this right to obtain
appointed counsel. The court may allow counsel for the respondent reasonable
compensation.
(c) If the respondent is unable to pay the fee of the guardian ad litem or appointed
counsel, or both, the court may enter an order for the petitioner to pay all such fees or
such amounts as the respondent or the respondent's estate may be unable to pay.
However, in cases where the Office of State Guardian is the petitioner, consistent with
Section 30 of the Guardianship and Advocacy Act, where the public guardian is the
petitioner, consistent with Section 13-5 of the Probate Act of 1975, where an adult
protective services agency is the petitioner, pursuant to Section 9 of the Adult Protective
Services Act, or where the Department of Children and Family Services is the petitioner
under subparagraph (d) of subsection (1) of Section 2-27 of the Juvenile Court Act of
1987, no guardian ad litem or legal fees shall be assessed against the Office of State
Guardian, the public guardian, the adult protective services agency, or the Department of
Children and Family Services.
(d) The hearing may be held at such convenient place as the court directs, including at a
facility in which the respondent resides.
(e) Unless he is the petitioner, the respondent shall be personally served with a copy of
the petition and a summons not less than 14 days before the hearing. The summons shall
be printed in large, bold type and shall include the following notice:
2016 GAL Training
May 20, 2016
CH 3 Page 2
NOTICE OF RIGHTS OF RESPONDENT
You have been named as a respondent in a guardianship petition asking that you be
declared a disabled person. If the court grants the petition, a guardian will be appointed
for you. A copy of the guardianship petition is attached for your convenience.
The date and time of the hearing are:
The place where the hearing will occur is:
The Judge's name and phone number is:
If a guardian is appointed for you, the guardian may be given the right to make all
important personal decisions for you, such as where you may live, what medical
treatment you may receive, what places you may visit, and who may visit you. A
guardian may also be given the right to control and manage your money and other
property, including your home, if you own one. You may lose the right to make these
decisions for yourself.
You have the following legal rights:
(1) You have the right to be present at the court hearing.
(2) You have the right to be represented by a lawyer, either one that you retain, or one
appointed by the Judge.
(3) You have the right to ask for a jury of six persons to hear your case.
(4) You have the right to present evidence to the court and to confront and cross-examine
witnesses.
(5) You have the right to ask the Judge to appoint an independent expert to examine you
and give an opinion about your need for a guardian.
(6) You have the right to ask that the court hearing be closed to the public.
(7) You have the right to tell the court whom you prefer to have for your guardian.
You do not have to attend the court hearing if you do not want to be there. If you do not
attend, the Judge may appoint a guardian if the Judge finds that a guardian would be of
benefit to you. The hearing will not be postponed or canceled if you do not attend.
IT IS VERY IMPORTANT THAT YOU ATTEND THE HEARING IF YOU DO NOT
WANT A GUARDIAN OR IF YOU WANT SOMEONE OTHER THAN THE PERSON
NAMED IN THE GUARDIANSHIP PETITION TO BE YOUR GUARDIAN. IF YOU
DO NOT WANT A GUARDIAN OF IF YOU HAVE ANY OTHER PROBLEMS, YOU
SHOULD CONTACT AN ATTORNEY OR COME TO COURT AND TELL THE
JUDGE.
Service of summons and the petition may be made by a private person 18 years of age or
over who is not a party to the action.
(f) Notice of the time and place of the hearing shall be given by the petitioner by mail or
in person to those persons, including the proposed guardian, whose names and addresses
2016 GAL Training
May 20, 2016
CH 3 Page 3
appear in the petition and who do not waive notice, not less than 14 days before the
hearing.
(755 ILCS 5/11a-2) (from Ch. 110 1/2, par. 11a-2)
Sec. 11a-2. "Person with a disability" defined.) "Person with a disability" means
a person 18 years or older who (a) because of mental deterioration or physical
incapacity is not fully able to manage his person or estate, or (b) is a person
with mental illness or a person with a developmental disability and who
because of his mental illness or developmental disability is not fully able to
manage his person or estate, or (c) because of gambling, idleness, debauchery
or excessive use of intoxicants or drugs, so spends or wastes his estate as to
expose himself or his family to want or suffering, or (d) is diagnosed with fetal
alcohol syndrome or fetal alcohol effects.
(755 ILCS 5/11a-3) (from Ch. 110 1/2, par. 11a-3)
Sec. 11a-3. Adjudication of disability; Power to appoint guardian.
(a) Upon the filing of a petition by a reputable person or by the alleged
person with a disability himself or on its own motion, the court may adjudge a
person to be a person with a disability, but only if it has been demonstrated by
clear and convincing evidence that the person is a person with a disability as
defined in Section 11a-2. If the court adjudges a person to be a person with a
disability, the court may appoint (1) a guardian of his person, if it has been
demonstrated by clear and convincing evidence that because of his disability he
lacks sufficient understanding or capacity to make or communicate responsible
decisions concerning the care of his person, or (2) a guardian of his estate, if it
has been demonstrated by clear and convincing evidence that because of his
disability he is unable to manage his estate or financial affairs, or (3) a guardian
of his person and of his estate.
(b) Guardianship shall be utilized only as is necessary to promote the wellbeing of the person with a disability, to protect him from neglect, exploitation,
or abuse, and to encourage development of his maximum self-reliance and
independence. Guardianship shall be ordered only to the extent necessitated by
the individual's actual mental, physical and adaptive limitations.
5/11a-11. Hearing.
(a) The respondent is entitled to be represented by counsel, to demand a jury of 6 persons,
to present evidence, and to confront and cross-examine all witnesses. The hearing may be
closed to the public on request of the respondent, the guardian ad litem, or appointed or
other counsel for the respondent. Unless excused by the court upon a showing that the
respondent refuses to be present or will suffer harm if required to attend, the respondent
shall be present at the hearing.
2016 GAL Training
May 20, 2016
CH 3 Page 4
(b) (Blank).
(c) (Blank).
(d) In an uncontested proceeding for the appointment of a guardian the person who
prepared the report required by Section 11a-9 will only be required to testify at trial upon
order of court for cause shown.
(e) At the hearing the court shall inquire regarding: (1) the nature and extent of
respondent's general intellectual and physical functioning; (2) the extent of the
impairment of his adaptive behavior if he is a person with a developmental disability, or
the nature and severity of his mental illness if he is a person with mental illness; (3) the
understanding and capacity of the respondent to make and communicate responsible
decisions concerning his person; (4) the capacity of the respondent to manage his estate
and his financial affairs; (5) the appropriateness of proposed and alternate living
arrangements; (6) the impact of the disability upon the respondent's functioning in the
basic activities of daily living and the important decisions faced by the respondent or
normally faced by adult members of the respondent's community; and (7) any other area
of inquiry deemed appropriate by the court.
(f) An authenticated transcript of the evidence taken in a judicial proceeding concerning
the respondent under the Mental Health and Developmental Disabilities Code is
admissible in evidence at the hearing.
(g) If the petition is for the appointment of a guardian for a disabled beneficiary of the
Veterans Administration, a certificate of the Administrator of Veterans Affairs or his
representative stating that the beneficiary has been determined to be incompetent by the
Veterans Administration on examination in accordance with the laws and regulations
governing the Veterans Administration in effect upon the date of the issuance of the
certificate and that the appointment of a guardian is a condition precedent to the payment
of any money due the beneficiary by the Veterans Administration, is admissible in
evidence at the hearing.
The basic ADLs generally consist of self-care tasks that include, but not limited to:
•
•
•
•
•
•
Functional mobility, often referred to as transferring (moving from one place to
another while performing activities). For most people, functional mobility is
measured as the ability to walk, get in and out of bed, and get into and out of a
chair; the broader definition above is useful for people with different physical
abilities who are still able to get around independently.
Bathing and showering (washing the body)
Dressing
Self-feeding (not including cooking or chewing and swallowing)
Personal hygiene and grooming (including brushing/combing/styling hair)
Toilet hygiene (getting to the toilet, cleaning oneself, and getting back up)
2016 GAL Training
May 20, 2016
CH 3 Page 5
One way to think about basic ADLs is that they are the things many people do when they
get up in the morning and get ready to go out of the house: get out of bed, go to the toilet,
bathe, dress, groom, and eat.
5/11a-12. Order of appointment.
(a) If basis for the appointment of a guardian as specified in Section 11a-3 is not found,
the court shall dismiss the petition.
(b) If the respondent is adjudged to be disabled and to lack some but not all of the
capacity as specified in Section 11a-3, and if the court finds that guardianship is
necessary for the protection of the disabled person, his or her estate, or both, the court
shall appoint a limited guardian for the respondent's person or estate or both. The court
shall enter a written order stating the factual basis for its findings and specifying the
duties and powers of the guardian and the legal disabilities to which the respondent is
subject.
(c) If the respondent is adjudged to be disabled and to be totally without capacity as
specified in Section 11a-3, and if the court finds that limited guardianship will not
provide sufficient protection for the disabled person, his or her estate, or both, the court
shall appoint a plenary guardian for the respondent's person or estate or both. The court
shall enter a written order stating the factual basis for its findings.
(d) The selection of the guardian shall be in the discretion of the court, which shall give
due consideration to the preference of the disabled person as to a guardian, as well as the
qualifications of the proposed guardian, in making its appointment. However, the
paramount concern in the selection of the guardian is the best interest and well-being of
the disabled person.
However, a guardian’s authority is limited by statute. In particular, the following
provisions should be kept in mind:
(755 ILCS 5/11a-17) (from Ch. 110 1/2, par. 11a-17)
Sec. 11a-17. Duties of personal guardian.
(c) Absent court order pursuant to the Illinois Power of Attorney Act
directing a guardian to exercise powers of the principal under an agency that
survives disability, the guardian has no power, duty, or liability with respect
to any personal or health care matters covered by the agency. This subsection
(c) applies to all agencies, whenever and wherever executed.
(755 ILCS 5/11a-18) (from Ch. 110 1/2, par. 11a-18)
Sec. 11a-18. Duties of the estate guardian.
(e) Absent court order pursuant to the Illinois Power of Attorney Act
directing a guardian to exercise powers of the principal under an agency that
survives disability, the guardian will have no power, duty or liability with
2016 GAL Training
May 20, 2016
CH 3 Page 6
respect to any property subject to the agency. This subsection (e) applies to all
agencies, whenever and wherever executed.
The Order under the Power of Attorney Act these sections refer to is contained in the
Power of Attorney Act, in particular subparagraph (b) below, which states:
(755 ILCS 45/2-10) (from Ch. 110 1/2, par. 802-10)
Sec. 2-10. Agency-court relationship.
(a) Upon petition by any interested person (including the agent), with such notice to
interested persons as the court directs and a finding by the court that the principal lacks
either the capacity to control or the capacity to revoke the agency, the court may construe
a power of attorney, review the agent's conduct, and grant appropriate relief including
compensatory damages.
(b) If the court finds that the agent is not acting for the benefit of the principal in
accordance with the terms of the agency or that the agent's action or inaction has caused
or threatens substantial harm to the principal's person or property in a manner not
authorized or intended by the principal, the court may order a guardian of the principal's
person or estate to exercise any powers of the principal under the agency, including the
power to revoke the agency, or may enter such other orders without appointment of a
guardian as the court deems necessary to provide for the best interests of the principal.
(c) If the court finds that the agency requires interpretation, the court may construe the
agency and instruct the agent, but the court may not amend the agency.
(d) If the court finds that the agent has not acted for the benefit of the principal in
accordance with the terms of the agency and the Illinois Power of Attorney Act, or that
the agent's action caused or threatened substantial harm to the principal's person or
property in a manner not authorized or intended by the principal, then the agent shall not
be authorized to pay or be reimbursed from the estate of the principal the attorneys' fees
and costs of the agent in defending a proceeding brought pursuant to this Section.
(e) Upon a finding that the agent's action has caused substantial harm to the principal's
person or property, the court may assess against the agent reasonable costs and attorney's
fees to a prevailing party who is a provider agency as defined in Section 2 of the Adult
Protective Services Act, a representative of the Office of the State Long Term Care
Ombudsman, the State Guardian, a public guardian, or a governmental agency having
regulatory authority to protect the welfare of the principal.
(f) As used in this Section, the term "interested person" includes (1) the principal or the
agent; (2) a guardian of the person, guardian of the estate, or other fiduciary charged with
management of the principal's property; (3) the principal's spouse, parent, or descendant;
(4) a person who would be a presumptive heir-at-law of the principal; (5) a person named
as a beneficiary to receive any property, benefit, or contractual right upon the principal's
death, or as a beneficiary of a trust created by or for the principal; (6) a provider agency
2016 GAL Training
May 20, 2016
CH 3 Page 7
as defined in Section 2 of the Adult Protective Services Act, a representative of the Office
of the State Long Term Care Ombudsman, the State Guardian, a public guardian, or a
governmental agency having regulatory authority to protect the welfare of the principal;
and (7) the principal's caregiver or another person who demonstrates sufficient interest in
the principal's welfare.
(g) Absent court order directing a guardian to exercise powers of the principal under
the agency, a guardian will have no power, duty or liability with respect to any property
subject to the agency or any personal or health care matters covered by the agency.
(h) Proceedings under this Section shall be commenced in the county where the
guardian was appointed or, if no Illinois guardian is acting, then in the county where the
agent or principal resides or where the principal owns real property.
(i) This Section shall not be construed to limit any other remedies available.
So, in sum, the guardian has no powers over any matter covered by the power of attorney
agency, unless the Court specifically directs the guardian to exercise powers that would
otherwise have been within the purview of the agency; and the Court may even direct the
guardian to revoke the power of attorney.
5/11a-14. Legal disabilities of ward. (a) An order appointing a limited guardian of the
person under this Article removes from the ward only that authority provided under
Section 11a-17 which is specifically conferred on the limited guardian by the order.
(b) An order appointing a limited guardian of the estate under this Article confers on the
limited guardian the authority provided under Section 11a-18 not specifically reserved to
the ward.
(c) The appointment of a limited guardian under this Article shall not constitute a finding
of legal incompetence.
(d) An order appointing a plenary guardian under this Article confers on the plenary
guardian of the person the authority provided under Section 11a-17 and on the plenary
guardian of the estate the authority provided under Section 11a-18.
5/11a-20. Termination of adjudication of disability-Revocation of letters--modification.
(a) Except as provided in subsection (b-5), upon the filing of a petition by or on behalf of
a disabled person or on its own motion, the court may terminate the adjudication of
disability of the ward, revoke the letters of guardianship of the estate or person, or both,
or modify the duties of the guardian if the ward's capacity to perform the tasks necessary
for the care of his person or the management of his estate has been demonstrated by clear
and convincing evidence. A report or testimony by a licensed physician is not a
prerequisite for termination, revocation or modification of a guardianship order under this
subsection (a).
(b) Except as provided in subsection (b-5), a request by the ward or any other person on
the ward's behalf, under this Section may be communicated to the court or judge by any
2016 GAL Training
May 20, 2016
CH 3 Page 8
means, including but not limited to informal letter, telephone call or visit. Upon receipt of
a request from the ward or another person, the court may appoint a guardian ad litem to
investigate and report to the court concerning the allegations made in conjunction with
said request, and if the ward wishes to terminate, revoke, or modify the guardianship
order, to prepare the ward's petition and to render such other services as the court directs.
(b-5) Upon the filing of a verified petition by the guardian of the disabled person or the
disabled person, the court may terminate the adjudication of disability of the ward,
revoke the letters of guardianship of the estate or person, or both, or modify the duties of
the guardian if: (i) a report completed in accordance with subsection (a) of Section 11a-9
states that the disabled person is no longer in need of guardianship or that the type and
scope of guardianship should be modified; (ii) the disabled person no longer wishes to be
under guardianship or desires that the type and scope of guardianship be modified; and
(iii) the guardian of the disabled person states that it is in the best interest of the disabled
person to terminate the adjudication of disability of the ward, revoke the letters of
guardianship of the estate or person, or both, or modify the duties of the guardian, and
provides the basis thereof. In a proceeding brought pursuant to this subsection (b-5), the
court may terminate the adjudication of disability of the ward, revoke the letters of
guardianship of the estate or person, or both, or modify the duties of the guardian, unless
it has been demonstrated by clear and convincing evidence that the ward is incapable of
performing the tasks necessary for the care of his or her person or the management of his
or her estate.
(c) Notice of the hearing on a petition under this Section, together with a copy of the
petition, shall be given to the ward, unless he is the petitioner, and to each and every
guardian to whom letters of guardianship have been issued and not revoked, not less than
14 days before the hearing.
2. Illinois Supreme Court Rules of Professional Conduct Rule 1.14
Rule 1.14. Client With Diminished Capacity
(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.
2016 GAL Training
May 20, 2016
CH 3 Page 9
(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.
3.
Discussion
The appointment by the Court of an attorney for an alleged disabled person (ADP) occurs
under 5/11a-10(b) when: (i) the Court determines the appointment is in the best interests
of the ADP; (ii) if the ADP and the GAL have adverse positons; or (iii) if the ADP
requests an attorney. Under 5/11a-10(c), the fees for the appointed attorney may be paid
by the Petitioner if the assets of the ADP are insufficient.
The ADP is entitled to a jury trial on demand under 5/11a-1(c); and (e) lists the elements
the Petitioner must prove to establish a guardianship for an adult.
Under 5/11a-12 and 14, the Order of Appointment should be limited in scope to address
only the activities the ADP cannot handle himself; unless the Court finds the ADP to be
totally without capacity and that a limited guardianship is inadequate; in which case, the
guardianship is to be plenary.
The Court has the discretion in selecting a guardian that is in the “best interests” of the
ADP, after giving consideration to the ADP’s wishes and the proposed guardian’s
qualifications.
An analysis of the “best interests” standard in relation to guardianships is set out in my
article published in the Illinois Bar Journal (May 2006, vol. 94) entitled “Estate Planning
for Disabled Adults; the Legal Framework”. It is important to keep in mind that under
Illinois law, the standard for a Court making decisions for a ward is to do what is in the
ward’s “best interests”. More specifically, this is determined by looking at all of the
relevant circumstances and the ward’s known preferences and inclinations, and then
deciding to do what the ward would most likely have decided to do if not incapacitated
(subject to the minimum requirement that neither the Court nor a guardian may engage in
any act that is not prudent). This is a subjective standard. Note that it is different from the
objective standard of making a decision for the ward based on what a prudent person
would decide in the same situation, such as that which prevails in California.
Also, when representing an ADP, the attorney should keep in mind Professional Rule of
Conduct 1.14; which requires the attorney to, as far as possible; maintain a “normal
client-lawyer relationship”. From this obligation flow the duties of confidentiality,
zealous representation and so on.
2016 GAL Training
May 20, 2016
CH 3 Page 10
However, the attorney should also remain aware of the circumstances of the appointment.
The attorney has been appointed by the Court, and the Court is spending the ADP’s (and
maybe the Petitioner’s) money to pay the attorney. The attorney should be careful to
respect this situation and keep costs minimized to the extent reasonably practicable. If the
attorney is in doubt about the extent to which the accrual of expense is appropriate, it
may be advisable to seek Court guidance. Ultimately, the attorney may be fully, or
partially, paid or receive no compensation whatsoever. But regardless of the extent of
compensation, the normal attorney-client duties apply.
The concern for the rights of the ADP stem from the Constitution.
The Fourteenth Amendment to the U.S. Constitution requires that due-process protections
be afforded anyone who is threatened with loss of liberty or property. An ADP may lose
the right to: manage assets, vote, marry, divorce, enter into contracts, decide where to live
and make health care decisions. This is especially significant for ADPs who are only
partially disabled.
In Lassiter v. Department of Social Services of Durham County 452 U.S. 18 (1981), the
U.S. Supreme Court indicated that while due process cannot be precisely defined, the
process must provide “fundamental fairness” considering the relevant circumstances and
interests. In a guardianship setting, fundamental fairness should take into account the
ADP’s circumstances, preferences and interests; balanced against the state’s right to
protect those who cannot protect themselves. If the risk to the ADP of living at home is
too great, a guardian could be appointed to move the ADP into an assisted living
arrangement; or the Court may order the guardian to arrange for home health care
services, so the ADP can remain at home.
So, in representing the ADP, the appointed attorney should meet with the ADP, his
family, friends and care workers as often as necessary to clearly understand the APD’s
circumstances, perspectives, preferences and desires. Then the attorney can counsel the
ADP as to the possible alternatives. For example, if the ADP has capacity, the execution
of Powers of Attorney may be a reasonable alternative to guardianship; or possibly the
ADP could voluntarily agree to some or all of what the Petitioner is requesting in
exchange for dismissal of the Petition or the entry of a limited guardianship order.
The initial client interview with an ADP can be difficult. The ADP may be in a nursing
home, or mental institution or at home under difficult conditions.
Regardless, the attorney should try to explain the consequences of guardianship to the
fullest extent possible, in simple terms the ADP can understand. The attorney should
explain the ways to defend against a guardianship petition and the possible defenses and
necessary proofs. For example, the testimony of a physician, qualified care worker, close
friend or family member that the ADP is capable of handling his own affairs can be
2016 GAL Training
May 20, 2016
CH 3 Page 11
presented. And, if applicable, evidence that the proposed guardian is not the best choice
should be presented.
If the ADP is confused, consider the cause of the confusion; and whether it is temporary
or permanent; and whether it is due to medications the ADP is taking. Remember that
some medications can cause permanent cognitive impairment, while others cause only
temporary cognitive impairment that dissipates once the medication is terminated. Be
sure to review medical records and speak to the ADP’s physician and care workers if this
possibility exists. Consider also whether the confusion is compounded by depression,
which can be overlooked in the elderly.
As indicated above, the Court should impose, and the appointed attorney should advocate
for, the least restrictive guardianship order.
What does the appointed attorney do if he or she is not convinced the ADP’s position is
in his best interests?
This is an obvious difficult situation.
An ADP may be confused about some things, but not about everything. The ADP may
unreasonably insist that the appointed attorney advocate an inappropriate position or
demand that the attorney defend an indefensible position.
When the attorney has no favorable doctor’s reports, testimony or other evidence to
support the ADP’s position, then it may be best to have the ADP testify before the Court.
ADPs in that position typically request an opportunity to testify because they believe the
Court will side with them once they tell their story; and often even very resistant
personalities become cooperative after they have had the opportunity to have their say to
the Court.
Although the attorney for the ADP may be inclined to judge the client’s competency,
remember that the attorney’s job is to represent the client. It is the Court’s role (not the
lawyer’s) to decide competence and the scope of any guardianship order, within the
applicable Illinois best interests standard.
The attorney’s path may become clearer by treating the ADP as any other client. Further,
an appointed attorney, even with little or no guidance from the client, should make sure
that:
(1)
due process is followed;
(2)
there is no less restrictive alternative to guardianship;
(3)
the petitioner proves the allegations in the petition;
2016 GAL Training
May 20, 2016
CH 3 Page 12
(4)
the proposed guardian is the most suitable person to serve; and
(5)
if a guardian is appointed, the guardianship order is limited as much as
possible and leaves the ADP with as much autonomy as possible.
When this occurs, the ADP should receive the due-process protections afforded under the
Constitution.
The same principles should apply if the appointed attorney is representing a ward seeking
to terminate or modify a guardianship order under 5/11a-20.
In summary, the appointed attorney should: (i) zealously advocate for the ADP, (ii) put
the ADP on the stand if the ADP is willing, (iii) cross-examine expert witnesses, (iv)
make sure that the evidence proves incompetency, (v) make sure the guardian is the best
choice available, (vi) present any available evidence in support of the ADP’s positon, and
(vii) encourage the Court to impose the least-restrictive guardianship possible, so that
the autonomy of the ADP is preserved to the fullest extent possible.
Consideration of Related Ethical Rules
What are the ethical considerations in relation to representing an ADP and in dealing with a
Ward? The following is a brief overview of some of the relevant rules to keep in mind.
The ethical rules governing Illinois lawyers are set forth in the Illinois Supreme Court Rules of
Professional Conduct (IRPC). These rules are often very similar to the Model Rules of
Professional Conduct (MRPC). i The American College of Trust and Estate Counsel (ACTEC)
has published commentaries on the Model Rules, specifically addressing those rules in the
context of the circumstances frequently encountered by trust and estate attorneys. These
commentaries are informative and very helpful to trust and estate attorneys in attempting to
understand how to interpret and apply the Model Rules. The commentaries are frequently
referred to herein as the “ACTEC Commentaries”. ii
IRPC 1.2
Scope of Representation
(a) A lawyer shall abide by a client's decisions concerning the objectives of representation,
subject to paragraphs (c), (d) and (e), and shall consult with the client as to the means by which
they are to be pursued. A lawyer shall abide by a client's decision whether to accept an offer of
settlement of a matter. In a criminal case, the lawyer shall abide by the client's decision, after
disclosure by the lawyer, as to a plea to be entered, whether to waive jury trial and whether the
client will testify.
2016 GAL Training
May 20, 2016
CH 3 Page 13
(b) A lawyer's representation of a client, including representation by appointment, does not
constitute an endorsement of the client's political, economic, social or moral views or activities.
(c) A lawyer may limit the objectives of the representation if the client consents after
disclosure.
(d) A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer
knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any
proposed course of conduct with a client and may counsel or assist a client to make a good-faith
effort to determine the validity, scope, meaning or application of the law.
(e) A lawyer shall not present, participate in presenting, or threaten to present criminal
charges or professional disciplinary actions to obtain an advantage in a civil matter.
(f) In representation of a client, a lawyer shall not:
(1) file a suit, assert a position, conduct a defense, delay a trial or take other action on
behalf of the client when the lawyer knows or reasonably should know that such action would
serve merely to harass or maliciously injure another;
(2) advance a claim or defense the lawyer knows is unwarranted under existing law,
except that the lawyer may advance such claim or defense if it can be supported by a good-faith
argument for an extension, modification, or reversal of existing law; or
(3) fail to disclose that which the lawyer is required by law to reveal.
(g) A lawyer who knows a client has, in the course of representation, perpetrated a fraud
upon a person or tribunal shall promptly call upon the client to rectify the same, and if the client
refuses or is unable to do so, the lawyer shall reveal the fraud to the affected person or tribunal,
except when the information is protected as a privileged communication.
(h) A lawyer who knows that a person other than the client has perpetrated a fraud upon a
tribunal shall promptly reveal the fraud to the tribunal.
(i) When a lawyer knows that a client expects assistance not permitted by these Rules or
other law, the lawyer shall consult with the client regarding the relevant limitations on the
lawyer's conduct.
MRPC 1.2
Scope of Representation.
(a) Subject to paragraphs (c) and (d), a lawyer shall abide by a client's decisions concerning the
objectives of representation and, as required by Rule 1.4, shall consult with the client as to the
means by which they are to be pursued. A lawyer may take such action on behalf of the client as
is impliedly authorized to carry out the representation. A lawyer shall abide by a client's decision
whether to settle a matter. In a criminal case, the lawyer shall abide by the client's decision, after
consultation with the lawyer, as to a plea to be entered, whether to waive jury trial and whether
the client will testify.
2016 GAL Training
May 20, 2016
CH 3 Page 14
(b) A lawyer's representation of a client, including representation by appointment, does not
constitute an endorsement of the client's political, economic, social or moral views or activities.
(c) A lawyer may limit the scope of the representation if the limitation is reasonable under the
circumstances and the client gives informed consent.
(d) A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer
knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any
proposed course of conduct with a client and may counsel or assist a client to make a good faith
effort to determine the validity, scope, meaning or application of the law.
Comment
Generally a lawyer and client may fashion any reasonable arrangement covering the
scope and extent of the lawyer’s services that is mutually agreeable to them. However, that
arrangement must be in the best interests, and not to the detriment, of the client. Often a
determination of what must be done to protect the client’s best interests cannot be made until the
attorney has at least preliminarily investigated the circumstances.
While the nature and scope of the attorney’s engagement often evolves during the
representation, it is usually advisable to reduce it to writing, which should be supplemented from
time to time as may be necessary.
IRPC 1.3
Diligence
A lawyer shall act with reasonable diligence and promptness in representing a client.
MRPC 1.3
Diligence. A lawyer shall act with reasonable diligence and promptness in representing a client.
IRPC 1.4
Communication
(a) A lawyer shall keep a client reasonably informed about the status of a matter and
promptly comply with reasonable requests for information.
(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to
make informed decisions regarding the representation.
MRPC 1.4
Communication.
(a) A lawyer shall:
(1) promptly inform the client of any decision or circumstance with respect to which the client's
informed consent, as defined in Rule 1.0(e), is required by these Rules;
2016 GAL Training
May 20, 2016
CH 3 Page 15
(2) reasonably consult with the client about the means by which the client's objectives are to be
accomplished;
(3) keep the client reasonably informed about the status of the matter;
(4) promptly comply with reasonable requests for information; and
(5) consult with the client about any relevant limitation on the lawyer's conduct when the lawyer
knows that the client expects assistance not permitted by the Rules of Professional Conduct or
other law.
(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to
make informed decisions regarding the representation.
IRPC 1.5
Fees
(a) A lawyer's fee shall be reasonable. The factors to be considered in determining the
reasonableness of a fee include the following:
(1) the time and labor required, the novelty and difficulty of the questions involved, and
the skill requisite to perform the legal service properly;
(2) the likelihood, if apparent to the client, that the acceptance of the particular
employment will preclude other employment by the lawyer;
(3) the fee customarily charged in the locality for similar legal services;
(4) the amount involved and the results obtained;
(5) the time limitations imposed by the client or by the circumstances;
(6) the nature and length of the professional relationship with the client;
(7) the experience, reputation, and ability of the lawyer or lawyers performing the
services; and
(8) whether the fee is fixed or contingent.
(b) When the lawyer has not regularly represented the client, the basis or rate of the fee shall
be communicated to the client before or within a reasonable time after commencing the
representation.
(c) A fee may be contingent on the outcome of the matter for which the service is rendered,
except in a matter in which a contingent fee is prohibited by paragraph (d) or other law. A
contingent fee agreement shall be in writing and shall state the method by which the fee is to be
determined, including the percentage or percentages that shall accrue to the lawyer in the event
of settlement, trial or appeal, litigation and other expenses to be deducted from the recovery, and
whether such expenses are to be deducted before or after the contingent fee is calculated. Upon
conclusion of a contingent fee matter, the lawyer shall provide the client with a written statement
2016 GAL Training
May 20, 2016
CH 3 Page 16
stating the outcome of the matter and, if there is a recovery, showing the remittance to the client
and the method of its determination.
(d) A lawyer shall not enter into an arrangement for, charge, or collect:
(1) any fee in a domestic relations matter, the payment or amount of which is contingent
upon the securing of a dissolution of marriage or upon the amount of maintenance or support, or
property settlement in lieu thereof; provided, however, that the prohibition set forth in Rule
1.5(d)(1) shall not extend to representation in matters subsequent to final judgments in such
cases;
(2) a contingent fee for representing a defendant in a criminal case.
(e) Notwithstanding Rule 1.5(c), a contingent fee agreement regarding the collection of
commercial accounts or of insurance company subrogation claims may be made in accordance
with the customs and practice in the locality for such legal services.
(f) Except as provided in Rule 1.5(j), a lawyer shall not divide a fee for legal services with
another lawyer who is not in the same firm, unless the client consents to employment of the other
lawyer by signing a writing which discloses:
(1) that division of fees will be made;
(2) the basis upon which the division will be made, including the economic benefit to be
received by the other lawyer as a result of the division; and
(3) the responsibility to be assumed by the other lawyer for performance of the legal
services in question.
(g) A division of fees shall be made in proportion to the services performed and
responsibility assumed by each lawyer, except where the primary service performed by one
lawyer is the referral of the client to another lawyer and
(1) the receiving lawyer discloses that the referring lawyer has received or will receive
economic benefit from the referral and the extent and basis of such economic benefit, and
(2) the referring lawyer agrees to assume the same legal responsibility for the
performance of the services in question as would a partner of the receiving lawyer.
(h) The total fee of the lawyers shall be reasonable.
(i) For purposes of Rule 1.5 "economic benefit" shall include:
(1) the amount of participation in the fee received with regard to the particular matter;
(2) any other form of remuneration passing to the referring lawyer from the receiving
lawyer, whether or not with regard to the particular matter; and
(3) an established practice of referrals to and from or from and to the receiving lawyer
and the referring lawyer.
2016 GAL Training
May 20, 2016
CH 3 Page 17
(j) Notwithstanding Rule 1.5(f), a payment may be made to a lawyer formerly in the firm,
pursuant to a separation or retirement agreement.
MRPC 1.5
Fees.
(a) A lawyer shall not make an agreement for, charge, or collect an unreasonable fee or an
unreasonable amount for expenses. The factors to be considered in determining the
reasonableness of a fee include the following:
(1) the time and labor required, the novelty and difficulty of the questions involved, and the skill
requisite to perform the legal service properly;
(2) the likelihood, if apparent to the client, that the acceptance of the particular employment will
preclude other employment by the lawyer;
(3) the fee customarily charged in the locality for similar legal services;
(4) the amount involved and the results obtained;
(5) the time limitations imposed by the client or by the circumstances;
(6) the nature and length of the professional relationship with the client;
(7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and
(8) whether the fee is fixed or contingent.
(b) The scope of the representation and the basis or rate of the fee and expenses for which the
client will be responsible shall be communicated to the client, preferably in writing, before or
within a reasonable time after commencing the representation, except when the lawyer will
charge a regularly represented client on the same basis or rate. Any changes in the basis or rate
of the fee or expenses shall also be communicated to the client.
(c) A fee may be contingent on the outcome of the matter for which the service is rendered,
except in a matter in which a contingent fee is prohibited by paragraph (d) or other law. A
contingent fee agreement shall be in a writing signed by the client and shall state the method by
which the fee is to be determined, including the percentage or percentages that shall accrue to the
lawyer in the event of settlement, trial or appeal; litigation and other expenses to be deducted
from the recovery; and whether such expenses are to be deducted before or after the contingent
fee is calculated. The agreement must clearly notify the client of any expenses for which the
client will be liable whether or not the client is the prevailing party. Upon conclusion of a
contingent fee matter, the lawyer shall provide the client with a written statement stating the
outcome of the matter and, if there is a recovery, showing the remittance to the client and the
method of its determination.
(d) A lawyer shall not enter into an arrangement for, charge, or collect:
2016 GAL Training
May 20, 2016
CH 3 Page 18
(1) any fee in a domestic relations matter, the payment or amount of which is contingent upon
the securing of a divorce or upon the amount of alimony or support, or property settlement in lieu
thereof; or
(2) a contingent fee for representing a defendant in a criminal case.
(e) A division of a fee between lawyers who are not in the same firm may be made only if:
(1) the division is in proportion to the services performed by each lawyer or each lawyer assumes
joint responsibility for the representation;
(2) the client agrees to the arrangement, including the share each lawyer will receive, and the
agreement is confirmed in writing; and
(3) the total fee is reasonable.
Comment
An attorney may be appointed by the Court or retained by the ADP, but someone other
than the ADP may end up paying the attorney. This could be the Petitioner or another family
member; but in most cases the fee will need to be approved by the Court.
Regardless, the attorney’s loyalties must be to the ADP and if acceptance of payment
from another source presents a significant risk that the lawyer's independent judgment will be
materially limited by the lawyer's interest in accommodating the person paying the fee, then the
lawyer should either decline the representation or may, in some situations, be able to proceed
provided the conflict can be consented to, the client has adequate information about the risks and
the client makes an informed consent in writing.
The ACTEC Commentaries 3rd say, “One person, perhaps an employer, insurer, relative,
or friend, may pay the cost of providing legal services to another person. Notwithstanding the
source of payment of the fee, the person for whom the services are performed is the client, whose
confidences must be safeguarded and whose directions must prevail. Under MRPC 1.8(f)
(Conflict of Interest: Prohibited Transactions) the lawyer may accept compensation from a
person other than a client only if the client consents after consultation, there is no interference
with the lawyer's independence of judgment or with the lawyer-client relationship, and the
client's confidences are maintained.”
IPRC 1.6
Confidentiality of Information
(a) Except when required under Rule 1.6(b) or permitted under Rule 1.6(c), a lawyer shall
not, during or after termination of the professional relationship with the client, use or reveal a
confidence or secret of the client known to the lawyer unless the client consents after disclosure.
(b) A lawyer shall reveal information about a client to the extent it appears necessary to
prevent the client from committing an act that would result in death or serious bodily harm.
(c) A lawyer may use or reveal:
2016 GAL Training
May 20, 2016
CH 3 Page 19
(1) confidences or secrets when permitted under these Rules or required by law or court
order,
(2) the intention of a client to commit a crime in circumstances other than those
enumerated in Rule 1.6(b); or
(3) confidences or secrets necessary to establish or collect the lawyer's fee or to defend
the lawyer or the lawyer's employees or associates against an accusation of wrongful conduct.
(d) The relationship of trained intervenor and a lawyer, judge, or a law student who seeks or
receives assistance through the Lawyers' Assistance Program, Inc., shall be the same as that of
lawyer and client for purposes of the application of Rule 8.1, Rule 8.3 and Rule 1.6.
(e) Any information received by a lawyer in a formal proceeding before a trained intervenor,
or panel of intervenors, of the Lawyers' Assistance Program, Inc., shall be deemed to have been
received from a client for purposes of the application of Rules 1.6, 8.1 and 8.3.
MRPC 1.6
Confidentiality of Information.
(a) A lawyer shall not reveal information relating to the representation of a client unless the
client gives informed consent, the disclosure is impliedly authorized in order to carry out the
representation or the disclosure is permitted by paragraph (b).
(b) A lawyer may reveal information relating to the representation of a client to the extent the
lawyer reasonably believes necessary:
(1) to prevent reasonably certain death or substantial bodily harm;
(2) to prevent the client from committing a crime or fraud that is reasonably certain to result in
substantial injury to the financial interests or property of another and in furtherance of which the
client has used or is using the lawyer's services;
(3) to prevent, mitigate or rectify substantial injury to the financial interests or property of
another that is reasonably certain to result or has resulted from the client's commission of a crime
or fraud in furtherance of which the client has used the lawyer's services;
(4) to secure legal advice about the lawyer's compliance with these Rules;
(5) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer
and the client, to establish a defense to a criminal charge or civil claim against the lawyer based
upon conduct in which the client was involved, or to respond to allegations in any proceeding
concerning the lawyer's representation of the client; or
(6) to comply with other law or a court order.
IPRC 1.7
Conflict of Interest: General Rule
2016 GAL Training
May 20, 2016
CH 3 Page 20
(a) A lawyer shall not represent a client if the representation of that client will be directly
adverse to another client, unless:
(1) the lawyer reasonably believes the representation will not adversely affect the
relationship with the other client; and
(2) each client consents after disclosure.
(b) A lawyer shall not represent a client if the representation of that client may be materially
limited by the lawyer's responsibilities to another client or to a third person, or by the lawyer's
own interests, unless:
(1) the lawyer reasonably believes the representation will not be adversely affected; and
(2) the client consents after disclosure.
(c) When representation of multiple clients in a single matter is undertaken, the disclosure
shall include explanation of the implications of the common representation and the advantages
and risks involved.
MRPC 1.7
Conflict of Interest: Current Clients.
(a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation
involves a concurrent conflict of interest. A concurrent conflict of interest exists if:
(1) the representation of one client will be directly adverse to another client; or
(2) there is a significant risk that the representation of one or more clients will be materially
limited by the lawyer's responsibilities to another client, a former client or a third person or by a
personal interest of the lawyer.
(b) Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a
lawyer may represent a client if:
(1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent
representation to each affected client;
(2) the representation is not prohibited by law;
(3) the representation does not involve the assertion of a claim by one client against another
client represented by the lawyer in the same litigation or other proceeding before a tribunal; and
(4) each affected client gives informed consent, confirmed in writing.
Comment
The general purpose of the conflict of interest rules is to prevent the impairment of the
lawyer’s duty of loyalty and independence to a particular client from conflicts of interest arising
from the lawyer’s responsibilities to other current and former clients.
2016 GAL Training
May 20, 2016
CH 3 Page 21
The ACTEC Commentaries 4th suggest: “Resolution of a conflict of interest problem
under [Rule 1.7] requires the lawyer to: 1) clearly identify the client or clients; 2) determine
whether a conflict of interest exists; 3) decide whether the representation may be undertaken
despite the existence of a conflict, i.e., whether the conflict can be consented to; and 4) if so,
consult with the clients affected under paragraph (a) and obtain their informed consent,
confirmed in writing.”
IRPC 1.14 Client Under a Disability
(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 some other reason,
the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship.
(b) A lawyer may seek the appointment of a guardian or take other protective action with respect
to a client, only when the lawyer reasonably believes that the client cannot adequately act in the
client's own interest.
MRPC 1.14
Client with Diminished Capacity
(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.
Comment
The normal client-lawyer relationship is based on the assumption that the client, when
properly advised and assisted, is capable of making decisions about important matters. When the
client is a minor or suffers from a diminished mental capacity, however, maintaining the ordinary
client-lawyer relationship may not be possible in all respects.
The ACTEC Commentaries 4th state: “The client may wish to have family members or
other persons participate in discussions with the lawyer. When necessary to assist in the
representation, the presence of such persons generally does not affect the applicability of the
2016 GAL Training
May 20, 2016
CH 3 Page 22
attorney-client evidentiary privilege. Nevertheless, the lawyer must keep the client's interests
foremost and, except for protective action authorized under paragraph (b), must to look to the
client, and not family members, to make decisions on the client's behalf.” However, the issue of
whether the attorney client privilege in Illinois extends to conversations in the presence of third
parties, should be carefully considered.
If a lawyer reasonably believes that a client is at risk of substantial physical, financial or
other harm unless prompt action is taken, and that a normal client-lawyer relationship cannot be
maintained because the client lacks sufficient capacity to communicate or to make adequately
considered decisions in connection with the representation, then the lawyer may take the
protective measures deemed necessary. Such measures could include: consulting with family
members, using a reconsideration period to permit clarification or improvement of
circumstances, consulting with third parties that have an interest in and the ability to protect the
client; and when representing an ADP after being appointed by the Court, another alternative
may be to seek Court guidance (keeping in mind, however, the duties of confidentiality). In
taking any protective action, the lawyer should be guided by the wishes and values of the client
to the extent known, the client's best interests and the goals of minimizing intrusion into the
client's independence.
What do you do if you are consulted by a client’s family about instituting guardianship
proceedings against the client?
As stated above, the lawyer may seek the appointment of a guardian independently, and
therefore also should be able to take that action on behalf of a family member, provided the
lawyer agrees that the action is in the client’s best interests. But in doing so, what information
can the lawyer disclose with respect to the client’s existing estate plan, assets, intentions,
condition, etc.? As stated in the ACTEC Commentaries 4th, “when taking protective action, . . .
the lawyer is impliedly authorized to make the necessary disclosures, even when the client
directs the lawyer to the contrary. Nevertheless, given the risks of disclosure, paragraph (c) [of
the Model rules, but which does not exist under the Illinois rules] 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 interests before discussing matters
related to the client. The lawyer's position in such cases is an unavoidably difficult one.”
(emphasis added)
What do you do if you suspect the client lacks testamentary capacity?
This topic is beyond the scope of this outline, but generally, if the testamentary capacity
of a client is uncertain, the lawyer should exercise particular caution in assisting the client in
modifying his or her estate plan. The lawyer generally should not prepare a will or other
dispositive instrument for a client who the lawyer reasonably believes lacks the requisite
capacity. On the other hand, because of the importance of testamentary freedom, the lawyer may
determine it appropriate to assist clients with apparent borderline testamentary capacity, but
2016 GAL Training
May 20, 2016
CH 3 Page 23
should be particularly diligent about preserving evidence regarding the client's capacity,
motivation and freedom from undue influence. In cases of doubtful capacity, the lawyer should
consider, the possibility of proceeding under paragraph a-5 of the Illinois Probate Act (755 ILCS
11a-18(a-5)), for obtaining court supervision of proposed changes to the client’s estate plan.
IRPC 1.16 Declining or Terminating Representation
(a) A lawyer representing a client before a tribunal shall withdraw from employment (with
permission of the tribunal if such permission is required), and a lawyer representing a client in
other matters shall withdraw from employment, if:
(1) the lawyer knows or reasonably should know that the client is bringing the legal
action, conducting the defense, or asserting a position in the litigation, or is otherwise having
steps taken, merely for the purpose of harassing or maliciously injuring any person;
(2) the lawyer knows or reasonably should know that such continued employment will
result of violation of these Rules;
(3) the lawyer's mental or physical condition renders it unreasonably difficult for the
lawyer to carry out the employment effectively; or
(4) the lawyer is discharged by the client.
(b) Except as required in Rule 1.16(a), a lawyer shall not request permission to withdraw in
matters pending before a tribunal, and shall not withdraw in other matters, unless such request or
such withdrawal is because:
(1) the client:
(A) insists upon presenting a claim or defense that is not warranted under existing law
and cannot be supported by a reasonable argument for an extension, modification, or reversal of
existing law;
(B) seeks to pursue an illegal course of conduct;
(C) insists that the lawyer pursue a course of conduct that is illegal or prohibited by
these Rules;
(D) by other conduct renders it unreasonably difficult for the lawyer to carry out the
employment effectively;
(E) insists, in a matter not pending before a tribunal, that the lawyer engage in
conduct that is contrary to the judgment and advice of the lawyer although not prohibited by
these Rules; or
(F) substantially fails to fulfill an agreement or obligation to the lawyer as to
expenses or fees;
2016 GAL Training
May 20, 2016
CH 3 Page 24
(2) the lawyer's inability to work with co-counsel indicates that the best interests of the
client likely will be served by withdrawal;
(3) the client consents to termination of the lawyer's employment after disclosure; or
(4) the lawyer reasonably believes that a tribunal will, in a proceeding pending before the
tribunal, find the existence of other good cause for withdrawal.
(c) If permission for withdrawal from employment is required by the rules of a tribunal, a
lawyer shall not withdraw from employment in a proceeding before that tribunal without its
permission.
(d) In any event, a lawyer shall not withdraw from employment until the lawyer has taken
reasonable steps to avoid foreseeable prejudice to the rights of the client, including giving due
notice to the client, allowing time for employment of other counsel, delivering to the client all
papers and property to which the client is entitled, and complying with applicable laws and rules.
(e) A lawyer who withdraws from employment shall refund promptly any part of a fee paid
in advance that has not been earned.
MRPC 1.16
Declining or Terminating Representation.
(a) Except as stated in paragraph (c), a lawyer shall not represent a client or, where
representation has commenced, shall withdraw from the representation of a client if:
(1) the representation will result in violation of the rules of professional conduct or other law;
(2) the lawyer's physical or mental condition materially impairs the lawyer's ability to represent
the client; or
(3) the lawyer is discharged.
(b) Except as stated in paragraph (c), a lawyer may withdraw from representing a client if
withdrawal can be accomplished without material adverse effect on the interests of the client; or
(1) the client persists in a course of action involving the lawyer's services that the lawyer
reasonably believes is criminal or fraudulent;
(2) the client has used the lawyer's services to perpetrate a crime or fraud;
(3) a client insists upon pursuing an objective that the lawyer considers repugnant or imprudent;
(4) the client fails substantially to fulfill an obligation to the lawyer regarding the lawyer's
services and has been given reasonable warning that the lawyer will withdraw unless the
obligation is fulfilled;
(5) the representation will result in an unreasonable financial burden on the lawyer or has been
rendered unreasonably difficult by the client; or
2016 GAL Training
May 20, 2016
CH 3 Page 25
(6) other good cause for withdrawal exists.
(c) When ordered to do so by a tribunal, a lawyer shall take steps to the extent reasonably
practicable to protect a client's interests, such as giving reasonable notice to the client, allowing
time for employment of other counsel, surrendering papers and property to which the client is
entitled and refunding any advance payment of fee that has not been earned. The lawyer may
retain papers relating to the client to the extent permitted by other law.
(d) Upon termination of representation, a lawyer shall take steps to the extent reasonably
practicable to protect a client's interests, such as giving reasonable notice to the client, allowing
time for employment of other counsel, surrendering papers and property to which the client is
entitled and refunding any advance payment of fee that has not been earned. The lawyer may
retain papers relating to the client to the extent permitted by law.
Comment
A lawyer should never accept representation, or continue that representation, if the
lawyer cannot competently perform the required work, avoid conflicting interests, avoid
violating any Rule of Professional Conduct applicable to the lawyer or avoid violating any other
law applicable to either the lawyer or the client.
After withdrawal, the duty of confidentiality continues although, if the representation
involves judicial proceedings, the lawyer may be required to explain the withdrawal to the court,
or may be required to disclose the client’s inappropriate conduct in certain circumstances, such
as possibly in the case of a breach of fiduciary duty.
A lawyer may withdraw whenever withdrawal can be effected either without material
adverse effects on the interests of the client or for one or more of the following reasons: (i) the
client involves the lawyer in criminal or fraudulent activity; (ii) the client insists upon pursuing
objectives the lawyer finds repugnant or imprudent; (iii) the client fails "substantially" to fulfill
an obligation to the lawyer regarding the lawyer's services; (iv) the representation will result in
an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by
the client; or (v) other "good cause" (often involving mutual antagonism between lawyer and
client and the breakdown of the lawyer-client relationship).
IRPC 3.3
Conduct Before a Tribunal
(a) In appearing in a professional capacity before a tribunal, a lawyer shall not:
(1) make a statement of material fact or law to a tribunal which the lawyer knows or
reasonably should know is false;
(2) fail to disclose to a tribunal a material fact known to the lawyer when disclosure is
necessary to avoid assisting a criminal or fraudulent act by the client;
(3) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to
the lawyer to be directly adverse to the position of the client and not disclosed by opposing
counsel;
2016 GAL Training
May 20, 2016
CH 3 Page 26
(4) offer evidence that the lawyer knows to be false. If a lawyer has offered material
evidence and comes to know of its falsity, the lawyer shall take reasonable remedial measures;
(5) participate in the creation or preservation of evidence when the lawyer knows or
reasonably should know the evidence is false;
(6) counsel or assist the client in conduct the lawyer knows to be illegal or fraudulent;
(7) engage in other illegal conduct or conduct in violation of these Rules;
(8) fail to disclose the identities of the clients represented and of the persons who
employed the lawyer unless such information is privileged or irrelevant;
(9) intentionally degrade a witness or other person by stating or alluding to personal facts
concerning that person which are not relevant to the case;
(10) in trial, allude to any matter that the lawyer does not reasonably believe is
relevant or that will not be supported by admissible evidence, assert personal knowledge of facts
in issue except when testifying as a witness, or state a personal opinion as to the justness of a
cause, the credibility of a witness, the culpability of a civil litigant or the guilt or innocence of an
accused, but a lawyer may argue, on analysis of evidence, for any position or conclusion with
respect to the matter stated herein;
(11) refuse to accede to reasonable requests of opposing counsel that do not prejudice
the rights of the client;
(12) fail to use reasonable efforts to restrain and to prevent clients from doing those
things that the lawyer ought not to do;
(13)
produce;
suppress any evidence that the lawyer or client has a legal obligation to reveal or
(14) advise or cause a person to become unavailable as a witness by leaving the
jurisdiction or making secret their whereabouts within the jurisdiction; or
(15) pay, offer to pay, or acquiesce in the payment of compensation to a witness
contingent upon the content of the witness' testimony or the outcome of the case, but a lawyer
may advance, guarantee, or acquiesce in the payment of expenses reasonably incurred in
attending or testifying, and a reasonable fee for the professional services of an expert witness.
(b) The duties stated in paragraph (a) are continuing duties and apply even if compliance
requires disclosure of information otherwise protected by Rule 1.6.
(c) A lawyer may refuse to offer evidence that the lawyer reasonably believes is false.
(d) In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known
to the lawyer which will enable the tribunal to make an informed decision, whether or not the
facts are adverse.
MRPC 3.3
2016 GAL Training
May 20, 2016
CH 3 Page 27
Candor toward the Tribunal.
(a) A lawyer shall not knowingly:
(1) make a false statement of material fact or law to a tribunal;
(2) fail to disclose a material fact to a tribunal when disclosure is necessary to avoid assisting a
criminal or fraudulent act by the client;
(3) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the
lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel;
or
(4) offer evidence that the lawyer knows to be false. If a lawyer has offered material evidence
and comes to know of its falsity, the lawyer shall take reasonable remedial measures.
(b) The duties stated in paragraph (a) continue to the conclusion of the proceeding, and apply
even if compliance requires disclosure of information otherwise protected by Rule 1.6.
(c) A lawyer may refuse to offer evidence that the lawyer reasonably believes is false.
(d) In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the
lawyer which will enable the tribunal to make an informed decision, whether or not the facts are
adverse.
IRPC 3.7
Lawyer as Witness
(a) A lawyer shall not accept or continue employment in contemplated or pending litigation
if the lawyer knows or reasonably should know that the lawyer may be called as a witness on
behalf of the client, except that the lawyer may undertake the employment and may testify:
(1) if the testimony will relate to an uncontested matter;
(2) if the testimony will relate to a matter of formality and the lawyer reasonably believes
that no substantial evidence will be offered in opposition to the testimony;
(3) if the testimony will relate to the nature and value of legal services rendered in the
case by the lawyer or the firm to the client; or
(4) as to any other matter, if refusal to accept or continue the employment would work a
substantial hardship on the client.
(b) If a lawyer knows or reasonably should know that the lawyer may be called as a witness
other than on behalf of the client, the lawyer may accept or continue the representation until the
lawyer knows or reasonably should know that the lawyer's testimony is or may be prejudicial to
the client.
(c) Except as prohibited by Rule 1.7 or Rule 1.9, a lawyer may act as advocate in a trial in
which another lawyer in the lawyer's firm may be called as a witness.
2016 GAL Training
May 20, 2016
CH 3 Page 28
MRPC 3.7
Lawyer as Witness.
(a) A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary
witness except where:
(1) the testimony relates to an uncontested issue;
(2) the testimony relates to the nature and value of legal services rendered in the case; or
(3) disqualification of the lawyer would work substantial hardship on the client.
(b) A lawyer may act as advocate in the trial in which another lawyer in the lawyer's firm is
likely to be called as a witness unless precluded from doing so by Rule 1.7 or Rule 1.9.
IRPC 4.1
Truthfulness in Statements to Others
In the course of representing a client a lawyer shall not:
(a) make a statement of material fact or law to a third person which statement the lawyer
knows or reasonably should know is false; or
(b) fail to disclose a material fact to a third person when disclosure is necessary to avoid
assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 1.6.
MRPC 4.1
Truthfulness in Statements to Others.
In the course of representing a client a lawyer shall not knowingly:
(a) make a false statement of material fact or law to a third person; or
(b) fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting
a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 1.6.
i
American Bar Association, Model Rules of Professional Conduct.
ACTEC Commentaries on the Model Rules of Professional Conduct, Price, Farley & Ross, 3rd ed. 1999 (referred
to herein as the “ACTEC Commentaries 3rd”). These commentaries were revised in part after the American Bar
Association “Ethics 2000 Commission” resulted in the partial revision to the Model Rules. Those revisions are also
referred to herein. ACTEC Commentaries on the Model Rules of Professional Conduct, Bennett & Ottaway 4th ed.
2004 (referred to herein as the “ACTEC Commentaries 4th”).
ii
2016 GAL Training
May 20, 2016
CH 3 Page 29