Editor’s note: Attorney Debbie Weecks served as a guest co-author for this column.
In a recent column I wrote about the challenges and rewards of caring for an elderly parent. The column got more response than anything I have ever written. One lawyer, retired from practice in Connecticut and instead now practicing in Arizona, was Debbie Weecks. We discussed doing some collaborative work, exploring the issues related to representation of vulnerable or elderly adults.
One issue which became immediately clear is that Arizona and Connecticut have adopted quite different paradigms to define the role of lawyer dealing with a client suffering from a disability. In Gross v. Rell, the state Supreme Court unambiguously embraced zealous advocacy as the appropriate standard of conduct. Arizona law has embraced best interests as the standard of conduct in cases of protected people.
As a general ethical contrast, Arizona substituted the duty of acting honorably for the duty of zealous advocacy. In 2002, the State Bar of Arizona proposed a rule change petition to adopt a new professional code of conduct. One of the changes explained the bar’s position that “lawyers have misused ‘zeal’ or ‘zealously’ to justify intemperate and uncivil conduct.”
Today, the Airzona preamble reads, in relevant part: “A lawyer, as a member of the legal profession, is a representative of clients, an officer of the legal system and a public citizen having special responsibility for the quality of justice. Whether or not engaging in the practice of law, lawyers should conduct themselves honorably.”
Applying the ethics’ code to the probate code, Arizona’s certified fiduciaries attempt to ascertain what the protected person would do, but in addition, the law specifies, effective this year: “A guardian ad litem, fiduciary, fiduciary’s attorney and attorney for the ward or protected person have a duty to…Act in the best interest of the ward or protected person…Avoid engaging in excessive or unproductive activities [and]…Affirmatively assess the financial cost of pursuing any action compared to the reasonably expected benefit to the ward or protected person.”
This contrasts with our standard. In Gross v. Rell, the Connecticut Supreme Court rejected best interests as the appropriate standard of conduct, holding: “[A]s a general rule, attorneys for respondents and attorneys for conservatees are not ethically permitted, much less required, to make decisions on the basis of their personal judgment regarding a respondent’s or a conservatee’s best interests, although they may be required to do so in an exceptional case…Accordingly, we conclude that the primary purpose of the statutory provision [relating to the appointment of counsel for a conserved person]… is to ensure that respondents and conservatees are fully informed of the nature of the proceedings and that their articulated preferences are zealously advocated by a trained attorney both during the proceedings and during the conservatorship. The purpose is not to authorize the Probate Court to obtain the assistance of an attorney in ascertaining the respondent’s or conservatee’s best interests.”
Zealous advocacy remains the appropriate duty in Connecticut, found both in the Rules of Professional Conduct and, now, in our common law. Both Arizona and Connecticut have adopted almost identical versions of Model Rule 1.14 which covers lawyers dealing with impaired clients, though Arizona’s rule allows the lawyer to make the determination that a client has a diminished capacity while Connecticut’s rule focuses only on whether the client’s proposed actions are “adequately considered.”
Yet the Arizona regime not only allows, but actually mandates, that lawyers dealing with impaired clients affirmatively act in the best interests of their clients while Connecticut jurisprudence makes it a very rare occasion when a lawyer will be justified in overruling an impaired client’s wishes.
Connecticut’s Probate Court administrator has published guidelines for lawyers dealing with impaired clients in the conservatorship context. They make clear that the lawyer’s role, both for the respondent in conservatorship proceedings and for a conserved person, is zealous advocacy, leaving the best interests analysis to either the court or the conservator. I recently asked Judge Paul J. Kneirim, the Probate Court administrator, whether Gross v. Rell changed this analysis, and he clearly felt that it did not.
Which approach to serving the elderly is preferable? Arizona’s focus on best interests within its new statutory and rule framework, focused on “best interests”? Or is Connecticut’s rule, requiring lawyers to be advocates first, last and always? Can the concepts of honor and zeal be reconciled, or so they represent opposite ends of a continuum? •
Mark DuBois, the former chief disciplinary counsel for Connecticut, is now an attorney at the New London firm of Geraghty & Bonnano.
Zealous Advocacy Versus Honorable Conduct
October 5, 2012
The Connecticut Law Tribune