Opinion
No. 17-0634
05-24-2019
IN RE Verna Francis Coley THETFORD, Relator
Donald E. Herrmann, David E. Keltner, Joseph "Joe" R. Greenhill, III, Kelly Hart & Hallman LLP, Fort Worth TX, Alfred G. ‘Rusty’ Allen III, Turner & Allen, P.C., Graham TX, for Real Party in Interest Ciera Bank of Graham, Texas and Jamie Kay Rogers. Mary H. Barkley, Joshua V. Michaels, Robert E. Aldrich Jr., Stephen J. Huschka, Cantey Hanger LLP, Fort Worth TX, for Relator. Don D. Ford III, Ford & Bergner LLP, Houston TX, for Amicus Curiae Ford + Bergner LLP. Toby L. Reddell, Graham TX, Pro Se.
Donald E. Herrmann, David E. Keltner, Joseph "Joe" R. Greenhill, III, Kelly Hart & Hallman LLP, Fort Worth TX, Alfred G. ‘Rusty’ Allen III, Turner & Allen, P.C., Graham TX, for Real Party in Interest Ciera Bank of Graham, Texas and Jamie Kay Rogers.
Mary H. Barkley, Joshua V. Michaels, Robert E. Aldrich Jr., Stephen J. Huschka, Cantey Hanger LLP, Fort Worth TX, for Relator.
Don D. Ford III, Ford & Bergner LLP, Houston TX, for Amicus Curiae Ford + Bergner LLP.
Toby L. Reddell, Graham TX, Pro Se.
Chief Justice Hecht delivered the opinion of the Court as to Parts I, II, III-A, and IV, in which Justice Green, Justice Guzman, Justice Lehrmann, and Justice Boyd joined, and a concurring opinion as to Part III-B, in which Justice Green and Justice Guzman joined.
A guardianship is a court-sanctioned infringement of an incapacitated person's right to control her own property, liberty, and life in order "to promote and protect [her] well-being". A guardian can provide essential care for the ward. But tragically, wards are also vulnerable to neglect, abuse, and exploitation. There are more than 51,000 open guardianships in Texas, 8% more than there were five years ago. And the number is growing, as the number of Texans over age 65 is expected to double by 2030, to six million. Guardianship proceedings must ensure the appointment of guardians who will promote and protect the well-being of the incapacitated elderly and the disabled.
See generally Claudia Laird & Darlene Payne Smith, Elder Abuse: The Criminal Aspects of Estates & Guardianships, and Mental Commitments , 10 Est. Plan. & Community Prop. L.J. 225 (2018) (discussing abuse of elderly wards in Texas).
Tex. Office of Court Admin. , Texas Guardianship Reform : Protecting the Elderly and Incapacitated 2 (2019), http://www.txcourts.gov/media/1443314/texas-guardianship-reform_jan-2019.pdf.
Id.
Id.
Guardianship proceedings present difficult ethical issues for lawyers. Generally, a lawyer must act in a client's best interests, but guardianship cases can be emotionally charged. A ward's best interests may be hotly disputed and, because of her incapacity, difficult to discern. The issue before us is whether the Texas Disciplinary Rules of Professional Conduct require that a lawyer be disqualified from representing one client who is applying to be appointed guardian for another current or former client, without that client's consent. We hold that the rules permit the representation in limited circumstances and that a trial court's decision regarding disqualification, based on a careful, thorough consideration of all the evidence, is entitled to great deference by an appellate court. We conclude that the trial court in this case did not abuse its discretion by refusing to disqualify counsel for the guardianship applicant. Accordingly, we deny mandamus relief.
Tex. Disciplinary Rules Prof'l Conduct , reprinted in Tex. Gov't Code tit. 2, subtit. G, app. A ( Tex. State Bar R. art. X, § 9). All references to rules are to these rules unless otherwise noted.
The trial court denied the motion to disqualify from the bench after a brief hearing then immediately proceeded to hear the application for temporary guardianship. The next day, before that hearing concluded, the court signed the order denying the motion to disqualify. "In determining whether a trial court abused its discretion, a reviewing court is generally bound by the record before the trial court at the time its decision was made." In re M-I L.L.C. , 505 S.W.3d 569, 574 (Tex. 2016) (orig. proceeding). But both sides here refer to evidence in the guardianship hearing, as well as evidence filed in the proceeding since the application was granted. That evidence might have caused the trial court to reconsider its denial of disqualification. See Henderson v. Floyd , 891 S.W.2d 252, 255 (Tex. 1995) (orig. proceeding) (per curiam) (after finding that the trial court had abused its discretion by denying the defendant's motion to disqualify plaintiff's counsel, commenting that the trial court could consider changed circumstances—whether the defendant had forfeited his motion—on remand). Accordingly, we consider all the evidence before the trial court that has been provided in this original proceeding.
Jamie Rogers was born in Graham, Texas (pop. 8,903), the county seat of Young County (pop. 18,550), located about 90 miles west–northwest of Fort Worth. All her life, her uncle and aunt, L.D. and Verna Thetford, also lived in Graham, and at all times material to this case, she and her husband, Larry, lived about a mile from the Thetfords. Verna once taught school but for many years was the bookkeeper for the cow–calf operation she and L.D. ran on five pastures totaling about 1,000 acres in Young and neighboring Jack Counties. As the Thetfords grew older, they relied on Jamie and Larry for support.
In March 2012, the Thetfords loaned the Rogerses $ 350,000 at 4% interest—more than the Thetfords were making on the funds at the bank—to purchase land that had belonged to Jamie's great-grandparents, Verna's grandparents. Alfred G. "Rusty" Allen, III, a lawyer practicing in Graham, represented the Thetfords in preparing the five-year note and the deed of trust. Jamie had worked for Allen's law firm as a legal assistant beginning when she was a senior in high school, though she was not working for the firm at the time of the loan. Allen was named trustee under the deed of trust.
In July 2015, Verna, then 84, executed a will and power of attorney, prepared by Allen. In the will, Verna left her estate to Jamie if she survived Verna, and if not, to Verna's heirs. The power of attorney designated Jamie as Verna's attorney-in-fact and her preferred guardian if the need arose and authorized Jamie to make healthcare decisions for Verna if she were unable to do so herself, "including the choice of nursing home facilities". Jamie was not working for Allen's firm at the time. A month later, L.D., then 92 and suffering from dementia, moved from his and Verna's home to Brookdale Graham, an assisted living center.
In 2016, Verna's mental state began to deteriorate. She verbally abused L.D. and his caregivers and interfered with their giving him his medications. Jamie and Larry assisted Verna in gathering her mail, running errands, and banking, but Verna often forgot what she had asked Jamie to do and accused Jamie of mismanaging her affairs. In December 2016, Verna was briefly admitted to the hospital twice, then transferred to Brookdale.
Though Verna's driver's license had been revoked, she continued to insist on driving. In February 2017, she convinced one of her caregivers to take her from Brookdale to her home, where she retrieved the keys to a pickup and drove to the feed store for supplies for her cattle. On the way home, she struck a trailer pulled by another vehicle and left the scene, at first denying what she had done and admitting to it only later. The trailer was minimally damaged, and no charges were filed. But the incident prompted Jamie to disable Verna's vehicles and to monitor her more closely at Brookdale. Verna accused Jamie of stealing the pickup.
The Rogerses' note to the Thetfords came due on March 15, with a $ 285,000 balloon payment still being owed. Believing that L.D. lacked the capacity to agree to extend the note and concerned that Verna was in the same position, the Rogerses began efforts to refinance the note with a local bank but were still awaiting completion of an appraisal of the property when the note came due. Verna claimed that she asked Allen to write the Rogerses a demand letter but that he refused. Allen denies that Verna made the request. At the time, Jamie was working again for Allen's law firm. Verna asked a friend to drive her to the office of another Graham attorney, Stephen Crawford, who prepared a revocation of her power of attorney, which Verna executed in Crawford's office on March 27. Verna expressed to Crawford her desire to foreclose the deed of trust lien securing the Rogerses' note, and Crawford explained foreclosure would need to be initiated by Allen, the trustee, or Verna would need to appoint a successor trustee. Verna did not ask Crawford to write the Rogerses a demand letter.
Two weeks later, on April 10, Jamie, represented by Allen, filed an application for temporary guardianship of Verna's person and a management trust for her estate. Attached to the application was a physician's certificate of medical examination from Verna's personal physician, Dr. Pete Brown; his office notes from his examination of her on March 29; and his affidavit. Brown wrote in his office notes that Verna "presents with change in mental status" that "was noted several months ago. The course has been progressively worsening. It is of severe intensity." In his affidavit, Brown averred:
2. I am a licensed medical doctor, authorized to practice medicine in the State of Texas and have been since 1980.
3. Verna Francis Coley Thetford has been a patient of mine since 2006, and I have seen her regularly and frequently since that time.
4. I last examined Mrs. Thetford on March 29, 2017, at which time I determined that she:
(A) Is legally blind;
(B) Is suffering from moderate dementia that is increasing in severity;
(C) Has deficits in short-term memory, immediate recall, recognizing familiar objects and persons, solving problems, reasoning logically, and grasping aspects of her situation;
(D) Lacks the ability to initiate and make business, managerial, and financial decisions;
(E) Lacks the ability to make, modify, rescind or revoke contracts;
(F) Lacks the ability to manage a personal bank account or her personal finances;
(G) Lacks the ability [to] safely operate a motor vehicle;
(H) Lacks the ability to make decisions regarding marriage;
(I) Lacks the ability to determine her own residence; and
(J) Makes poor decisions, has poor insight and judgment, and often acts irrationally.
5. Based on my examination of Mrs. Thetford on March 29, 2017, I determined that Mrs. Thetford was, and is, incapacitated as that term is defined by Section 1002.017 of the Texas Estates Code, which states that an "Incapacitated Person" is an adult who, because of a physical or mental condition, is substantially unable to: (a) provide food, clothing, or shelter for himself or herself; (b) care for the person's own physical health; or (c) manage the person's own financial affairs. It is my professional opinion, based upon my knowledge of and involvement with Mrs. Thetford, that she has become an "Incapacitated Person" over the past several months.
The physician's certificate added that Verna's prognosis was "poor [and] increasing in severity" with no possibility of improvement, and that "no limitations [should be] placed on guardian's powers. Proposed ward needs assistance managing her affairs."
Brown's office notes stated that "Verna is here for a mental status exam, she is alone and states that she does not need help and never has. Her niece Jamie was suppose[d] to be her[e] but Verna has ‘Revoked’ her." His affidavit added:
6. I did not see Mrs. Thetford on March 27, 2017, the date on which she purportedly executed a document revoking a Statutory Durable Universal and Health Care Power of Attorney and Designation of Guardian Before Need Arises, and Directive to Physicians, executed on July 22, 2015, that she had previously executed appointing Jamie Kay Rogers as her agent and attorney in fact, medical power of attorney and guardian before need arises. However, Mrs. Thetford's dementia and diminished capacity has been ongoing and increasing in severity, especially during the past few months. Based upon my knowledge of and involvement with Mrs. Thetford and her
condition, it is my diagnosis that her incapacity, as that term is defined by the Texas Estates Code, was persistent, ongoing, and very likely present on March 27, 2017, and for several months before such date.
Verna answered on April 17, represented by Robert E. Aldrich, Jr., an attorney in Fort Worth, and on April 28, moved to disqualify Allen as Jamie's counsel. The motion asserted that "Alfred G. Allen, III, at all times material to the matters involved in this proceeding, has represented [Verna]", that Allen had "obtained confidential information" during his representations of [Verna] that "could be used to [her] disadvantage ... in the current matter", and that she objected to his representation of Jamie in violation of his fiduciary duties to her. The motion further alleged that Verna had asked Allen to foreclose the deed of trust lien securing her loan to the Rogerses and to help her change her will, but he had refused, and that "if successful in having Verna Thetford found incompetent," Jamie would "cement[ her] ability to inherit all of [Verna's] property". Verna attached to her response to Jamie's application for a temporary guardianship a statement from Scott Hilborn, Ph.D., a clinical neuropsychologist in Fort Worth, who stated that he had examined Verna on April 19. She was accompanied, Hilborn said, by Eddie Dalton, a "family friend and former employee," who "served as an additional informant." According to Hilborn, Verna believed that Jamie had been prompted to have her deemed incompetent because the Rogerses' note was coming due. After administering several tests to Verna, Hilborn concluded: "She does not meet criteria for a dementia at this time and she has the capacity to live independently, reasonably determine her place of residence, make medical decisions, manage her medications in her own best interest, and make financial decision[s] in her own best interest at this time."
In a response to Verna's motion to disqualify Allen, Jamie asserted that the note to the Thetfords had been paid in full on April 28, with 18% interest for the delay. Jamie argued that "the Texas Disciplinary Rules of Professional Conduct place a mandatory duty on Allen to secure the appointment of a guardian for the person and ... estate of Mrs. Thetford due to his reasonable belief that she lacks legal competence". Jamie's response cited Rule 1.02(g), which states:
A lawyer shall take reasonable action to secure the appointment of a guardian or other legal representative for, or seek other protective orders with respect to, a client whenever the lawyer reasonably believes that the client lacks legal competence and that such action should be taken to protect the client.
L.D. died on April 29. On May 9, the trial court heard the motion to disqualify. Verna was represented by Aldrich and by an attorney ad litem appointed by the court, Toby L. Reddell, of Graham. Jamie was represented by Allen. Aldrich argued that "Allen admits his representation of Ms. Thetford", had "made a judicial admission" to that effect, and had "continually represented my client for a long time". "I don't think," Aldrich continued, "given the fact that in his response Mr. Allen admits his representation of Ms. Thetford, that we need to put on a bunch of evidence." Aldrich argued that Allen's representation of Jamie without Verna's consent was a conflict of interest under Rules 1.06(a) and (b), which state:
(a) A lawyer shall not represent opposing parties to the same litigation.
(b) In other situations and except to the extent permitted by paragraph (c), a lawyer shall not represent a person if the representation of that person:
(1) involves a substantially related matter in which that person's interests are materially and directly adverse to the interests of another client of the lawyer ...; or
(2) reasonably appears to be or become adversely limited by the lawyer's or law firm's responsibilities to another client or to a third person or by the lawyer's ... own interests.
Allen acknowledged that he was still representing Verna when he filed the application for guardianship on Jamie's behalf. Relying on Rule 1.02(g), Allen stated: "I stand here to tell the Court that it's my opinion I am doing what's in the best interest of Mrs. Thetford by representing Ms. Rogers in this application." At the conclusion of the 40-minute hearing, at which the court considered only counsel's arguments and the written statements of physicians Brown and Gilford, the court announced: "I'm going to deny the disqualification of counsel, but"—then speaking directly to Allen—"it's at your peril. If there's something brought under the disciplinary rules, someone else besides me is going to make a decision as to whether or not you violated that rule."
For the rest of that day and all of the next, the court heard evidence on Jamie's application for temporary guardianship. Jamie, Larry, Verna's stepson, and two Brookdale caregivers testified that Verna needed a guardian. Verna, Crawford, and Dalton testified that she did not. In her hour-long testimony, Verna was asked by both Aldrich and Allen about the details of various matters, and she was able to recall some details but not others. At the conclusion of the hearing, the court signed an order appointing Jamie as temporary guardian for Verna for 60 days on a $ 2,500 bond and appointing one of Verna's banks to manage her property. The order found:
2. There is substantial evidence that [Mrs. Thetford] may be an incapacitated person;
3. There exists an imminent danger that the physical health or safety of Mrs. Thetford will be seriously impaired and that Mrs. Thetford's estate will be seriously damaged or dissipated unless immediate action is taken;
4. There is an immediate need for the appointment of a temporary guardian and the creation of a Management Trust;
5. Alternatives to guardianship that would avoid the need for the appointment of a Temporary Guardian and the establishment of a Management Trust have been considered and determined not to be feasible;
* * *
9. It is in the best interest of Mrs. Thetford that a temporary guardian of the person be appointed to promote and protect Mrs. Thetford's well-being;
10. It is in the best interest of Mrs. Thetford that a Management Trust be established to protect and manage her estate;
11. JAMIE KAY ROGERS is a suitable person to act as Temporary Guardian and is not disqualified by law from acting as such; and
12. CIERA BANK is a suitable entity to act as Trustee of a Management Trust and is not disqualified by law from acting as such.
The order broadly gave Jamie "all powers" over Verna's person and removed Verna's right to travel, make gifts, drive a vehicle, and execute legal documents and contracts. Verna sought review of the denial of the motion to disqualify by mandamus and appealed Jamie's appointment as her temporary guardian. The court of appeals denied mandamus relief with a summary opinion on June 15, and Verna petitioned for mandamus relief in this Court. We requested briefing.
On October 9, Verna was re-evaluated by C. Munro Cullum, Ph.D., Chief of the Division of Psychology at U.T. Southwestern Medical Center. He reviewed all Verna's medical records and Hilborn's examination of her, and while he agreed that Hilborn had thoroughly tested Verna, he disagreed with Hilborn's conclusions. Interviewing Verna himself, Cullum found her to be "engaging", "oriented to time, place, and person", and "able to walk unassisted", but with "significant visual limitations and hearing loss". He noted that she "expressed concerns about a ‘conspiracy’ of various people and public officials collaborating to remove her independence, and strongly expressed the opinion that she does not feel that she has any problems with her cognitive abilities or needs assistance with managing her affairs." But Cullum observed that "such expressions are not uncommon in individuals with dementia and reflect a lack of awareness/denial, as well as some suspiciousness or paranoid ideation." He concluded:
Based upon my interviews with Ms. Thetford and others who know her, in addition to my review of medical records and neuropsychological data, it is clear that she meets full diagnostic criteria for dementia. She demonstrates a rather severe memory impairment as well as deficits in other cognitive abilities. A diagnosis of dementia is also consistent with the impression of her primary care physician who has known her for years, and is further supported by the results of Dr. Hilborn's neuropsychological evaluation which demonstrated significant impairments across multiple cognitive ability areas, including learning and memory, language, attention, and global cognitive functioning. These findings are quite consistent with the reports of those who know her well, all of whom provided examples of her forgetting recent information and decisions she has made.
As with other individuals who are diagnosed with a neurodegenerative dementia, her condition is likely to worsen over time, and there are no effective treatments available that would significantly improve her functioning. In addition to dementia, she has significant visual and hearing impairments, which together make her functionally incapacitated and unable to provide for many of her basic needs and manage her affairs.
Activities like cooking, managing medications and finances, keeping up with bills, etc. are beyond her abilities at this point. As such, Ms. Thetford's cognitive and functional limitations would place her safety in question if she were to attempt to live and manage her affairs independently, and she is also at risk for making poor decisions and forgetting things that she has decided. It is therefore in her best interest that [sic] to have a permanent guardian to assist with management of her estate and personal needs.
Pending conclusion of the proceedings in this Court, the trial court extended Jamie's temporary guardianship and the management trust over Verna's estate without objection from Verna, and the court of appeals granted Verna's unopposed motion to abate her appeal. We heard argument on Verna's petition for mandamus on October 10, 2018.
On March 5, 2019, Jamie notified the trial court of a significant change in Verna's circumstances.
On February 28, 2019, caregivers at Elmcroft (formerly Brookdale), in Graham, Texas, telephoned [Jamie] to report that [Verna] was hallucinating about a fire and could not be calmed down or controlled. [Verna] was apparently seeing fires on the ceiling, on the floors, and on the walls of her room. She was attempting to physically stomp out the fire she believed she was seeing, and she was pouring water on the walls, floor, and electrical outlets. There was no fire.
Because [Verna] would not calm down, was fighting with personnel and the caregivers called to the scene, and her refusal to take medicine voluntarily, Elmcroft personnel called 911. [Verna] refused to allow the EMT's to transport her to the Graham Emergency Room or to voluntarily take medication, so a sedative was administered at the instruction of [Jamie], and [Verna] was transferred to the Graham Emergency Room.
Deeming Verna to be a danger to herself and others, Elmcroft refused to readmit her. Several days later, Jamie managed to have Verna accepted at the James L. West Center for Dementia Care in Fort Worth. Jamie paid some $ 11,000 of the transfer expenses out of her own pocket and requested the trial court to allow reimbursement from Verna's estate. Over the course of the trial and appellate proceedings, Allen and Jamie's appellate counsel have been paid over $ 200,000 in attorney fees from Verna's estate. Reddell, Verna's attorney ad litem, has been paid almost $ 9,000 in attorney fees from the estate. Aldrich has requested payment of over $ 230,000 of attorney fees from the estate, which the trial court has denied.
By letter dated March 15, 2019, Reddell reported to the trial court that he had spoken with Verna at the James L. West Center; that she "was unwavering" in her intention to move back to her home in Graham or to move in with Dalton and his wife; but that the Center, "a polished facility," and Jamie were providing Verna everything she needed. "I firmly believe," Reddell concluded, "that this facility is where Mrs. Thetford needs to be."
II
Allen argues here, as he did in the trial court, that Rule 1.02(g) required him, as Verna's lawyer at the time, to institute guardianship proceedings for her by also representing the applicant, Jamie. Verna contends that Rule 1.02(g) does not apply because "the record reflects that [she] was not Allen's client in 2017" and that Allen's representation of Jamie is a conflict of interest under Rule 1.09(a)(3), which states: "Without prior consent, a lawyer who personally has formerly represented a client in a matter shall not thereafter represent another person in a matter adverse to the former client: ... (3) if it is the same or a substantially related matter." Alternatively, Verna argues, as she did in the trial court, that "if [she were] Allen's client in 2017, and Rule 1.02(g) [did] apply to this case, then Allen ran afoul of Rule 1.06(a)" or 1.06(b). We begin by considering the interplay of Rules 1.02(g), 1.06(a)–(b), and 1.09(a)(3).
Relator's Reply Br. 1. Verna appears to have taken the opposite position in the trial court, asserting that Allen had judicially admitted that he represented her at the time the application for guardianship was filed, and arguing not that Rule 1.02(g) was inapplicable, but that Allen's actions were not reasonable as required by the rule. In this Court, Verna argues that Allen should have been disqualified whether she was his client in 2017 or not because she is unquestionably his former client. See Relator's Br. 13 & n.4 ("Allen's representation of Rogers is substantially related to his prior—or concurrent—representation of Thetford.").
The dissent claims that "Thetford maintains Allen is still her attorney." Post at 382. The dissent's only support for this assertion is that "Thetford has continually argued to this Court that Rule 1.06—regarding current client conflict of interest—applies." But Verna also states clearly in her briefs that she is Allen's former client. See Relators Br. 9 ("Allen's representation of Rogers in this guardianship proceeding is adverse to Thetford, Allen's former client"); id. at 27 ("Allen's representation of Rogers in this guardianship proceeding is adverse to Thetford and substantially related to Allen's prior representation of Thetford."); Relator's Reply Br. 1 ("[T]he record reflects that Thetford was not Allen's client in 2017; rather, Thetford had hired another attorney to revoke the power of attorney, which led to the guardianship proceeding."). Further, the dissent claims that "Allen seems to agree [that he still represents Verna], stating at oral argument to this Court that ‘I really do view it that I'm representing Mrs. Thetford.’ " Post at 382. But that statement is not so clear in context:
Justice: Are you, as counsel who has filed the application for the guardianship—have you taken the position in the guardianship that Ms. Rogers should be the one appointed as guardian and only Ms. Rogers?
Allen: I've taken that position because that is what Mrs. Thetford told me in 2015 ... when she had capacity.
Justice: [W]ho is the client on whose behalf you are taking that position?
Allen: I view it, I really do view it that I'm representing Mrs. Thetford. Mrs. Thetford needs a guardian.
Though the last question is asked and answered in the present tense, both may refer back to the time the application was filed and not subsequently. In any event, Jamie, represented by Allen, has not asserted in any brief filed here that Allen has represented Verna at any time since she filed a response to the application, represented by other counsel.
Relator's Reply Br. 1.
Relator's Br. 5–6.
Rule 1.02(g) requires a lawyer to "take reasonable action to secure the appointment of a guardian or other legal representative for, or seek other protective orders with respect to, a client whenever the lawyer reasonably believes that the client lacks legal competence and that such action should be taken to protect the client." The comments to the rule add that a lawyer should take these protective steps "when it reasonably appears advisable to do so in order to serve the client's best interests." At least one court of appeals has concluded that Rule 1.02 requires a lawyer to file an application for guardianship on behalf of an incapacitated client when the lawyer reasonably believes guardianship is needed.
R. 1.02 cmt. 13.
See Franks v. Roades , 310 S.W.3d 615, 627 (Tex. App.—Corpus Christi 2010, no pet.) (when an attorney who reasonably believed his client was incompetent "filed the application [for guardianship], he was acting under [Rule 1.02(g) ], which required him to seek the guardianship").
But while Rule 1.02(g) requires an attorney to take "reasonable action" to protect a client, which may include appointment of a guardian, the rule does not mandate a guardianship. There may be other, better ways to protect the client. Allen, for example, could have notified the trial court of Verna's potential incapacity and the need for a guardian, which the court would have been required to investigate. He also could have pursued one of the numerous less-restrictive alternatives to guardianship. And even if Allen believed guardianship were necessary, he could have helped Jamie find another attorney. Rule 1.02's requirement that an attorney take "reasonable action" to protect a client expressly allows , but does not also require , the attorney to institute a guardianship proceeding. Verna argues that Rule 1.02(g) does not apply because she was not Allen's client in 2017 and that his representation of Jamie was a conflict of interest in violation of Rule 1.09. Even if Rule 1.02(g) did apply, Verna contends, it would not allow a conflict of interest that Rule 1.06(a) or (b) prohibits. We need not decide whether Verna was still Allen's client or his former client when he undertook to represent Jamie or whether Rule 1.02(g) applies. Even if it did, it did not mandate that Allen initiate the guardianship but must be read together with the conflict-of-interest rules to determine whether filing the application for Jamie was "reasonable action". Rule 1.02(g) does not trump the conflict-of-interest rules.
See Tex. Est. Code § 1002.0015 (laying out nine alternatives less restrictive than a guardianship).
III
Rules 1.06(b) and 1.09(a)(3) forbid a lawyer from taking on a representation that is adverse to a current or former client in a substantially related matter. Although the rules do not have the force of law, they "provide guidelines and suggest relevant considerations." We have repeatedly said that lawyers who violate the conflict-of-interest rules must be disqualified because there is an irrebuttable presumption that a lawyer obtains a client's confidential information during representation. Although the attorney will not be presumed to have shared that information with his current client, the "appearance of impropriety" demands that the trial court disqualify counsel.
In re EPIC Holdings, Inc. , 985 S.W.2d 41, 48 (Tex. 1998) (quoting Nat'l Med. Enters., Inc. v. Godbey , 924 S.W.2d 123, 132 (Tex. 1996) ); accord Henderson v. Floyd , 891 S.W.2d 252, 254 (Tex. 1995) (orig. proceeding) (per curiam) ("Rule 1.09 cannot be an absolute test for disqualification of counsel".).
See In re Columbia Valley Healthcare Sys., L.P. , 320 S.W.3d 819, 824 (Tex. 2010) (orig. proceeding) (citing Phx. Founders, Inc. v. Marshall , 887 S.W.2d 831, 833 (Tex. 1994) ); NCNB Tex. Nat'l Bank v. Coker , 765 S.W.2d 398, 400 (Tex. 1989). We have been unclear about when the conclusive presumption that the lawyer obtained confidential information in lawyer disqualification cases attaches. In Coker , we said that for the presumption to attach, the movant must establish that the current matter is substantially related to the former representation. 765 S.W.2d at 400 ("If this burden [of showing substantial relation] can be met, the moving party is entitled to a conclusive presumption that confidences and secrets were imparted to the former attorney."). But in later cases, we eschewed the condition of showing substantial relation. See Phx. Founders , 887 S.W.2d at 833 ("This strict [disqualification] rule is based on a conclusive presumption that confidences and secrets were imparted to the attorney during the prior representation."); Columbia Valley Healthcare Sys. , 320 S.W.3d at 824 ("If the lawyer works on a matter, there is an irrebuttable presumption that the lawyer obtained confidential information during representation."). The newer, broader rule is the better rule, and we reaffirm it here.
Coker , 765 S.W.2d at 400.
Lawyer disqualification is "a severe remedy" that "can result in immediate and palpable harm, disrupt trial court proceedings, and deprive a party of the right to have counsel of choice." In a guardianship proceeding, the harm may be even greater. A lawyer who was familiar with the ward's needs and desires before she became incapacitated is potentially helpful to the trial court. Accordingly, a trial court evaluating a disqualification motion "must strictly adhere to an exacting standard". A party moving for disqualification based on a violation of a disciplinary rule must "establish with specificity" that the disciplinary rule was violated. We review a trial court's refusal to disqualify a lawyer for abuse of discretion. "A trial court abuses its discretion when it acts in an unreasonable or arbitrary manner or, stated differently, when it acts without any reference to guiding rules or principles."
Spears v. Fourth Court of Appeals , 797 S.W.2d 654, 656 (Tex. 1990) (orig. proceeding) (citing Coker , 765 S.W.2d at 400 ).
In re Nitla S.A. de C.V. , 92 S.W.3d 419, 422 (Tex. 2002) (orig. proceeding) (per curiam).
Id. (citing Spears , 797 S.W.2d at 656 ).
Spears , 797 S.W.2d at 656 (citing Coker , 765 S.W.2d at 400 ).
In re Turner , 542 S.W.3d 553, 555 (Tex. 2017) (orig. proceeding) (per curiam).
In re Meador , 968 S.W.2d 346, 353 (Tex. 1998) (orig. proceeding).
The conflict-of-interest standards under Rules 1.06(b) and 1.09(a)(3) are materially the same in the circumstances presented. To prevail in having Allen disqualified, Verna must show that (1) Allen's representations of her are substantially related to the matters in the guardianship proceeding, and (2) the guardianship proceeding is adverse to her. We consider each prong in turn.
A
We first turn to whether Allen's representations of Verna—drafting her will and the power of attorney —are substantially related to the guardianship proceeding. The rules do not define "substantially related." According to the comments, "it primarily involves situations where a lawyer could have acquired confidential information concerning a prior client that could be used either to that prior client's disadvantage or for the advantage of the lawyer's current client or some other person." We have held that matters are substantially related when the similarity of the facts involved "creates a genuine threat that confidences revealed to [the client's] former counsel will be divulged to his present adversary." Neither conclusory statements of similarities nor facial similarities will suffice—the movant must delineate specific facts that tie the former and current representations together. But while producing specific overlapping facts is necessary to show substantial relation, it is not sufficient. The test is whether those facts create "a genuine threat of disclosure."
Verna also states in her brief that Allen's prior representation of her in the loan transaction between the Rogerses and the Thetfords is substantially related to the issues in the guardianship proceeding, but then she does not argue the point. Because the note is clearly unrelated to the guardianship proceeding, we do not address it.
R. 1.09 cmt. 4B.
Coker , 765 S.W.2d at 400.
See id. ; see also J.K. & Susie L. Wadley Research Inst. & Blood Bank v. Morris , 776 S.W.2d 271, 278 (Tex. App.—Dallas 1989, orig. proceeding) ("A superficial resemblance between issues is not enough to constitute a substantial relationship ....").
In re Turner , 542 S.W.3d 553, 557 (Tex. 2017) (orig. proceeding) (per curiam) (emphasis omitted) (quoting Grant v. Thirteenth Court of Appeals , 888 S.W.2d 466, 467 (Tex. 1994) (orig. proceeding) (per curiam)).
We must presume, as a matter of law, that Verna shared confidences with Allen related to her estate planning and possible future incapacity when he prepared her will and power of attorney. But whatever she may have told Allen confidentially in the course of his representation of her that is reflected in the instruments he prepared is open knowledge. She attached both as exhibits to her pleadings in the trial court. There can be no threat of disclosure of confidences that the movant has already revealed to her adversary. Verna claims that she shared confidential information "regarding the nature of the estate and [her] intention with regard to her estate's disposition" that "goes beyond the four corners of her will." It is hard to imagine how her intention for disposing of her estate would not be directly reflected in the will itself, for that is its very purpose. But even assuming such confidences exist, Verna has not shown how they are substantially related to the guardianship proceeding, the purpose of which is to determine whether Verna is currently incapacitated. Verna's petition only points to facial similarities between the representations. Estate planning and guardianship are similar in that they are both end-of-life matters. But that is the very sort of superficial comparison that cannot govern lawyer disqualification. The test is whether that similarity creates a genuine threat that Allen will reveal Verna's confidences to Jamie, and there is not because any possible remaining confidences to which Verna has alluded are irrelevant to the guardianship proceeding.
See In re Columbia Valley Healthcare Sys., L.P. , 320 S.W.3d 819, 824 (Tex. 2010) (orig. proceeding).
See Metro. Life Ins. Co. v. Syntek Fin. Corp. , 881 S.W.2d 319, 321 (Tex. 1994) (per curiam) (affirming trial court's denial of disqualification where the confidential information at issue was publicly available and had been provided by the movant to the opposing party during discovery).
The dissent argues repeatedly that in representing Jamie, Allen may "draw[ ] on his knowledge and experience of Thetford's mental capacity". Post at 386. "[T]here is no telling what information Thetford might have candidly shared concerning her mental state that informed her estate-planning decisions." Post at 386. The dissent supposes that "[t]he most intimate confidences a client might convey to her attorney is her awareness that her mental capacity is beginning to slip and her request that an attorney help her plan for a future in which she can no longer care for herself." Post at 386. But nothing in this record remotely suggests that Verna began to "slip" until a year after she executed her will and power of attorney. All Allen knew in preparing those instruments for her was that she was completely sound; otherwise he would not have represented her. Verna carries the burden of showing that there is a genuine threat that her confidences will be revealed, and she has not met her burden. She did not make the arguments the dissent makes; the closest she comes is asserting that Allen was "a witness to [her] legal capacity in 2015". Relator's Br. 14. That is not enough.
Because Verna has not shown that Allen's prior representations of her create a genuine risk that he will reveal her confidences to Jamie, we find that they are not "substantially related" to the underlying guardianship proceeding.
The proceedings in the trial court since its ruling on the motion to disqualify establish unquestionably that Allen could not have had confidential information from his estate-planning representation of Verna that was in any way related to the guardianship, demonstrating that disqualification must not be based on speculation and conclusory statements but on specific facts.
B
Next we consider whether Allen's representation of Jamie in the guardianship proceeding, without Verna's consent, is adverse to Verna. We have held that in the context of lawyer disqualification, "[a]dversity ... is a product of the likelihood of the risk [that a lawsuit poses to a person's interests] and the seriousness of its consequences." While Rule 1.09 does not define adversity, the comments to Rule 1.06 define "directly adverse" as follows:
In re EPIC Holdings, Inc. , 985 S.W.2d 41, 50 (Tex. 1998) (orig. proceeding) (second alteration in original) (quoting Nat'l Med. Enters., Inc. v. Godbey , 924 S.W.2d 123, 132 (Tex. 1996) ).
Within the meaning of Rule 1.06(b), the representation of one client is "directly
adverse" to the representation of another client if the lawyer's independent judgment on behalf of a client or the lawyer's ability or willingness to consider, recommend or carry out a course of action will be or is reasonably likely to be adversely affected by the lawyer's representation of, or responsibilities to, the other client. The dual representation also is directly adverse if the lawyer reasonably appears to be called upon to espouse adverse positions in the same matter or a related matter.
R. 1.06 cmt. 6. We have approved using this definition as guidance in interpreting the meaning of "adverse" in Rule 1.09. Nat'l Med. Enters. , 924 S.W.2d at 132 ("Rule 1.09 does not define ‘adverse’, so the district court turned, correctly, we think, to the dictionary definition of the word, and to the definition of ‘directly adverse’ in Rule 1.06, comment 6.").
Rule 1.06(a) prohibits a lawyer from "represent[ing] opposing parties to the same litigation." The comments to the rule shed more light on the concept of adversity:
The term "opposing parties" as used in this Rule contemplates a situation where a judgment favorable to one of the parties will directly impact unfavorably upon the other party. Moreover, as a general proposition loyalty to a client prohibits undertaking representation directly adverse to the representation of that client in a substantially related matter unless that client's fully informed consent is obtained and unless the lawyer reasonably believes that the lawyer's representation will be reasonably protective of that client's interests.
R. 1.06 cmt. 2.
As the comment indicates, Rule 1.06(a) incorporates the conflict-of-interest concept in Rule 1.06(b). In short, our precedent and the rules contemplate that a proceeding is adverse to a person if it poses a risk to their interests—if a judgment favorable to another party would harm that person's interests. And a lawyer's representation of one client is adverse to another client if the lawyer's ability to faithfully and loyally represent his other client is compromised.
Of course, as noted above, Allen has not purported to represent Verna since filing the application for Jamie.
Generally, "[p]roceedings for the appointment of a guardian are not adversary in character." They are designed to "promote and protect the well-being of the incapacitated person." An appointment of a guardian may not impact a ward unfavorably but instead be in the ward's best interests. Indeed, Rule 1.02(g) expressly permits a lawyer to "secure the appointment of a guardian" for his client when "reasonable" to assure the client's well-being. Nevertheless, guardianship strips the ward of fundamental rights, a severe consequence if guardianship is unwarranted, so that even a slight risk posed to the proposed ward's interests may be sufficient to create adversity. And the rules are silent as to whether the lawyer of an incapacitated client may represent a third party seeking guardianship over his client.
Henderson v. Shell Oil Co. , 202 S.W.2d 492, 497 (Tex. Civ. App.—Fort Worth 1947), aff'd , 146 Tex. 467, 208 S.W.2d 863 (1948) ; accord Franks v. Roades , 310 S.W.3d 615, 627 (Tex. App.—Corpus Christi 2010, no pet.) ("Guardianships are not inherently adversarial proceedings; thus, the applicant is not automatically adverse to the ward."); McKinley v. Salter , 136 S.W.2d 615, 624 (Tex. Civ. App.—El Paso 1939, writ dism'd judgm't cor.) ("Proceedings for the appointment of a guardian are not adversary in their nature."), appeal dism'd , 312 U.S. 659, 61 S.Ct. 734, 85 L.Ed. 1106 (1941).
See Nat'l Med. Enters. , 924 S.W.2d at 133 (holding that a matter was adverse to movant for lawyer disqualification where risk of movant being negatively affected by the representation was small, but the consequences would be great).
We have not addressed under what conditions a guardianship could be adverse to the ward, but the American Bar Association (ABA), the American Law Institute (ALI), and other jurisdictions have. We first consider these nonbinding but persuasive authorities and propose a general rule, which we then apply to the facts at hand.
1
ABA Model Rule 1.14(b) states:
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.
Model Rules of Prof'l Conduct r. 1.14(b) ( Am. Bar. Ass'n 1983).
The rule is substantially the same as Texas Rule 1.02(g). In a 1994 opinion, the ABA's Commission on Ethics and Professional Responsibility reasoned that filing a petition for guardianship "by its very nature must be regarded as ‘adverse’ to the client" because it "will take away the client's fundamental right of independence." The Commission concluded that Rule 1.14's permission for a lawyer to file a petition for guardianship on behalf of an incapacitated client is a "narrow exception" to the conflict-of-interest rules. Because the rule does not expressly permit a lawyer to represent a third party seeking to have a guardian appointed for his client, "[s]uch a representation would necessarily have to be regarded as ‘adverse’ to the client and prohibited by [the conflict-of-interest rule], even if the lawyer sincerely and reasonably believes that such representation would be in the client's best interests, unless and until the court makes the necessary determination of incompetence." "[N]othing in the rule suggests that the lawyer may represent a third party in taking such action, and after considerable analysis, the Committee concludes that a lawyer with a disabled client should not attempt to represent a third party petitioning for a guardianship over the lawyer's client."
Id.
ABA Comm'n on Ethics & Prof'l Responsibility, Formal Op. 96-404, at 7 (1996).
Id.
Id.
The obvious problem with the ABA opinion is that it is not founded on the text of Model Rule 1.14, which broadly allows a lawyer to "take reasonably necessary protective action, including ... seeking the appointment of ... a guardian." The opinion justifies its extremely narrow reading of the rule by arguing that guardianships are always adverse. But the ABA provides scant justification for this sweeping declaration—only that a guardianship takes away the ward's fundamental rights. The ABA also prioritizes the conflict-of-interest rules over the lawyer's judgment about what's in the best interests of the client, going as far as to prohibit the lawyer from representing a third party seeking guardianship over his client even if he reasonably believes it would be in the client's best interests. But if a lawyer's pursuit of a guardianship on behalf of a client should be so strictly limited—regardless of the ward's best interests—then Model Rule 1.14 should so state.
The rule requiring reasonable action to protect an incapacitated client should be read together with conflict-of-interest rules and not as an inconsistent exception. This is what the ALI's Restatement (Third) of the Law Governing Lawyers does. Section 24A provides, in part, that a lawyer representing a client with diminished capacity must act in the best interests of the client by "pursu[ing] the lawyer's reasonable view of the client's objectives or interests as the client would define them if able to make adequately considered decisions on the matter, even if the client expresses no wishes or gives contrary instructions." Like the ABA's model rule and the Texas rule, the Restatement permits a lawyer to seek a guardian for a client "when doing so is practical and will advance the client's objectives or interests." The comments expand upon the rationale for this flexible rule: "[A] lawyer must often exercise an informed professional judgment in choosing among ... imperfect alternatives". And "[i]n some cases, different views about the client's welfare may be presented by opposing counsel for a tribunal decision." Although the Restatement does not directly address adversity, it gives a lawyer wide latitude to act in his client's best interests—including bringing a guardianship proceeding against the client's instructions in her incapacitated state, even against opposing counsel—and implies that such actions are not adverse to the client.
Restatement (Third) of the Law Governing Lawyers § 24A ( Am. Law Inst. 2000).
Id.
Id. cmt. b.
Id.
Courts or ethics advisory committees in several states have considered this issue. Most, like the ABA, have concluded that guardianship petitions are inherently adverse, and so an incapacitated client's lawyer may initiate a guardianship but may not represent a prospective guardian. Others have held or opined that an incapacitated client's lawyer may not represent a third party seeking guardianship over his client where the incapacitated client opposes the guardianship or the guardianship would be against the client's interests. At least one has concluded that it is permissible for an incapacitated client's lawyer to represent a third party seeking guardianship in some circumstances.
Att'y Grievance Comm'n of Maryland v. Framm , 449 Md. 620, 144 A.3d 827, 848 (2016) ; Dayton Bar Ass'n v. Parisi , 131 Ohio St.3d 345, 965 N.E.2d 268, 274 (2012) ; In re Wyatt's Case , 159 N.H. 285, 982 A.2d 396, 410 (2009) ; In re Discipline of Laprath , 670 N.W.2d 41, 58 (S.D. 2003) ; Colo. Bar Ass'n Ethics Comm., Formal Ethics Op. 126 (May 6, 2015); Utah State Bar Ethics Advisory Op. Comm., Op. 08-02, 2008 WL 2110963 (Mar. 11, 2008) ; S.C. Bar Ethics Advisory Comm., Ethics Advisory Op. 05-11, 2005 WL 1704509 (July 15, 2005) ; Va. State Bar, Va. Legal Ethics Op. 1769, 2002 WL 31999376 (Feb. 10, 2003).
In re Stein , 143 N.M. 462, 177 P.3d 513, 520 (N.M. 2008) (holding that it was a conflict of interest for a lawyer to represent both an incapacitated husband and his wife seeking to be his guardian where the wife simultaneously sought control over her husband's finances in federal court, showing her adverse interest in the outcome of the guardianship proceeding); N.Y. State Bar Ass'n Comm. Prof'l Ethics, Op. 986, 2013 WL 11324019 (Oct. 25, 2013) (concluding that a lawyer could not represent a client's sister petitioning for guardianship for the client when the sister's plans conflicted with the client's stated wishes for living arrangements); Mass. Bar Ass'n Comm. Prof'l Ethics, Op. 05-05 (May 2005) (opining that a lawyer may not represent a client's son in seeking guardianship for the client if the client contests the guardianship); State Bar of Mich. Eth. Op. RI-176 (Oct. 29, 1993) (reasoning that a lawyer may not represent both a mother and her daughter in guardianship proceedings for mother, even with the mother's consent, when their interests were adverse because the mother had formerly opposed guardianship); Wash. State Bar Ass'n, Advisory Op. 980 (1986) (reasoning that a lawyer who represented a husband and wife could not represent the wife in petition for guardianship for the husband "if the lawyer were aware of an actual conflict of interest or the use of confidences or secrets").
R.I. Supreme Court Ethics Advisory Panel Op. 2004-1 (2004) (opining that it is not a conflict of interest for a lawyer to represent a third party petitioning for guardianship over lawyer's elderly client when the lawyer reasonably believes guardianship is in the client's best interests).
We find the Restatement 's approach the most compelling. Rather than a bright-line rule, its flexible approach better accommodates the challenges lawyers, families, and trial courts face when trying to best protect the incapacitated elderly. We would hold that for a guardianship proceeding to be adverse, the applicant's interests must be adverse to the proposed ward's objectives or interests as the proposed ward would have defined them when she had capacity. In the absence of evidence of how the proposed ward would have defined her interests, we think adversity exists when the applicant's interests would not promote and protect the proposed ward's well-being. It follows that a lawyer may represent a third party seeking guardianship over his incapacitated client if the lawyer reasonably believes the representation is in his client's best interests as the client would have defined it when she had capacity.
See Betts v. Brown , No. 14-99-00619-CV, 2001 WL 40337, at *4 (Tex. App.—Houston [14th Dist.] Jan. 18, 2001, no pet.) ("[A]n interest is adverse to a proposed ward under [the predecessor to Texas Estates Code section 1055.00]", which governs standing to commence or contest a guardianship proceeding, "when that interest does not promote the well-being of the ward.").
The dissent agrees that "not all guardianship proceedings are inherently adverse" but argues that "a guardianship proceeding in which the proposed ward contests the guardianship is inherently adverse." Post at 387. But the flaw in the argument is that the proposed ward may lack the capacity to contest the proceeding, despite trying to do so. That is what the trial court determined here. The dissent argues that this proceeding is adverse because a guardian is not what "Thetford wants", but what she says she wants cannot determine adversity if she is incapacitated. The dissent states that "whether the guardianship proceeding is adverse for disqualification purposes should not turn on whether the guardianship is ultimately warranted." Post at 388. We agree, but the likelihood that incapacity will be shown is something the trial court should consider.
2
For this guardianship proceeding to be adverse to Verna, Jamie's interests would have to be adverse to Verna's interests as seen by Verna before she became incapacitated. Here, we have direct evidence of what those interests are: the power of attorney shows that before her dementia worsened, Verna wanted Jamie to serve as her guardian if the need ever arose. Verna counters that she currently opposes the guardianship, but this does not, by itself, create adversity. Proposed wards often believe, mistakenly, that they do not need a guardian. Further, nothing in the record indicates that Jamie has interests adverse to Verna's well-being. Verna makes much of the fact that Jamie was indebted to the Thetfords at the time Jamie applied for guardianship. But Jamie fully paid off the note before any hearings and before her appointment as temporary guardian, and the Estates Code expressly permits a person who was formerly indebted to the proposed ward to be appointed as guardian. A prior debt creates no present adverse interest for purposes of Rules 1.06 and 1.09. Moreover, that Jamie stands to inherit under Verna's will does not create adversity because when Verna still possessed all of her faculties, she executed a will documenting her clear objective that Jamie be a beneficiary.
See, e.g. , Henderson v. Shell Oil Co. , 202 S.W.2d 492, 497 (Tex. Civ. App.—Fort Worth 1947), aff'd , 146 Tex. 467, 208 S.W.2d 863 (1948) ; Franks v. Roades , 310 S.W.3d 615, 627 (Tex. App.—Corpus Christi 2010, no pet.). In his statement about Verna's mental state, Dr. Cullum noted that while Verna expressed a strong opinion that she does not have cognitive disabilities or need assistance with managing her affairs, "such expressions are not uncommon in individuals with dementia and reflect a lack of awareness/denial."
See Tex. Est. Code § 1104.354 ("A person may not be appointed guardian if that person: ... (2) is indebted to the proposed ward, unless the person pays the debt before appointment ...." (emphasis added)); see also In re Guardianship of Miller , 299 S.W.3d 179, 189 (Tex. App.—Dallas 2009, no pet.) (en banc) (an applicant's debt to ward does not create an adverse interest divesting the debtor of standing to file a guardianship because Estates Code section 1104.354 allows appointment once the debt is paid).
We would also hold that Allen's representation of Jamie in the guardianship proceeding is not adverse to Verna. There are myriad ways one seeking guardianship could have interests opposed to that of the proposed ward. For example, had Jamie continued to be indebted to the Thetfords throughout the proceeding, her pecuniary interests would clearly be adverse to Verna's (and she would be statutorily barred from serving as guardian ). Or had Verna designated another person as her preferred guardian in the power of attorney or another legal document, and that person were willing and able to serve as guardian, Allen's representation of Jamie would be adverse to Verna. In most cases, the proposed ward likely will not have clearly spelled out her preferences as Verna did here. The trial court is in the best position to evaluate the facts and circumstances to determine whether adversity exists. Here, there is none.
IV
In guardianship proceedings especially, the heavy responsibility for determining the best resolution of fundamental and emotional issues lies necessarily within the trial court's sound discretion. The State's power is invoked to confiscate the putative ward's constitutional rights to liberty and property, and often even to life, and transfer them to another. It is serious business. And it is a difficult and emotional process that confronts the hardest end-of-life issues. The stakes are high: the guardian has the potential to protect, even save, the ward who is powerless to save herself—but also, tragically, to neglect, abuse, and exploit her. Family and friends may be in the best position to know and fulfill the ward's needs, or sadly, in the worst. An appellate court's review of a trial court's management of guardianship proceedings must be singularly mindful of the trial court's unique opportunity and responsibility to assess the circumstances presented.
The record reflects that the trial court was well aware of the issues, considered them thoughtfully, and made a careful decision. And it is not final. The court can revisit the issue, change its mind later, and disqualify counsel at a later stage if other information comes to light. A trial court's discretion has limits, of course, and the threshold for abuse, when a decision must be reversed, may rise or fall in different situations. In the situation before us, we will not disturb the trial court's discretion in this guardianship proceeding.
The petition for mandamus is denied.
Justice Brown filed a dissenting opinion, in which Justice Devine, Justice Blacklock, and Justice Busby joined.
Justice Brown, joined by Justice Devine, Justice Blacklock, and Justice Busby, dissenting.
A trial judge's discretion in guardianship proceedings should be wide and deep. As the Court correctly observes, so much turns on what the judge can see and hear—what a cold record does not reveal. But as guardianship proceedings become more abundant as our population ages, some situations call for hard-and-fast rules. This is one: Alfred Allen should not be allowed to represent Verna Thetford's niece—his own legal assistant—in a guardianship proceeding against Thetford, a woman he insists to this Court is still his client.
I propose a simple rule: "A lawyer with a disabled client should not attempt to represent a third party petitioning for a guardianship over the lawyer's client." It's a black-and-white rule. Easy to follow. Rooted in common sense. It is the model rule promulgated by the American Bar Association's ethics committee. See ABA Comm'n on Ethics & Prof'l Responsibility, Formal Op. 96-404 (1996). The ABA's model rule, of course, is not binding on us. But we should adopt it, or something like it, as eleven states already have.
We need not impugn Allen's motives to conclude his representation in this matter is inherently conflicted. I believe the disciplinary rules we have in place support this conclusion. But even if they don't, those rules, like the ABA's model rules, are just guidelines. We should not surrender to an interpretation of those rules that stymies their purpose. This case presents an obvious conflict that we have the authority to proscribe. Because the Court declines to take this reasonable step, I respectfully dissent.
I
In 2012, Allen represented Verna Thetford in lending $ 350,000 to her niece, Jamie Rogers. Allen prepared the note and the deed of trust, which named Allen as trustee. Three years later, Allen prepared Thetford's will and a power of attorney. The will named Rogers as a beneficiary, and the power of attorney named her as Thetford's attorney in fact. The power of attorney also designated Rogers as Thetford's preferred guardian "if the need for a guardian later arises."
Rogers and Allen were no strangers—Rogers was Allen's longtime legal assistant. Although Rogers was not working for Allen when he drafted the power of attorney, she returned soon after. Indeed, Rogers was Allen's legal assistant when he initiated this guardianship proceeding against Thetford.
After Thetford was hospitalized in early 2017, Rogers arranged for her to be placed in an assisted-living facility. On March 15, Rogers defaulted on the $ 350,000 note. Shortly thereafter, on March 27, Thetford—represented by a lawyer other than Allen—signed a revocation of Rogers's power of attorney. Two days later, her longtime physician diagnosed her with moderate dementia of increasing severity. He also noted deficits in her short-term memory and that she lacked the ability to make many important decisions.
On April 10, Allen filed an application to have Rogers appointed as Thetford's guardian and for the creation of a management trust. It is undisputed that Rogers was still indebted to Thetford when the application was filed. We can imply from these facts that Allen approached Rogers about the guardianship application, or vice versa, while (1) Rogers was past due on the note owed to Thetford, and (2) Allen was the named trustee on that same note. There is no evidence Allen ever advised Thetford concerning Rogers's default.
It is unclear from the record who first had the idea to initiate the guardianship. However, Rogers's Response Brief claims that "Allen initiated the underlying guardianship proceeding." Response to the Brief on the Merits at 12, In re Thetford , No. 17-0634 (Tex. Mar. 13, 2018).
I acknowledge that a potential ward's indebtedness does not necessarily disqualify her from serving as guardian. See In re Guardianship of Miller , 299 S.W.3d 179, 189 (Tex. App.—Dallas 2009, no pet.) ("[W]e decline to conclude that evidence of a debt alone automatically rises to the level of an adverse interest sufficient to divest a person of standing [to pursue a guardianship application]."). But this case isn't about Rogers. It is about Allen, his representation of Thetford, and his representation of Rogers in a guardianship proceeding against Thetford. And Allen's decision here is troubling. Allen filed a guardianship application against a lender on a note for which he was the trustee. And he did so representing the note's defaulting debtor who also happened to be his own employee. Even if such an arrangement is technically permissible, it's not a good look for anyone involved or for the legal profession at large. Surely Rogers could have found another attorney to pursue the guardianship application. And surely Allen should have suggested she do so.
II
There is some confusion about whether Thetford is Allen's current or former client and which disciplinary rule therefore applies. Because the rules' standards are materially similar, the Court does not definitively hold whether Thetford is Allen's current or former client. But Thetford argues for the application of Rule 1.06, which concerns conflicts of interest arising from concurrent representations. See Tex. Disciplinary Rules Prof'l Conduct R. 1.06(b)(1) ("[A] lawyer shall not represent a person if the representation of that person involves a substantially related matter in which that person's interests are materially and directly adverse to the interests of another client of the lawyer ....") (internal punctuation omitted).
Thetford maintains Allen is still her attorney. And Allen seems to agree, stating at oral argument to this Court that "I really do view it that I'm representing Mrs. Thetford." If both Allen and Thetford believe the attorney-client relationship still exists, we should too. It does not matter, and we need not decide, whether a formal attorney-client relationship still exists. What matters here is that the parties believe it does, and so Allen must act accordingly. I would therefore apply Rule 1.06. While I agree with the Court that the standards for substantial relation and adversity are largely the same under both rules, Rule 1.06 concerns the duties owed to a current client—a circumstance the ABA and eleven other states have spoken to directly.
The disciplinary rules do not restrict a client's ability to unilaterally terminate the attorney-client relationship. Tex. Disciplinary Rules Prof'l Conduct R. 1.15(a)(3) & cmt. 4 ("A client has the power to discharge a lawyer at any time, with or without cause ...."). Despite this ease of termination, Thetford has continually argued to this Court that Rule 1.06—regarding current client conflict of interest—applies. The Court points to various passages in Thetford's briefing suggesting Thetford is a former client. And indeed, Thetford makes the argument that Allen additionally violated Rule 1.09, which applies to former clients. Thetford's decision to argue both rules notwithstanding, her chief argument on appeal to this Court—indeed, the first argument she makes in her brief on the merits—is that Rule 1.06 prohibits Allen's representation of Rogers. But even if Thetford clearly disclaimed the attorney-client relationship, I would nonetheless find the ABA's guidance applicable and persuasive.
Transcript of Oral Argument, In re Thetford , No. 17-0634, 2018 WL 5017939 (Tex. argued Oct. 10, 2018), available at http://search.txcourts.gov/Case.aspx?cn=17-0634 & coa=cossup.
The ABA Ethics Committee, in interpreting its Model Rule 1.14, concluded that "a lawyer with a disabled client should not attempt to represent a third party petitioning for a guardianship over the lawyer's client." ABA Comm'n on Ethics & Prof'l Responsibility, Formal Op. 96-404 (1996). The committee acknowledged that "it is not uncommon for the lawyer to be approached by a family member or other third party with a request that the lawyer represent that third party in pursuing the petition." Id. But the committee squarely rejected representation in this scenario:
However, nothing in the rule suggests that the lawyer may represent a third party in taking such action, and after considerable analysis, the Committee concludes that a lawyer with a disabled client should not attempt to represent a third party petitioning for a guardianship over the lawyer's client.
...
In particular, it does not authorize a lawyer to represent a third party in seeking to have a court appoint a guardian for his client. Such a representation would necessarily have to be regarded as "adverse" to the client and prohibited by Rule 1.7(a), even if the lawyer sincerely and reasonably believes that such representation would be in the client's best interests .... In short, if the lawyer decides to file a guardianship petition, it must be on his own authority under Rule 1.14 and not on behalf of a third party, however well-intentioned.
Id. ABA opinions and the policies embraced in other jurisdictions are not binding on the Court. Nevertheless, it is notable that at least eleven other states have either adopted the ABA's position or independently reached the same conclusion—that a lawyer should not represent a third party's guardianship proceeding against a client. This trend deserves the Court's attention. III
Colo . Bar Ass'n, Formal Ethics Op. 126 (May 6, 2015) ("[T]he lawyer should not represent a third party petitioning for the appointment of a guardian for the lawyer's client."); Att'y Grievance Comm'n of Md. v. Framm , 449 Md. 620, 656, 144 A.3d 827 (2016) (quoting the ABA's 96-404 Opinion in holding the lawyer violated Maryland's Ethical Code of Conduct); Mass . Bar Ass'n Comm. on Prof'l Ethics, Op. 05-05 (May 2005) ("It would be inappropriate for a lawyer for a long-time client to represent a son seeking to have a guardian appointed for the client when it seems likely that the lawyer will be opposing the client's wishes and the lawyer would not be able to comply with the consent and reasonableness tests that would permit such representation. Moreover, the lawyer also ought not to represent the son if it seems likely that she will be a necessary witness in a guardianship proceeding."); State Bar of Mich ., Ethics Op. RI-176 (1993) ( "A lawyer may not undertake representation of both a mother and daughter in proceedings to establish a guardianship for the mother when the lawyer knows the mother's and daughter's interests in establishing the guardianship are adverse."); In re Wyatt's Case , 159 N.H. 285, 302, 982 A.2d 396, 410 (2009) (" ‘[N]othing in the rule suggests that the lawyer may represent a third party in taking such action.’ ‘[I]f the lawyer decides to file a guardianship petition, it must be on his own authority under Rule 1.14 and not on behalf of a third party, however well-intentioned.’ ") (quoting ABA Comm. on Ethics & Prof'l Responsibility, Formal Op. No. 96–404 (1996) (internal citation omitted); N.Y. State Bar Ass'n, Comm. on Prof'l Ethics, Op. 746 (July 18, 2001) ("Even if the alleged incapacitated person was formerly a client but is no longer one, if he or she objects to the appointment of a guardian the lawyer may be barred by DR 5-108(A) from representing him- or herself (or anyone else) as petitioner, since the current representation would likely be adverse to a former client in a matter substantially related to the subject of the former representation. In that event, as attorney-in-fact, the lawyer should retain separate counsel. ..."); Dayton Bar Ass'n. v. Parisi , 131 Ohio St.3d 345, 965 N.E.2d 268, 274 (2012) ("We concur in this analysis and conclude that the guardianship proceeding that Parisi initiated on behalf of Demming's niece, no matter how well-intentioned, was necessarily adverse to Demming."); S.C. Bar Ethics Advisory Comm., Ethics Advisory Op. 05-11, 2005 WL 1704509 (July 15, 2005) ("If the attorney seeks the appointment of a guardian, this action must be on attorney's own authority under Rule 1.14 and not on behalf of a third party, which would be prohibited under Rule 1.7(a)."); In re Discipline of Laprath , 670 N.W.2d 41, 57–58 (S.D. 2003) (extensively quoting ABA's Model Rule 1.14); Utah State Bar, Ethics Advisory Op. Comm., Op. 08-02 (Mar. 11, 2008) ("[I]f a third party initiates the guardianship proceeding, the attorney should not represent the third party, nor should the attorney seek to be appointed guardian of a client with diminished capacity."); Va. State Bar, Va. Legal Ethics Op. 1769 (Feb. 10, 2003) ("Neither the attorney in this hypothetical, nor anyone in his office, may properly represent the daughter in petitioning for a guardian for her mother, also a client of this attorney's office. Such an action is by its very nature an adverse action with respect to the mother."); Wash. State Bar Ass'n, Advisory Op. 980 (1986) (discussing representation of wife in petition for guardianship of husband when lawyer previously represented both husband and wife). See also Vt. Bar Ass'n, Advisory Ethics Op. 2006-1 (favorably quoting ABA Formal Opinion 96-404 in deciding an issue of whether a lawyer may directly pursue a guardianship over a client).
In its analysis, the Court instead leans heavily upon our disciplinary rules. But we have said that these rules "do not determine whether counsel is disqualified," but rather "provide guidelines and suggest the relevant considerations." In re EPIC Holdings, Inc. , 985 S.W.2d 41, 48 (Tex. 1998) (citing Nat'l Med. Enters., Inc. v. Godbey , 924 S.W.2d 123, 132 (Tex. 1996) ). I'm afraid the Court has allowed a crabbed reading of the rules to replace a thorough examination of Allen's decision to represent Rogers.
The Court concludes that the guardianship proceeding is not substantially related to Allen's representation of Thetford—namely, his assistance in drafting and executing her estate-planning documents. The Court reasons that whatever confidences Thetford revealed to Allen in drafting her will are now "open knowledge" because the will and power of attorney were published at the guardianship proceeding. The Court then concludes that "[t]here can be no threat of disclosure of confidences that [Thetford] has already revealed to her adversary." Ante at 374–75. I agree that if the universe of confidences Thetford might have placed in Allen as her attorney could be reduced to the words on the pages of the documents she executed, there is nothing more Allen could divulge. But I do not take so limited a view of the attorney-client relationship, particularly when it involves end-of-life planning.
The Court concludes Rogers's indebtedness to Thetford and her default on that debt is of no consequence because she paid the note off after the guardianship application was filed.
"Substantially related"
The Disciplinary Rules do not define "substantially related." According to comment 4B to Rule 1.09, substantial relation "primarily involves situations where a lawyer could have acquired confidential information concerning a prior client that could be used either to that prior client's disadvantage or for the advantage of the lawyer's current client or some other person." Tex. Disciplinary Rules Prof'l Conduct R. 1.09 & cmt. 4B. We have clarified that a party seeking disqualification of counsel "must prove the existence of a prior attorney-client relationship in which the factual matters involved were so related to the facts in the pending litigation that it creates a genuine threat that confidences revealed to [ ] former counsel will be divulged to [a] present adversary." NCNB Tex. Nat'l Bank v. Coker , 765 S.W.2d 398, 400 (Tex. 1989). Meeting this burden requires "specific similarities capable of being recited in the disqualification order." Id. If this burden is met, the movant "is entitled to a conclusive presumption that confidences and secrets were imparted to the former attorney." Id. (citing P & M Elec. Co. v. Godard , 478 S.W.2d 79, 80–81 (Tex. 1972) (orig. proceeding)). In doing so, the movant is not "forced to reveal the very confidences [she] wishes to protect." Id. Rather, by establishing a substantial relationship between the two representations, the moving party "establishes as a matter of law that an appearance of impropriety exists." Id.
The Court admits that "[e]state planning and guardianship are similar in that they are both end-of-life matters." Ante at 375. But it dismisses this notion as a "superficial comparison." Ante at 375. There must be something more here, the Court contends, some showing that confidences from the first representation could be used against Thetford in Allen's representation of Rogers. But as Thetford's will has been shared with everyone involved in the guardianship proceeding, the Court finds there's nothing left to be exploited.
This blunt analysis reduces the inquiry to a facial comparison of (a) the work product that resulted from Allen's representation of Thetford to (b) the nature of the proceeding in which he now represents Rogers. It is true that Allen's tangible work product resulting from his representation of Thetford is limited to a handful of estate-planning documents. But such a summary does not capture the entire character of an attorney's representation in estate-planning matters; our inquiry should be more nuanced. Coker implores us to look at whether "the factual matters involved" in the prior representation are "related to the facts in the pending litigation." 765 S.W.2d at 400. So rather than just looking at the end result of the representation, we should more closely examine the factual matters involved in that representation and how they might relate to a guardianship proceeding.
Two seemingly identical proceedings can be entirely unrelated in issue and fact, and yet two different causes of action can arise from near-identical facts. See In re Hous. Cty. ex rel Session , 515 S.W.3d 334, 343–44 (Tex. App.—Tyler 2015, orig. proceeding) (adopting a party's argument that "the protective order ... and the termination case are ‘substantially related’ because R.G.'s family violence is an issue in both."); Troutman v. Ramsay , 960 S.W.2d 176, 178–79 (Tex. App.—Austin 1997, no pet.) (holding that a family's attorney could not represent the son in a property dispute because attorney had previously probated the mother's will); Home Ins. Co. v. Marsh , 790 S.W.2d 749, 754 (Tex. App.—El Paso 1990, no writ.) (holding that medical malpractice representation was substantially related to representing insurance company in conspiracy class action).
There are at least two common areas of concern that arise both in Allen's representation of Thetford and his representation of Rogers: Thetford's estate planning and her mental capacity. Before filing the application for guardianship on Rogers's behalf, Allen was intimately involved with Thetford's estate planning. Now, he represents a client who seeks to deprive Thetford of the ability to manage her own estate, even though the record indicates that Thetford prefers to exclude Rogers as a potential guardian. As for Thetford's mental capacity, Allen drafted the durable power of attorney that made Rogers Thetford's guardian and attorney in fact in case she ever became incapacitated. Now, Allen represents Rogers in arguing that Thetford's revocation of the power of attorney is actually evidence of her incapacity. My point is not to impugn Allen's motives; he may very well have Thetford's best interests at heart. Regardless, Thetford's preparations for her potential incapacity—with Allen's assistance—and Rogers's current attempts to prove Thetford's incapacity—also with Allen's assistance—are clearly, specifically, and substantially related.
This alone satisfies the rules' substantial-relation standard. But even if the Court has the better interpretation, I would have deeper concerns that our rules simply do not adequately address this situation. And if they don't, we should. Ultimately, the Court's tightfisted application of the substantial-relation test, even if correct, ignores the fact that, as Thetford's estate-planning lawyer, Allen could have gained significant insight into Thetford's mental capacity thanks to the sanctity of an attorney-client relationship forged in the context of end-of-life planning.
In the course of his representation of Rogers in the guardianship proceeding, Allen will seek to establish Thetford is incapable of managing her affairs and caring for herself. See TEX. EST. CODE § 1101.101(a)(1)(A)–(E). The risk is not that he will accomplish this by divulging the contents of her will. The risk is that he will do so by drawing on his knowledge and experience of Thetford's mental capacity acquired through the span of their attorney-client relationship. We need look no further than the mere fact that Allen is representing Rogers in the guardianship proceeding to conclude that he believes Thetford's mental state is not what it was in 2012 when he assisted her in executing a will. See id. § 251.001 ("[A] person of sound mind has the right and power to make a will."). Allen is now in a privileged position to use his then-and-now experiences—created in an attorney-client relationship—to help Rogers make her case.
Importantly, this risk runs deeper than Allen's subjective observations of Thetford's demeanor and mental processes. In the confines of their privileged relationship, there is no telling what information Thetford might have candidly shared concerning her mental state that informed her estate-planning decisions. Because Allen was assisting in her end-of-life planning, Thetford had every reason to speak openly with her attorney about issues she might otherwise conceal.
The Court believes the physical documents of Allen and Thetford's attorney-client relationship resolve this question. I believe the case should be resolved by looking at the relationship itself. Estate planning involves more than writing words on a page, particularly for elderly clients. It involves the sharing of confidences, candid desires, and deep-seated fears. Clients might articulate rational concerns both poignant and personal in hopes that their attorney will help them plan accordingly. The most intimate confidences a client might convey to her attorney is her awareness that her mental capacity is beginning to slip and her request that an attorney help her plan for a future in which she can no longer care for herself. And that attorney will be in an advantaged position to later evaluate the extent to which his client's mental capacity has indeed degraded. That information in the hands of a new client seeking a guardianship over the former client is an unfair advantage derived from a relationship of trust and confidence.
Again, I do not suggest Allen is maliciously working against Thetford's best interests. Thetford might indeed need a guardian, and Allen might know that as well as anyone could. But the job should fall to someone other than Allen.
"Adversity"
Like Rule 1.09, Rule 1.06 also prohibits a lawyer from representing a person "if the representation of that person involves a ... matter in which that person's interests are materially and directly adverse to the interests of another client." Tex. Disciplinary Rules Prof'l Conduct R. 1.06(b)(1). We have broadly defined adversity as "a product of the likelihood of the risk [that the pending litigation poses to the person's interests] and the seriousness of its consequences." See Nat'l Med. Enters., Inc. v. Godbey , 924 S.W.2d 123, 132 (Tex. 1996). So even if the representations are substantially related, no conflict exists if they are not adverse. Unlike the concurring justices, I believe this element is also met.
After labeling guardianship proceedings as not inherently adversarial, the concurring justices craft a definition for adversity in the guardianship context so narrow I am unsure how it could ever be satisfied. Despite their admission that a guardianship proceeding "strips the ward of fundamental rights," the concurring justices argue that a proceeding is adverse only if the guardianship applicant's interests are "adverse to the proposed ward's objectives or interests as the proposed ward would have defined them when she had capacity." Ante at 379. If there is no direct evidence of such pre-incapacity interests, "adversity exists when the applicant's interests would not promote and protect the proposed ward's well-being." Ante at 379. This proposed standard is based on an unpublished court-of-appeals opinion interpreting a now-repealed statute. See ante at n.44. The concurring justices then look at Thetford's pre-incapacity interests. Because Thetford once gave Rogers the power of attorney and Rogers has unsurprisingly never sought to undermine her aunt's "well-being," they argue that Rogers and Thetford are not adverse. The concurrence then dismisses Thetford's opposition to the guardianship and concludes dismissively that "[p]roposed wards often believe, mistakenly, that they do not need a guardian." Ante at 379.
No. 14-99-00619-CV, 2001 WL 40337, at *4 (Tex. App.—Houston [14th Dist.] Jan. 18, 2001, no pet.) (not designated for publication). Betts was interpreting a statute that the legislature repealed in 2011. Act of May 20, 1999, 76th Leg., R.S., ch. 829, § 4, sec. 2(a)–(b), 1999 Tex. Gen. Laws 3461, repealed by Act of May 19, 2011, 82d Leg., R.S., ch. 823, § 3.02(a), 2011 Tex. Gen. Laws 1901, 2094. Furthermore, Betts was solely about whether a party had standing in a guardianship proceeding, not about attorney disqualification. 2001 WL 40337, at *3 ("The issue [is] whether a party has standing to participate in a guardianship proceeding ....").
I agree that not all guardianship proceedings are inherently adversarial. But a guardianship proceeding in which the proposed ward contests the guardianship is inherently adversarial. And even if I agreed that this guardianship proceeding is not inherently adversarial, I could not embrace the adversity test proposed in the concurrence.
The concurring justices cite three cases in support of the proposition that Thetford's guardianship proceeding is not inherently adversarial: (1) Franks v. Roades , 310 S.W.3d 615, 627 (Tex. App.—Corpus Christi 2010, no pet.) ; (2) Henderson v. Shell Oil Co. , 202 S.W.2d 492, 497 (Tex. Civ. App.—Fort Worth 1947), aff'd , 146 Tex. 467, 208 S.W.2d 863 (1948) ; and (3) McKinley v. Salter , 136 S.W.2d 615, 624 (Tex. Civ. App.—El Paso 1939, writ dism'd judgm't cor.), appeal dism'd , 312 U.S. 659, 61 S.Ct. 734, 85 L.Ed. 1106 (1941). Ante at n.37. These cases state the basic proposition that guardianships are not inherently adversarial. I do not disagree—not all are. They do not, however, speak to whether a guardianship in which the proposed ward opposes the guardianship is inherently adversarial. I believe it is.
My rationale for concluding that a guardianship proceeding contested by the proposed ward is inherently adversarial is simple: Thetford wants to retain her most basic personal rights and freedoms, but Rogers wants those rights transferred to herself. If Rogers succeeds in becoming Thetford's permanent guardian, she is "entitled to take charge of the person of the ward," including "the right to have physical possession of the ward and to establish the ward's legal domicile," "the power to consent to medical, psychiatric, and surgical treatment," and "on application to and order of the court, ... direct that the income of the ward ... be paid directly to [a] trust." See TEX. EST. CODE § 1151.051(a), (c).
This transfer of personal sovereignty is, of course, oftentimes necessary. But whether the guardianship proceeding is adverse for disqualification purposes should not turn on whether the guardianship is ultimately warranted. A proposed ward might protest guardianship because she is in fact of sound mind. Or she might protest because she is not. Neither changes the fact that she is opposed to being stripped of her freedom to make decisions for herself. It is Thetford's opposition to a proposed loss of her personal freedom that makes her adverse to the party who seeks to take it. Her mental state—which cannot be legally determined until well after the disqualification ship has sailed—simply is not relevant to determining adversity. Only Thetford's stated desires and intentions matter. The concurring justices' suggestion that many proposed wards simply do not know what's best for them, while sometimes true, creates a cynical presumption in favor of proposed guardians. No doubt the vast majority act out of genuine concern for the proposed ward. But the deference the concurring justices afford the proposed guardian is too generous, especially in light of the seriousness of the issues in dispute and the most basic individual freedoms that are at stake. Of sound mind or not, a person who wishes to remain free is adverse to anyone who would take that freedom away.
Furthermore, even if I agreed that Thetford's guardianship proceeding is not inherently adversarial, I could not agree that the only way to demonstrate adversity is to show either pre-incapacity adversity or that Rogers's interests are adverse to the promotion and protection of Thetford's well-being. Only if proposed wards have the legal foresight to raise adversity concerns before becoming incapacitated would this proposed standard protect wards from conflicted lawyers. As for the "well-being" secondary standard, guardianship proceedings are always premised on the proposed ward's best interests, and it is difficult to imagine a scenario in which the proposed guardian's ill will is so blatant as to be adverse to the proposed ward's very well being. See Well-being , NEW OXFORD AM. DICTIONARY (3d ed. 2010) ("[T]he state of being comfortable, healthy, or happy."). Our enduring standard for adversity—focusing on the "likelihood of the risk and the seriousness of its consequences"—is too flexible to be applied so miserly here. See Nat'l Med. Enters., Inc. v. Godbey , 924 S.W.2d 123, 132 (Tex. 1996).
I can only read the concurring justices' proposed adversity standard as requiring a showing that either the proposed ward had unrealistic foresight in raising adversity concerns or the proposed guardian has animus toward the proposed ward. It goes without saying that this standard would be nearly impossible to meet. Furthermore, the Estates Code already denies standing to bring a guardianship application if the proposed guardian "has an interest that is adverse to a proposed ward or incapacitated person." See TEX. EST. CODE § 1055.001(b) (emphasis added). This standard is lower than the disqualification standard enunciated by the concurrence—a proposed ward might have an interest adverse to the proposed guardian without being adverse to the proposed ward's well-being . Such is true for the example cited by the concurring justices as an adverse guardianship proceeding. The concurrence supposes that "had [Rogers] continued to be indebted to the Thetfords throughout the proceeding, her pecuniary interests would clearly be adverse to [Thetford]'s." Ante at 380. True, but this would not satisfy the concurring justices' well-being standard. We have no reason to believe Rogers is adverse to Thetford's well-being even if she were still indebted to her. As for the pre-incapacity deadline to identify adversity, this proposed standard dangerously ignores the possibility that a legitimate concern about a lawyer's behavior may be raised after a proposed ward becomes incapacitated. We are left with unanswered questions: How would this standard protect our incapacitated population from conflicted lawyers that appear after incapacity? Next, how does the concurring justices' own hypothetical finding of adversity satisfy their own well-being test? And finally, if there is no direct evidence of the proposed ward's pre-incapacity interests, how could the concurrence's proposed well-being standard ever be met if the Estates Code already denies standing to guardianship applicants based on a lower standard? The concurring justices' well-being test for adversity seems unworkable to me.
* * *
For these reasons, I respectfully dissent. Alfred Allen may be a conscientious attorney with Verna Thetford's best interests at heart. But our disciplinary rules impose limits on an attorney's ability to represent a third party in a guardianship proceeding against a current or former client. I would take the parties at their word: Allen is Thetford's lawyer. Accordingly, I would apply Disciplinary Rule 1.06 and follow the guidance of the ABA Ethics Committee and at least eleven other states on this precise issue. Even if Allen is no longer Thetford's attorney, I would nonetheless hold that Disciplinary Rule 1.09 supports disqualification because Rogers's guardianship proceeding is adverse to Thetford and the proceeding is substantially related to Allen's prior representation of Thetford. The trial court exceeded its discretion when it denied Thetford's motion to disqualify.