June 27, 2007
Whose Life Is It Anyway?
The Oklahoma Supreme Court recently considered an appeal of a man (the "ward") who was partially incapacitated as a result of a head injury sustained in a car accident. A general guardian was appointed and later terminated, which led to the appointment of a limited guardian. Several years later, the ward became dissatisfied with his court-appointed attorneys and retained his own counsel. The court-appointed lawyers contended that the retained lawyers had (1) violated Rule 4.2 by communicating with the ward; (2) "violated the spirit of Rule 1.14 by meeting with a client under disability without consulting with the Limited Guardian or seeking his approval"; and Rule 1.7 because one of the retained lawyers was the brother of the ward's old army buddy.
The court held that "the ward is entitled to an attorney of his own choosing" and that the court-appointed lawyers had made unsubstantiated allegations of ethical misconduct by the retained lawyers. The court remanded the case for an evidentiary hearing on the ward's nomination of retained counsel and reminded "the parties and the district court that guardianship proceedings are conducted for the benefit of the ward, not for the convenience of the court, the attorneys, or the guardians." Footnote 8 is my favorite: in response to court-appointed counsel's claim that retained counsel might receive fees in excess of $10,000, the court found the contention "somewhat ironic as the Court-Appointed Attorneys have received court approval for attorney fees of nearly $16,000 for a client they admittedly had little to do with in the year since the limited guardianship was imposed." (Mike Frisch)
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