Monday, July 16, 2007

Improvident Disqualification

A woman who suffers from Alzheimer's disease married her "longtime friend" while a petition for conservatorship filed by her brother was pending in the District of Columbia. She denied that she was incapacitated and hired a law firm to assist her in objecting to the conservatorship and in transferring assets. The probate court appointed a lawyer to represent her and investigate claims that the law firm had a conflict in that it had been hired by the friend/husband. The appointed lawyer moved to disqualify the law firm, which was granted by the trial court. The probate court also appointed another lawyer to serve as guardian.

On appeal, the D.C. Court of Appeals vacated the order removing the law firm and appointing the guardian over the woman's objections. "The [probate] court's decision to override [the woman's] expressed wish to be cared for by her husband...was flawed because it was based on unproven accusations and suspicions rather than on actual findings of impropriety or conflict of interest."  The probate court must make an informed, not speculative, judgment based on the best interests of the ward. Retained counsel cannot be removed absent an evidentiary hearing that establishes a basis to disqualify. (Mike Frisch)

http://lawprofessors.typepad.com/legal_profession/2007/07/improvident-dis.html

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