Opinion 92-16
(October 1992)

You have requested guidance on the following situation. You represent a client who received traumatic head injuries in an accident. During the course of your representation, your client has repeatedly missed medical appointments and has received sporadic medical care for her injuries. The client has now moved out of state, and although a medical specialist in the client's new state was located, the client has continued the sporadic nature of her medical care. You discussed a limited guardianship or conservatorship with your client's mother, who at this time is not willing to serve in that capacity as her daughter does not wish her to. The client does have periods of lucidity during which she appears to comprehend your advice and opinions. Litigation has not been instituted in this case, and the statute of limitations does not run for eight months.

You have decided to withdraw from this matter. You have asked the Committee if you have an ethical obligation to voluntarily petition the Court in the client's state to approve your withdrawal, in light of your client's physical disability and brain injury.

Pennsylvania Rule of Professional Conduct 1.14 provides that:

(a) When a client's ability to make adequately considered decisions in connection with the representation is impaired, whether because of minority, mental disability or for some other reason, the lawyer should, as far as reasonably possible, maintain a normal client lawyer relationship with the client.

(b) A lawyer may seek the appointment of a guardian or take other protective action with respect to a client, only when the lawyer reasonably believes that the client cannot adequately act in the client's own interest.

The Comment to the Rule provides in part that if a legal representative has not been appointed, the lawyer should see to such an appointment where it would serve the client's best interests.

Pennsylvania Rule of Professional Conduct 1.16 governs withdrawal from representation. Rule l.lGd provides in part that:

(d) Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client's interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled.

Your inquiry raises the issue of whether a guardian should be appointed for your client. In light of the comment to Rule 1.14, the Committee believes that you should proceed for the appointment of a guardian. Once done, this would remove the question of court approved withdrawal as you would have a competent representative to deal with. Notice of your withdrawal could be made to a party who will fully understand the situation and be able to ensure that your client's best interests are protected. In addition this would also help to satisfy your obligation under Rule 1.16(d) not to prejudice your client's claim.

Please note that just because your client's mother no longer wishes to be her guardian, your obligation to obtain a guardian is still present. The Committee is aware that pursuing this course may mean significant work on your part, including obtaining local counsel for a guardianship petition. Nevertheless the circumstances dictate the outlined course of action.

The Philadelphia Bar Association's Professional Guidance Committee provides, upon request, advice for lawyers facing or anticipating facing ethical dilemmas. Advice is based on the consideration of the facts of the particular inquirer's situation and the Rules of Professional Conduct as promulgated by the Supreme Court of Pennsylvania. The Committee's opinions are advisory only and are based upon the facts set forth. The opinions are not binding upon the Disciplinary Board of the Supreme Court of Pennsylvania or any other Court. They carry only such weight as an appropriate reviewing authority may choose to give it.