Ethics Opinon 1983-10

I
QUESTION PRESENTED

What is the duty of the attorney for a guardian/conservator/personal representative or other fiduciary who will not prepare an accounting and may have converted assets to his own use?

II
CONCLUSION

When confronted with a client who, as a fiduciary, fails to perform his duties or acts improperly, the attorney should urge his client to file a true and accurate accounting disclosing the true facts. If the client refuses to file a true and accurate account, the attorney is prohibited from disclosing any information that would be likely to be detrimental to the client. However, the attorney must refuse to file a knowingly false or misleading account. Further, rules pertaining to mandatory or permissive withdrawal from the case may apply, and under all circumstances, the attorney must refrain from any aiding or assisting of the fiduciary-client in his improper acts.

III
DISCUSSION

Various sections of the Probate Code (§§ 922, 1025.5, 2620) require regular accountings to be filed by fiduciaries in probate matters. As a practical matter, in San Diego County, the only persons who are in a position to be aware of the failure to file a timely accounting are:

1. The fiduciary.
2. The beneficiary/ward/conservatee.
3. The attorney for the fiduciary.
4. The surety for the fiduciary, if any.

If the fiduciary is unwilling to make a true and accurate accounting, the beneficiary/ward/conservatee is incapable of monitoring the fiduciary. If there is no surety, then only the attorney may be aware of the misfeasance/malfeasance of the fiduciary.

The attorney may not divulge to anyone the improper conduct of his client learned within the scope of the attorney-client privilege.

Business & Professions Code, Section 6068 provides:

"It is the duty of an attorney:

. . .
"(e) to maintain inviolate the confidence, and at every peril to himself to preserve the secrets, of his client."

Nevertheless, the situation considered here may, under some circumstances, be one of those set forth in Rule 2-111(B), Rules of Professional Conduct, which makes mandatory the withdrawal of the attorney:

"(B) Mandatory Withdrawal.

"A member of the State Bar Association representing a client before a tribunal, with its permission if required by its rules, shall withdraw from employment . . . if:

"(1) He knows or should know that his client is bringing a legal action, conducting a defense, asserting a position in litigation or otherwise having steps taken for him solely for the purpose of harassing or maliciously injuring any person or solely out of spite, or if taking or prosecuting an appeal merely for delay, or for any reason not in good faith; or

"(2) He knows or should know that his continued employment will result in violation of these Rules of Professional Conduct or of the State Bar Act; or

"(3) His mental or physical condition renders it unreasonably difficult for him to carry out the employment effectively."

On the other hand, in some situations involving defalcations, withdrawal may be permissive but not mandatory. Rule 2-111(C) permits the withdrawal of the attorney when:

"(1) His client:

. . .
"(b) Personally seeks to pursue an illegal course of conduct.
. . .
"(d) Other course of conduct renders it unreasonably difficult for the member of the State Bar to carry out his employment effectively."

Therefore, in cases governed by 2-111(B), the attorney must withdraw. In cases governed by 2-111(C), withdrawal is permissive but not mandatory. When confronted with a client who is defalcating, the attorney should seriously consider which of these rules may apply to his particular situation, and should also consider the possible desirability of withdrawal.

San Diego County Probate Rule 18.1 requires that a withdrawing attorney file a motion or petition with the court and, at that time, have a citation issued directing the representative to appear and show cause why the petition should not be granted or, why the representative has not taken the proper steps to complete his or her duties. The issuance of a citation to the client, pursuant to local rule, at the request of the attorney, invites the attention of the Court to the wrongdoing of the client. Thus, the attorney should consider ways to minimize the detrimental effect of this rule, such as by securing a voluntary appearance by the representative.

The Committee on Legal Ethics of the Los Angeles County Bar Association has considered similar questions on several occasions. In their Opinion 267 (January 26, 1960) they concluded that an attorney is under no obligation, and may not, call to the attention of the Court the fact that a guardian was misappropriating funds. The committee advised the attorney to urge the client to file a true accounting and, if she refused, the attorney had to refuse to file any account.

Opinion 274 (October 25, 1962) of the LA County Bar Ethics Committee opined that after being substituted out as attorney for administrator, the attorney had no ethical obligation to disclose defalcations of the administrator to the Court, the heirs, the District Attorney, the State Bar, or to the administrator's new attorney.

Finally, in Opinion 386 the committee considered the duty of a client's attorney to disclose information of an alleged perjury by the client during earlier proceedings. The committee voiced the opinion that B&P Code § 6068 prohibits the attorney from disclosing information, gained in the professional relationship, which would be detrimental to the client.

Disclaimer: This opinion was issued by the Legal Ethics Committee of the San Diego County Bar Association. It is advisory only and is not binding upon any member of the SDCBA, any other member of the State Bar of California, the State Bar of California or its Board of Governors, or any persons or tribunals charged with regulatory responsibilities. The SDCBA, its officers, directors, agents, and the Legal Ethics Committee members assume no responsibility or liability in rendering this opinion.