in Re Verna Francis Coley Thetford

IN THE SUPREME COURT OF TEXAS
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No. 17-0634
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IN RE VERNA FRANCIS COLEY THETFORD, RELATOR
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ON PETITION FOR WRIT OF MANDAMUS
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Argued October 10, 2018
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.
2
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, 1 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.
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.
1
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).
3
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. 2 And Allen seems to agree, stating at oral
argument to this Court that “I really do view it that I’m representing Mrs. Thetford.” 3 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
2
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.
3
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.
4
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 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. 4 This trend deserves the Court’s attention.
4
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 (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
5
III
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
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, 965 N.E.2d 268, 274 (Ohio 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).
6
documents. 5 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 ___. 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.
“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
5
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.
7
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 ___. But it dismisses this notion as a “superficial comparison.” Ante
at ___. 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. 6 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
6
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).
8
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.
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.
9
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
10
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 ___. If there is no direct
11
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 ___. This proposed standard is
based on an unpublished court-of-appeals opinion interpreting a now-repealed statute. 7 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 ____.
I agree that not all guardianship proceedings are inherently adversarial. 8 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.
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
7
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 . . . .”).
8
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, 208
S.W.2d 863 (Tex. 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 (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.
12
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-
13
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 ___. True, but this would not satisfy the concurring justices’ well-being
14
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.
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Jeffrey V. Brown
Justice
OPINION DELIVERED: May 24, 2019
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