ABA, State Bars Urging Attorneys to Pivot From Guardianships

Several states are weighing an ABA-led push to encourage attorneys handling intellectually disabled and elderly clients to consider alternatives to legal guardianships.

The American Bar Association House of Delegates earlier this year revised its model rule of professional conduct dealing with how attorneys represent clients with limited decision-making skills, following years of behind-the-scenes work from advocates concerned that the legal profession has defaulted to guardianship—also known as conservatorship—as a first option.

Reformers say the changes to Rule 1.14—which outline guidance for lawyers representing clients with what the ABA used to call “diminished” mental capacity—may be vital to fixing the guardianship system. A 2023 Bloomberg Law investigative series surfaced several instances of abusive guardianships and a system buckling due to overworked attorneys and lax oversight.

Anthony Palmieri, a former president of the National Guardianship Association, said lawyers serve as a “pipeline” for an adult guardianship system that often allows bad actors to victimize highly vulnerable clients.

“It’s more aspirational than operational,” said Palmieri, deputy inspector general of the Palm Beach County, Fla., Clerk of the Circuit Court & Comptroller, of the ABA’s model rule revision. However, given the likelihood that states will adopt their own versions of the revised professional conduct rule, making the changes legally binding, it’s “potentially a huge step forward,” he said.

The initiative has built momentum among state bar associates since the ABA’s model rule changes in February. Michigan is already moving to incorporate the language into its ethics code and bar officials in Illinois, Virginia, Florida, Washington, Utah, and Washington D.C. are exploring making changes.

But there are some skeptics who doubt the likelihood that ethics rule changes could have a major practical impact.

“While I appreciate what the ABA is doing, there is no back-stop available when a predatory lawyer targets your family,” said Rick Black, executive director of the Center for Estate Administration Reform, a nonprofit pushing for more transparency in guardianship cases.

Given that the guardianship system is an entrenched process that’s “increasingly profitable” for lawyers, legal-advisory reforms may only have the effect of “putting a Band-Aid on a gunshot wound to the head,” he said.

Michigan Moves First

The State Bar of Michigan’s representative assembly unanimously supported adopting the ABA’s new language for Rule 1.14, which confirmed that clients who have surrogate decision-makers aiding them because of difficulties making or communicating decisions also have due process right of access to counsel. It is on track to be the second state to update its 1.14 guidance.

The key is providing lawyers with the guidance they need so they’re not encouraged to pursue guardianship, a “very drastic” approach to protective action in such cases, said Syracuse University College of Law professor Nina Kohn.

The proposed rule—which needs to be approved by the Supreme Court of Michigan—also stipulates that the state’s attorneys “must look to the client, and not to family members or other persons” to make decisions on the client’s behalf. Alternatives to guardianship can include healthcare surrogacy, durable powers of attorney, living wills, and community support.

Reform advocates in Michigan had been watching the ABA “very, very closely,” so that they could move as quickly as possible to adopt their own rule change as soon as the ABA acted, said Nicole Shannon of the Michigan Elder Justice Initiative.

Katie Stanley, a lawyer with Legal Services of Eastern Michigan who introduced the resolution, said she believes the rule change will spur a “strong, human impact by providing more clarity and dignity” to respondents in guardianship cases.

The District of Columbia Bar’s rules review committee recently referred the matter to a subcommittee for study and drafting, said Hope C. Todd, who oversees the legal ethics program at the D.C. Bar. It’s “likely” that the Supreme Court of Illinois, through several of its committees, is reviewing the ABA model rule revisions “for possible adoption,” said Charles J. Northrup, the Illinois State Bar Association’s general counsel, and the Virginia State Bar is accepting comments on the topic.

The Florida Bar also will be forwarding the revised model rule 1.14 to its relevant committees for consideration, and the issue is on the radar of the Washington and Utah bars, spokespeople in those states said.

Maryland’s Example

The ABA model rule was inspired by ethics changes Maryland put on the books in 2023, which guardianship law practitioners in the state say have helped their clients.

The rule lets the state’s lawyers know that guardianship “shouldn’t be their first pivot,” said Megan Rusciano, a managing attorney with Disability Rights Maryland.

It’s also helped inform the state’s bench and bar, by showing them “in the black and white letter of the law what my job is,” said Barrett King of King Hall LLC.

King estimates that guardianship cases make up about 75% of his workload, and a key part of his representation is to advocate for less restrictive alternatives to guardianship so it’s maintained as a “last resort.”

King noted the important role played by a 2000 state court decision which made it clear that the attorney’s role in representing such clients is to “explain the proceedings to his client and advise him of his rights, keep his confidences, advocate his position, and protect his interests,” especially when the client “faces significant and usually permanent loss of his basic rights and liberties.”

“Fundamentally, there’s just so much at stake,” said Rusciano.