Confidentiality and conflicts of interest are two ethical issues that confront almost every lawyer in their practice. The Committee on Professional Ethics (CPE) recently released an advisory opinion that explores these issues and gives guidance on how to apply the Rules of Professional Conduct (RPC) in the context of representing certified professional guardians: Advisory Opinion 202501 Certified Public Guardianship Confidentiality and Conflict Issues. Though the opinion addresses concerns facing representatives of guardians and long-term care facilities, the discussion and analysis would be helpful to every lawyer.
In this area of practice, sticky issues arise regarding competence, confidentiality, and conflicts for lawyers representing long-term care facilities with respect to petitions for appointment of a Certified Professional Guardian (CPG) or conservator for a resident. What information can the lawyer disclose to a potential CPG or conservator? How does the facility disclose enough information to inform possible providers yet still maintain the confidentiality of the resident? The opinion also addresses a related conflicts of interest question: After a CPG or conservator is appointed, may the lawyer represent both the facility and the CPG or conservator?
Preserving confidentiality in this context turns both on the duties set forth in RPC 1.6 owed to the care-facility client, as well as the lawyer’s duty of competence in understanding substantive law applicable to a resident’s right to confidentiality. The opinion stresses that a lawyer’s duty of competence, RPC 1.1, requires a lawyer to competently advise the facility against disclosures that could violate a resident’s rights to confidentiality under state and federal law.
On the question of conflicts of interest, the opinion addresses the common issue of simultaneous representation. When contemplating representing both a care facility and a CPG or conservator, the lawyer is charged not only with identifying the present interests of the facility and the CPG, but also with foreseeable and likely differences in interests which could eventuate. The opinion notes that there are “many instances” in which the interests of a resident, which must be protected by a CPG, will be inconsistent with the interest of the care facility. If the issues at hand concern resident rights or interests against a long-term care facility, there is a significant risk of a material limitation conflict under RPC 1.7(a). As for waiver of such conflicts, the opinion characterizes it as “difficult to conceive of” situations in which informed consent from the CPG and the facility would be sufficient to allow a lawyer simultaneously to represent both a facility and a CPG for a resident of the facility with respect to any issues pertaining to the resident’s rights or interests at, or with respect to, the facility.
The Committee on Professional Ethics focuses on issuing opinions which will be helpful to WSBA members at large. Any licensed legal professional can request a written advisory opinion by contacting the WSBA CPE staff liaison or chair.
Sandra Schilling. Sandra is a professional responsibility counsel with the WSBA Advancement department. She supports the WSBA Ethics Line. Legal professionals with concerns about legal ethics can call the Ethics Line at 206-727-8284 and receive help analyzing ethical issues. For other issues, Sandra can be reached at sandras@wsba.org or 206-239-2118.
