Playing with Knives

There’s a saying among litigators. It goes like this: Lawyers play with knives but never get cut.

The idea (or image) is two lawyers facing each other holding knives, with their clients in between. When the case is over, the clients are bloodied but the lawyers remain unscathed. It’s a coarse image – but there is a truth in it that allows the saying to survive.

Litigation is a mean game – at times brutal. It is common for clients to dislike (at times, vehemently dislike) the opposing party’s attorney. And it is sometimes hard for clients to understand how the lawyers in the case remain collegial throughout the process. They wonder: Why is my lawyer talking to that other lawyer about his/her kids or their practice? Why doesn’t my lawyer see what an a-hole s/he is?

But lawyers are like that. Civility and professional courtesy is part of our creed, or way of thinking. It is an integral part of how the system works (See “The Romance of the Law” below).

However there can be rare cases where the lawyers are cutting each other. Lawyers don’t like these cases, and Judges like them even less. Yet, in certain situations, if the attorney is going to adequately represent their client, it can’t be avoided.

In my practice this dynamic can come up in contested guardianship/conservatorship matters.

It is common in these matters to have a vulnerable adult who can be manipulated – and who will voice the preferences of whoever they are physically in the presence of (or under the control of) at the time. As a result, the person(s) or faction that has the most physical access to the vulnerable adult while the litigation is pending can often assert that they are acting in a manner consistent with the desires of the vulnerable adult, even though the truth is that: were the vulnerable adult allowed to spend sufficient time with the other parties, that vulnerable adult’s views would change to align with those parties. The upshot is that s/he that controls the vulnerable adult can take the vulnerable adult to a lawyer who can claim to represent the vulnerable adult, advocate for the objectives of the controlling faction, and use the vulnerable adult’s money to pay the costs of litigation.

Of course, an attorney should not do this. They should carefully assess whether their purported client has the capacity to retain legal counsel at all; and if so, take steps to separate the client from members of the faction to determine whether or not the expressions of the vulnerable adult client are in fact their own preferences, or simply the result of manipulation of the controlling faction. Where the attorney fails to protect their client in this way, the attorney representing the non-controlling faction may be forced to raise the issue to the court.

Although Michigan courts have yet to directly address this topic, some interesting work has been done in California. A report from the Estate Planning, Trusts and Probate Law section of the California State Bar; includes the following:

The existing statutory law concerning the appointment of an attorney by the court for a proposed conservatee who appears with a lawyer who contends that he or she is the proposed conservatee’s lawyer, is very unclear. Probate Code §§ 1470 and 1471 provides statutory authorization for the court to appoint an attorney to represent a proposed conservatee when the conservatee lacks counsel to represent himself or herself. Neither code section addresses a situation where a lawyer contends that he or she represents a proposed conservatee, but the court has serious doubts about whether the proposed conservatee has the capacity to hire the would-be attorney as the proposed conservatee’s attorney. The right to choose one’s counsel is a right with which courts are reluctant to interfere.

Unfortunately, it is common for the perpetrator of elder fiduciary abuse (“perp”) to arrange for a lawyer to represent a proposed conservatee in opposing the appointment of a conservator, or in seeking to have the perp appointed as the conservator. See, e.g., Conservatorship of Chilton, 8 Cal.App.3d 34, 86 Cal. Rptr. 860 (Second Dist. 1970), where (according to the Court of Appeals) Attorney Arditto really was the lawyer for the perp, although he pretended to be the lawyer for the proposed conservatee. Arditto litigation in opposition to the conservatorship, and took other steps that were supportive of the financial abuser, who also entered into a subsequently voided marriage with the incompetent.

The case of Conservatorship of Chilton, 8 Cal.App.3d 34, 86 Cal. Rptr. 860 (Second Dist. 1970) stands for the proposition that the lawyer who appears “for” the proposed conservatee, to oppose a conservatorship, can be acting in reality for the perpetrator against the best interests of the manipulated and incompetent proposed conservatee.

Emphasis added. Click here to read the report.

These situations seem to be a natural byproduct of the increasing number of contested guardianship/conservatorship matters. At this stage, Michigan courts don’t seem comfortable addressing this issue – and the attorney who makes accusations about opposing counsel can be seen as crossing that critical line by using their knife to slash fellow counsel. But litigation can be a rough sport – and when these situations arise, there may be no other options.