FEBRUARY 23, 2015 VOLUME 22 NUMBER 8
From time to time we report on cases in which lawyers are disciplined for behavior involving clients who are older or have disabilities. We do that not out of any sense of schadenfreude, but because the behavior described in the disciplinary proceeding is illustrative of an important limitation on lawyers’ behavior.
This week, though, we have a different type of disciplinary proceeding to describe. The lawyer in question was not disciplined, and for good reason. Let us explain.
Neil French (not his real name) was in his mid-70s when he signed a power of attorney giving his daughter power to make financial and personal decisions for him. Three years later he had a heart attack, and ended up being transferred to a nursing home in his home state of North Dakota. He was signed in by his daughter, using the power of attorney; as part of the intake process, the facility had his daughter sign a form indicating that Neil was “incapable of making medical decisions” for himself.
A few months later Ilsa, a friend of Neil’s, contacted local lawyer Gregory Runge. Ilsa told Mr. Runge that her friend wanted to leave the nursing home and return to his own home. Mr. Runge double-checked the local court records to see that there was no guardianship or conservatorship proceeding pending, and he told Ilsa that there did not appear to be any reason Neil could not simply walk out of the nursing home. If necessary, he could revoke the power of attorney he had given his daughter — that would remove her authority to sign him in and force her to begin a guardianship proceeding if she thought he was incapable of making his own decisions.
In the course of checking out the story told to him by Ilsa, Mr. Runge looked up other court records. Though he could not find any guardianship proceeding he did find a request that the court issue a restraining order against Ilsa. The request was signed by Neil’s daughter, signing as agent under the power of attorney; it alleged that Ilsa had been guilty of “disorderly conduct” in her contact with Neil.
A few days later Mr. Runge heard from Ilsa again. She told him that Neil wanted him to bring a form revoking the power of attorney to the nursing home. Mr. Runge called Neil directly and confirmed that he wanted to leave, but that his daughter had been preventing him from going home. Mr. Runge told him that he could simply walk out of the nursing home, but agreed to bring the revocation document to Neil for his signature.
The next day Mr. Runge visited Neil in the nursing home. He explained that the power of attorney was revocable, and handed Neil a revocation form for his signature. A nurse came into the room as the two were talking, and Mr. Runge explained to her that Neil had revoked the power of attorney and intended to leave the home. Then Mr. Runge returned to his office.
A short time later Mr. Runge received a call from someone at the nursing home. They told him that Neil had been determined to be incapacitated, and that the revocation of his power of attorney would probably be ineffective. Mr. Runge responded that there did not seem to be any court finding of incapacity, that Neil had seemed to understand the significance of the revocation document, and that his daughter no longer had any authority over the decision since the power of attorney had been revoked. Neil left the nursing home later that day, and moved in to Ilsa’s apartment.
Neil did not return to the nursing home, and apparently his daughter did not initiate a guardianship proceeding. A welfare check conducted (apparently at the behest of the nursing facility) later on the day of his move found that his condition was “OK”, and that he did not want to return.
But Neil’s daughter did file a complaint with the North Dakota Supreme Court’s Disciplinary Board. She alleged that he acted improperly by preparing the revocation document without talking with her or other family members, or ascertaining Neil’s medical condition.
After a hearing, the Disciplinary Board’s local investigative committee issued a preliminary finding that Mr. Runge had violated the Rules of Professional Conduct. According to this finding, he had acted improperly by preparing a revocation of a power of attorney for a client with “limited capacity” whom he had never met. The finding also criticized him for not first communicating “with the client’s appointed representative, a family member who had been appointed in a durable power of attorney.” The committee recommended that Mr. Runge be “issued an admonishment” (the lowest level of discipline). The full Disciplinary Board upheld the proposed discipline.
After Mr. Runge appealed his admonishment, and the North Dakota Supreme Court considered the facts and holding. The state’s high court noted that North Dakota disciplinary rules give a lawyer direction about how to represent a client whose capacity may be diminished: the lawyer should maintain as close to a “normal” lawyer-client relationship as possible. Because Neil had not been found to be incapacitated by any court (there was no guardianship or conservatorship in place), and after Mr. Runge had met with him and discussed his options and the effect of revoking the power of attorney, it was entirely permissible for him to determine that Neil understood what he was doing and wanted to proceed. There was no requirement that Mr. Runge speak with Neil’s daughter before following his wishes, and the complaint against him was dismissed. In the Matter of Runge, February 12, 2015.
North Dakota, like the majority of states, has patterned its ethical rules governing lawyers after the American Bar Association’s Model Rules of Professional Conduct. So has Arizona. That means that the ethical rules governing representation of a person with diminished capacity in Arizona should lead to the same result as that reached by the North Dakota Supreme Court. It can be a challenge to determine whether a client with medical issues and complicated family dynamics really understands what they intend to do, but it is precisely the challenge that elder law attorneys navigate regularly and, frankly, enjoy. Mr. Runge should be commended for helping Neil accomplish his wishes.