The State Bar Association of North Dakota Spring 2014 Gavel Magazine | Page 36

STATE BAR ASSOCIATION OF NORTH DAKOTA

ETHICS COMMITTEE OPINION NO. 14-01
This opinion is advisory only

QUESTION PRESENTED
Wife and Husband held general durable power of attorney (POA) for Aunt (of Wife). After establishing the POA for Aunt,
legal work was completed on behalf of Wife and Husband. It was subsequently alleged that Wife and Husband were
inappropriately using Aunt’s funds for their personal use.
The Ethics Committee has been asked to render its opinion on whether Wife and Husband are still Attorney’s clients? If not,
will his representation of Aunt in a civil action against them violate his duties owed to them as former clients under North
Rules of Professional Conduct Rule 1.9? Would such representation be a violation of any other rule?

OPINION

legal affairs. Attorney had an expectation
that he would perform legal work on
any further estate changes that would
be needed by the Wife and Husband.
Continued contacts between attorney and
clients now were exclusively regarding
Aunt’s financial and tax affairs.

APPLICABLE NORTH DAKOTA
RULES OF PROFESSIONAL
CONDUCT

In early 2013, Attorney was contacted
by Aunt’s nursing home informing him
that she was running out of money and
they were in need of financial statements
to complete an application for Medicaid.
The bank statements provided by Wife
disclosed numerous checks written
to or on behalf of Wife, totaling over
$100,000. These transfers were deemed as
disqualifying by Social Services and Aunt
was denied Medicaid.

Based on the facts presented below,
Attorney would not be able to represent
Aunt in a civil action against Wife and
Husband. Representation of Aunt would
be a violation of Rules 1.9 and 1.7, N.D.R.
Prof. Conduct.

Rule 1.7, N.D.R. Prof. Conduct: Conflict
of interest: General Rule 1.9, N.D.R. Prof.
Conduct: Duties to Former Client

FACTS PRESENTED

Attorney performed various legal services
for Aunt, most recently of these services
was assisting in drafting a durable power
of attorney. Aunt decided to appoint her
niece, Wife, as agent. Wife and Wife’s
husband, Husband, became co-agents and
were then in charge of Aunt’s financial
affairs. Wife was the primary agent
responsible for paying Aunt’s bills and
managing her financial affairs. Shortly
after, Aunt entered a nursing home.
In early 2011, Attorney represented
Husband on a child support matter and
later with estate planning documents
such as wills and a power of attorney
for both Wife and