No Violation For Assisting Client In Revoking Power Of Attorney

The North Dakota Supreme Court has dismissed ethics charges against an attorney who was alleged to have violated Rule 1.14 in his representation of a client who desired to revoke a power of attorney.

Here, Runge was retained for the purpose of helping [client] Franz execute necessary documents to leave [living facility] Missouri Slope. According to Runge, he ascertained no conservatorship or guardianship was in place for Franz, but found a power of attorney designating [daughter] Pfeifer as Franz’s attorney-in-fact existed. Runge indicated he talked to Franz on the telephone on April 2, 2013, and Franz expressed his desire to leave the nursing home. Runge stated he drafted the revocation of the power of attorney for Franz and took the document to the nursing home on April 2, 2013, where he personally met with Franz and discussed the ramifications of the revocation. According to Runge, Franz signed the revocation after indicating he understood the document. Runge stated concerns about Franz’s health may have existed when Franz first arrived at the nursing home in October 2012, but those concerns did not exist in April 2013, and the decision to leave the nursing home was Franz’s decision. The evidence indicates Runge was adequately and reasonably able to evaluate Franz’s capacity from the telephone conversation and in the personal meeting with Franz at Missouri Slope on April 2, 2013. Runge’s assessment of Franz’s capacity was within the range of a lawyer’s exercise of professional judgment…

Here no guardianship or conservatorship existed that withdrew Franz’s authority to act for himself. Rather, Franz shared his authority to act and he remained free to withdraw the authority conferred under that power of attorney, which, in any event, precluded anyone from making his medical decisions. This record reflects Runge talked with Franz by telephone and in person to ascertain his wishes before Franz revoked the power of attorney. Runge’s recitation of his conversations with Franz does not clearly and convincingly establish Franz was incapacitated in April 2013. This record does not reflect any subsequent attempt to obtain a court-ordered guardianship or conservatorship for Franz, which belies any suggestion that he was incapacitated in April 2013. Nothing indicates Runge did not understand the limited powers conferred upon Pfeifer by the power of attorney and by the emergency care statement when Franz executed the revocation of the power of attorney on April 2, 2013. This Court recognized the rules of professional conduct set a minimum level of conduct for discipline. See Disciplinary Action Against McKechnie, 2003 ND 22, ¶ 16, 656 N.W.2d 661. Runge’s communications with Franz demonstrated Franz’s ability to articulate the reasons for his desire to leave the nursing home and to appreciate the consequences of his decision. See N.D.R. Prof. Conduct 1.14 cmt. 6 (outlining factors for assessing capacity). Although Runge could have contacted Pfeifer before Franz executed the revocation of the power of attorney, N.D.R. Prof. Conduct 1.14 did not require him to contact her after ascertaining Franz’s capacity. We conclude clear and convincing evidence does not establish Runge violated N.D.R. Prof. Conduct 1.14. The complaint against Runge is dismissed.

The Disciplinary Board had issued an admonition.

I do not recall a case where an alleged Rule 1.14 has been the sole charge.

The rule concerning clients with diminished capacity is not designed with enforcement intentions (in sharp contrast to many other rules). It reads more like an “ethical consideration” under the old Code of Professional Responsibility.

You do see the rule invoked as a defense or explanation in disciplinary proceedings.  (Mike Frisch)