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Question raised about conflict of interest for lawyers

ALBUQUERQUE, N.M. — Should New Mexico attorneys petition the court for people seeking professional guardians or conservators when they also represent the prospective guardian or conservator company in other matters?

That’s among the sticky ethical questions that guardianship commission Chairwoman Wendy York has posed to the state’s chief disciplinary counsel, William Slease, for an opinion.

York announced at a Friday commission meeting in Albuquerque that her research on guardianship issues has raised questions about potential conflicts of interest and other ethical issues that can arise in cases involving third-party corporate guardians and conservators.

“I wanted to know whether our current rules address this issue,” York said.

Attorneys play a major role in guardianship/conservator cases, which are cloaked in secrecy under state law. All records, except for a brief court docket sheet summarizing actions in the case, are sealed. All hearings in the case are sequestered.

To file a guardianship request, a petitioner, often a family member, typically needs an attorney. Judges often rely on the petitioner and his or her attorney to recommend a guardian or conservator for appointment.

At times, those companies’ attorneys also represent the petitioner.

A petitioner’s attorney, for example, might be reticent to challenge or try to remove a guardian or conservator on behalf of a client if that same lawyer also represents the guardianship company in other cases. Sometimes clients aren’t told about such potential conflicts beforehand and find themselves having to hire a new attorney.

Adds York, now a private mediator, “I think the guidance (from the chief disciplinary counsel) might be helpful.”

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