Lawyer disputes son's claims - Albuquerque Journal

Lawyer disputes son’s claims

Copyright © 2021 Albuquerque Journal

Las Cruces attorney CaraLyn Banks defends her work in the Dorris Hamilton guardianship case and says her only goal was to protect her.

In a phone interview last week, Banks said Rio Hamilton consented to filing the guardianship petition, contrary to his assertions. Asked whether he signed a document she could furnish to the Journal reflecting that, Banks said, “Ma’am I filed this on behalf of his mother to make sure she was protected. He was never my client.”

The petition she filed says, “COMES NOW petitioner Rio Hamilton, by and through his counsel undersigned, Kemp SMITH LLP (CaraLyn Banks, Esq.)”

Nowhere does the petition contain his signature.

Banks said it was “incorrect” to say that all Hamilton wanted was power of attorney when he brought his mother into her office in July 2019.

Asked what was incorrect, she replied, “They wanted a power of attorney, but Mrs. Hamilton was not … (she) lacked capacity to make a decision.”

Asked who decided she lacked capacity, Banks said, “I did.”

And what made Banks qualified to make that decision on capacity?

“I’m an attorney. I asked her questions. I spoke with Mr. Hamilton about his mother’s living conditions, and I saw the photographs of the house that Mr. Hamilton showed me.”

She said that under the rules of professional responsibility for lawyers, she was “required” to file the petition, which claimed Dorris Hamilton suffered from memory loss and had vascular dementia. It also said she “may” have been subject to financial exploitation.

Asked by the Journal whether it is common for her to file such cases when she deems that someone lacks capacity, Banks said, “No, typically I have information from physicians. But it is my obligation to Mrs. Hamilton, who was in my office prior to 2019, and I had an established relationship with her, and it’s my obligation under the rules of professional responsibility to make sure she’s safe.”

Yet Banks, in a sworn affidavit filed with the temporary guardianship petition in 2019, said, “I have not represented the identified individual who is the subject of these proceedings prior to this proceeding in any capacity.”

Asked about that last week, Banks said, “You know, I don’t have that (affidavit) sitting in front of me, so I can’t comment one way or the other.”

When the Journal offered to send her a copy, Banks replied, “I don’t know what to say. It sounds like … it doesn’t matter what I say. I don’t know what to tell you.”

Typically in a traditional guardianship case, a judge receives a report from a qualified health care professional who aids in the assessment of functional impairment. But as happens in temporary guardianship cases, that expert’s report wasn’t received until several weeks after the temporary guardianship of Dorris Hamilton was approved by chief state District Judge Manuel Arrieta of Las Cruces.

The expert’s report is sealed.

In the phone interview with the Journal, Banks declined to say whether she had any continuing concerns or qualms about Dorris Hamilton’s current situation, citing “attorney client privileged information.”

“I can’t defend myself, because it’s protected,” Banks told the Journal, adding that it was “interesting that Mr. Hamilton can say what he wants and people believe him, and others who understand the importance of protecting Mrs. Hamilton can’t defend themselves.”

She said that even if a judge permitted her to speak, she couldn’t because of the attorney-client privilege with Dorris Hamilton.

Asked whether Dorris Hamilton could waive that privilege as her client, Banks responded: “Mrs. Hamilton lacks capacity to make decisions, and I’m not going to assume that she can waive that privilege, so, no.”

 

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