This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C1-96-2497

In Re: Conservatorship of

Gertrude Elizabeth Delaney,

Conservatee.

Filed July 22, 1997

Affirmed

Harten, Judge

Ramsey County District Court

File No. P1-95-5336

Roger C. Clarke, 1012 Grain Exchange Bldg., Minneapolis, MN 55415 (for Appellants Gertrude Delaney and Roger Clarke)

Gregory J. Holly, Sean Adam Shiff, McGuigan & Holly, P.L.C., 200 Liberty Bank Bldg., 176 North Snelling Avenue, St. Paul, MN 55104 (for Respondent Conservators Plus)

Michael D. Quayle, Merrigan, Quayle, Brandt & Ostenso, P.L.L.P., 25 Ninth Avenue North, P. O. Box 458, Hopkins, MN 55343-0458 (for Respondents Joseph and Edward Delaney)

Randy F. Boggio, Garvey, Mathison & Boggio, 9995 Lyndale Avenue South, Bloomington, MN 55420 (for Respondent Kathleen Delaney)

Considered and decided by Willis, Presiding Judge, Crippen, Judge, and Harten, Judge.

U N P U B L I S H E D O P I N I O N

HARTEN, Judge

Appellants are an attorney and the conservatee whom he claims to represent; respondents are some of the conservatee's children and the court-appointed conservator. Appellant attorney challenges the district court's denial of his motion to authorize payment of his fees from the conservatee's estate; appellant conservatee challenges the granting of respondent children's motion for a protective order and increased visitation. Because we conclude that the attorney lacked authority to represent the conservatee and that respondents' visitation petition was properly before the district court, we affirm.

FACTS

Appellant Gertrude Delaney, now age 87, has had several strokes and requires daily care. For several years, she has lived in an apartment with her son, Michael Delaney, who, with his sister, respondent Kathleen Delaney, provides care for Gertrude Delaney.

After Gertrude Delaney transferred her real property to Kathleen Delaney, her sons, respondents Joseph Delaney and Edward Delaney, petitioned for appointment of a conservator for their mother. Although counsel for Gertrude Delaney opposed the petition, respondent Conservators Plus, Inc. (CPI), was appointed conservator.

At the district court's direction, CPI began an investigation of the real property transfer and advised Kathleen Delaney to retain an attorney to protect her interests. She retained appellant attorney Roger Clarke, who agreed to represent both her and Gertrude Delaney.

Clarke's stated objective on the fee agreement signed by both Kathleen and Gertrude Delaney was one of two alternatives (either of which would have terminated CPI's investigation)--having Gertrude Delaney restored to capacity or replacing CPI as conservator.[1]

Clarke notified CPI that the law firm that had represented Gertrude Delaney prior to the conservatorship had withdrawn and that he was substituted as her counsel. CPI repeatedly informed Clarke that it disputed his right to represent Gertrude Delaney and refused to pay Clarke's fees for representing her.

Following reports of hostility and violence between Kathleen and Michael Delaney, CPI moved the court to authorize the move of Gertrude Delaney to a nursing home. At the hearing on this motion, Gertrude was able to respond to Clarke's direct examination, but on cross-examination she was unable to identify Clarke. The district court denied the motion to move her to a nursing home.

CPI then brought an action against Kathleen Delaney to set aside the real estate transfer. Kathleen Delaney retained another attorney to represent her in this matter. Clarke continued to claim to represent Gertrude Delaney, notwithstanding the fact that Kathleen Delaney guaranteed payment of his fees if he could not obtain them from Gertrude Delaney's estate.

Clarke brought a motion in Gertrude Delaney's name to have CPI replaced by Michael Delaney as conservator of Gertrude Delaney's estate and Kathleen Delaney as conservator of her person, and brought his own motion for an order requiring CPI to pay his fees. These motions were consolidated with a motion brought by Joseph and Edward Delaney to have their mother moved to a nursing home, or alternatively, to provide them with more liberal visitation with her.

At the hearings, the district court declined to have Gertrude Delaney examined or cross-examined, but said it would listen to anything she wished to say independently. She said four words, "Living conditions very good." In response to the district court's questions, she said that she did not understand "what we're here for today," and that she could not see her conservator in court; she then asked what a conservator was.

Following the hearings, the court issued orders, among other things, denying Clarke's motion for attorney fees and granting the motion to amend the visitation schedules of Joseph and Edward Delaney.[2]

Gertrude Delaney, through Clarke, appeals the amendment of the visitation order, and Clarke individually appeals from the denial of his fees.

D E C I S I O N[3]

1. Payment of Clarke's fees.

The district court denied Clarke's motion for payment of attorney fees from Gertrude Delaney's estate because it found no legitimate representation of Gertrude Delaney by Clarke, due to: (a) the conflict of interest with Clarke's simultaneous representation of Kathleen Delaney; (b) Gertrude Delaney's lack of capacity to enter into a contract; and (c) Clarke's failure to obtain a court appointment to represent a conservatee. A decision on attorney fees must be sustained unless it was an abuse of discretion. In re Conservatorship of W.L., 552 N.W.2d 734, 737 (Minn. App. 1996).

A. Conflict of interest.

The Rules of Professional Conduct set forth the standards for avoiding conflict of interest. Minn. R. Prof. Conduct 1.7 provides that:

(a) A lawyer shall not represent a client if the representation of that client will be directly adverse to another client, unless:

* * * *

(2) each client consents after consultation.

(b) A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer's responsibilities to another client or to a third person, or by the lawyer's own interests, unless:

* * * *

(2) the client consents after consultation.

Clarke's second fee agreement set forth Kathleen Delaney's consent to represent both her and her mother; Clarke, however, never consulted or obtained the consent of Gertrude Delaney. Had she been consulted, Gertrude Delaney could not have knowingly consented because she could not have comprehended the circumstances.

The conflict between the interests of Gertrude and Kathleen Delaney was obvious from CPI's investigation of Kathleen Delaney's alleged undue influence over her mother. When Kathleen Delaney retained Clarke, he agreed to represent both her and her mother in an effort to remove CPI as conservator, thus preventing its undue influence investigation.

Compliance with the Rules of Professional Conduct is judged by an objective standard. See, e.g., In re Disciplinary Action against Graham, 453 N.W.2d 313, 322 (Minn. 1990) (holding that in finding a violation of Minn. R. Prof. Conduct 8.2, "the standard must be an objective one dependent on what the reasonable attorney, considered in light of all his professional functions, would do in the same or similar circumstances"). A reasonable attorney would not have agreed to represent both the individual alleged to have exercised undue influence and the individual over whom the undue influence was allegedly exercised.

Minn. R. Prof. Conduct 1.8(f) provides that an attorney shall not accept compensation from someone other than a client unless the client consents after consultation and there is no interference with the lawyer's professional judgment or the lawyer-client relationship. Clarke accepted a $1,500 retainer fee from Kathleen Delaney. Further, he arranged that she would pay his fees if CPI would not pay them from the conservatorship. Defending Gertrude Delaney's interests against those of her daughter, Kathleen (as Clarke claimed to be doing in the second fee agreement), while knowing that Kathleen could be his ultimate source of payment, necessarily created a conflict.

The evidence supports the district court finding of a conflict of interest.

B. Gertrude Delaney's lack of capacity to contract.

Evidence also supports the finding that Gertrude Delaney lacked the capacity to contract in January 1996 when Clarke purportedly was hired. Physicians from the Mayo Clinic who had examined Gertrude Delaney in late 1995 reported that

[i]mpairments in her ability to acquire and utilize new information prevent her from making and effectively communicating responsible decisions regarding her estate or her person to another person who would act as her attorney.

If she could not make a responsible decision or communicate that decision to an attorney, she lacked the capacity to hire an attorney. Moreover, as a conservatee, there was a statutory prohibition against her entering into contracts without the approval of her conservator. See Minn. Stat. § 525.56, subd. 3(5) (1996). Clarke knew Gertrude Delaney was a conservatee at the time he entered into the first fee agreement with her. He cannot claim the benefit of that contract. See In re Guardianship of Dawson, 502 N.W.2d 65, 67-68 (Minn. App. 1993) (where a transferee had notice of the transferor's incompetence, the transfer could be declared void or set aside), review denied (Minn. Aug. 16, 1993).

C. Clarke's failure to obtain court appointment.

The statutes provide that a conservatee cannot contract without the conservator's approval, Minn. Stat. § 525.56, subd. 3(5), that a conservator is at all times and in all things subject to the court, Minn. Stat. § 525.56, subd. 1 (1996), and that court-appointed counsel is to continue to represent a conservatee until released by the court, Minn. Stat. § 525.5501, subd. 1 (1996). Clarke argues that when conservatees obtain their own counsel, court approval is not required. This may be true if the attorney has been retained prior to establishment of the conservatorship. Thus, counsel who acted for Gertrude Delaney in opposing the establishment of her conservatorship might not have needed court approval to continue to represent her. But where the representation begins after the conservatorship is established, the conservator must approve it, subject to court scrutiny. Here, Clarke was asked repeatedly by the district court if he had been appointed and told that he should seek appointment, all to no avail.

We conclude that the evidence supports the district court findings (1) that there was a conflict of interest inherent in Clarke's representation of Gertrude and Kathleen Delaney, (2) that Gertrude Delaney lacked the capacity to enter into a contract to hire an attorney, and (3) that Clarke failed to get the necessary court appointment to represent a conservatee. We also conclude that the district court correctly denied Clarke's motion for attorney fees from the conservatorship.

2. The motion to amend visitation.

Clarke contends that it was improper for the district court to grant the petition to amend visitation because it had been withdrawn. We disagree. Joseph and Edward Delaney's petition had sought either a removal of Gertrude Delaney to a nursing home or increased visitation for themselves. They withdrew "their petition to move Gertrude Delaney to a nursing home * * * ," but not their petition for increased visitation. That petition was still before the court, and was appropriately granted.

Affirmed.

[ ]1 While the fee agreement listed having Gertrude restored to capacity as an alternative objective, Clarke's efforts were directed to having CPI removed as conservator.

[ ]2 The real property issue was disposed of when Kathleen Delaney agreed to quitclaim the property back to her mother; the motion for removal of Gertrude Delaney to a nursing home was withdrawn.

[ ]3 We decline to address in detail the four issues that respondent does not dispute. We note, however, that while Gertrude Delaney has a right to an attorney, she does not necessarily have a right to have that attorney be Roger Clarke; that Gertrude Delaney was not permitted to testify because her previous appearance had convinced the district court that she lacked capacity; that Gertrude Delaney's right to notice of a change of her abode is not implicated by the protective order allowing her to be moved in the event of violence or the threat of violence between her two care-givers; and that the attorney for CPI was not obligated to respond to Clarke's discovery requests because Clarke had no right to represent Gertrude Delaney.