Emerging From the Quagmire: When Your Client or His Litigation Guardian Turns on You
By Heidi Brown
April 27, 2006
Introduction
Personal injury lawyers routinely act on behalf of clients who have sustained serious physical and psychological injuries. Often, from the first day you meet a client, it is clear that he does not have the requisite capacity to instruct you in the litigation. In other cases, a client’s incapacity to instruct counsel only becomes apparent over time as the lawsuit progresses. When a client is incapable of instructing counsel ab initio or when the client is a minor, it is most often a family member who retains the lawyer on behalf of the injured plaintiff, and is later named in the action as litigation guardian on behalf of that plaintiff. If a client subsequently becomes incapable of instructing counsel, a litigation guardian can be appointed at any time in accordance with Rule 7 of the Rules of Civil Procedure.
The role of the litigation guardian, of course, is to instruct counsel on behalf of the incapable plaintiff. In most cases that do not proceed to trial, the litigation guardian usually heeds your good counsel, provides you with instructions to settle the case, and the Court ultimately approves the settlement achieved on behalf of the plaintiff. Things become considerably more complicated, however, when the litigation guardian chooses not to accept your advice, and instructs you to take steps that in your view, are not in the best interests of the incapable client. Similarly, during the course of the litigation, you may become aware of facts and/or information about the litigation guardian that lead you to believe that he/she is not acting in the best interests of the injured plaintiff. The problem will also manifest itself when your injured plaintiff does not have a litigation guardian, gives you instructions that are not in his best interests, and refuses to listen to your advice.
Consider the following scenarios that frequently emerge in a personal injury practice:
Scenario 1 In 2002, 9 year old Liza was a passenger in a vehicle that was involved in a serious motor vehicle accident. Liza sustained a moderate brain injury and is now cognitively impaired. This will impact on her future employability. Her mother, Judy, is her litigation guardian. The case has settled in 2006 subject to Court approval for a substantial sum. Despite your advice to place the bulk of the settlement funds in a structured settlement, Judy refuses to give you instructions to structure any portion of the funds.
Scenario 2 Ricky is 26 years old and was catastrophically injured as a result of a car accident when he was 24. His father, Ozzie, was also injured in the accident and sustained a broken arm. Ricky had no power of attorney at the time of the accident, and since his release from hospital, he resides with his father, Ozzie, who is currently unemployed. Ozzie retained you to act on his own behalf and on behalf of Ricky for both the tort and accident benefit cases. Ozzie is acting as Ricky’s litigation guardian. Ozzie provides attendant care to Ricky and receives money from the accident benefit insurer for performing these services. Ricky also receives income replacement benefits from the accident benefit insurer. You learn from Ozzie’s ex-wife Harriet, that Ozzie is using Ricky’s money to pay off his own creditors. Harriet lives in Calgary. Ozzie has also recently purchased a new sports car. You confront Ozzie about your concerns, and he denies any wrongdoing.
Scenario 3 You act for Sarah who suffers from chronic pain, fibromyalgia and severe depression and anxiety. She also has a history of bipolar disorder. She is suing her long term disability carrier for non-payment of benefits. During the course of the litigation, Sarah becomes increasingly depressed and stops taking her psychiatric medication. On more than one occasion she has come to your office smelling like alcohol. After examinations for discovery, you receive a reasonable offer to settle from the insurer. You meet with Sarah in order to obtain her instructions. Sarah behaves irrationally, will not provide any instructions and says her case is worth twenty times what is being offered. She then says she will never accept any offers from the insurer as her punitive damages alone are worth ten million dollars. She says that if you can’t understand her point of view, she wants another lawyer.
What should you do when your client or her litigation guardian turns on you?
In order to properly answer this question, it is important to appreciate the role of a litigation guardian in the litigation process and the legal definition of incapacity. The following is a brief overview:
Incapacity and the Litigation Guardian
The law presumes that an adult is capable of making his or her own decisions with respect to all important aspects of daily life. The law includes a presumption that an adult has capacity to instruct a lawyer. A lawyer must be certain that her client sufficiently understands:
- the nature of the retainer;
- the circumstances of the case; and
- the consequences and ramifications of the instructions given.
A client and a lawyer may disagree, and a lawyer may believe that a client is making unwise choices. However, if the client is sufficiently informed and capable of instructing counsel, the client’s wishes must be respected. The challenge arises once you are well into the litigation process and you conclude that your client no longer has the requisite capacity to instruct you.
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Emerging From the Quagmire: When Your Client or His Litigation Guardian Turns on You
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