The Texas Supreme Court will soon decide whether a lawyer should be disqualified from a contested guardianship case involving an 88-year-old woman because he helped his legal assistant get a $350,000 loan from the woman, wrote her will and later helped his employee be appointed as her guardian.
The case, In Re Thetford, concerns Verna Thetford, who resides in a Graham assisted living facility, according to documents. In 2012, Thetford loaned her niece, Jamie Rogers, money to purchase property. Graham attorney Alfred G. “Rusty” Allen III, Rogers’ longtime employer, prepared the loan. Three years later, Allen prepared a will for Thetford that appointed Rogers as power of attorney.
However, when Thetford attempted to revoke the power of attorney in 2017, Rogers pursued guardianship over Thetford and used Allen as her lawyer, documents said.
Thetford later filed a motion to disqualify Allen from the guardianship, alleging his representation of Rogers was adverse to Thetford, and that Allen’s adverse representation in the guardianship matter is substantially related to his prior representation of Thetford.
Allen argued that Thetford was declared legally incapacitated by her doctor, and that it was his affirmative duty under the Texas Disciplinary Rules of Professional Conduct to protect Thetford’s wellbeing and to initiate the guardianship proceedings.
A trial court denied Thetford’s motion to disqualify Allen. Thetford later filed a writ of mandamus with Fort Worth Second Court of Appeals challenging the decision, but the court denied her petition.
Thetford later appealed the decision to the Supreme Court, arguing that the Texas disciplinary rule of professional conduct 1.02(g) does not permit Allen’s representation of a third party with adverse interests to his client.
The high court accepted the case for review and is to hear arguments in the case Oct. 10.
“The issue in this case is whether the ethical rules authorize Mr. Allen as Verna’s longtime lawyer to represent Verna’s niece, who is indebted to Verna and to sue Verna in Guardianship,” said Mary Barkley, a partner in Fort Worth’s Cantey Hanger, who represents Thetford. “Rule 1.02 (g) says that when a lawyer believes their client is lacking in mental capacity, they shall take reasonable action in securing a guardian or someone to act on their behalf. The issue here is that Mr. Allen believes that 1.02 mandated him to sue Verna and pursue the guardianship.”
“And what we’re saying is that statute for that rule is contemplating reasonable action. Reasonable action could be any number of things,” Barkley said. “But when [Allen] represented a third party—the niece who was admittedly indebted to Verna at the time he accepted the representation and was also his employee—he ran afoul of the ethical rules.”
In his brief, Allen notes that, at the time the 2012 loan was transacted, Rogers was not an employee of his firm—she worked there from 1985 to 2005, and returned in 2016—and that the loan was eventually paid to Thetford in full. He also argues that the conflict of interest rules do not apply to the case because the guardianship proceeding is not adverse to Thetford as a matter of law, and Allen’s prior representation of Thetford is not substantially related to the guardianship proceeding.
“In view of the fact that we’ve got an argument in front of the Supreme Court in a few weeks, I don’t think it’s appropriate for me to comment about the case except to say I’ve done my best and I feel like I acted appropriately in accordance with the Texas disciplinary rules in all of my representation of Mrs. Thetford and this guardianship,’’ Allen said.
Herrmann also believes that Allen acted ethically.
“I think Mr. Allen acted appropriately within the rules and I’m reluctant to comment about the case in advance of the hearing on Oct. 10,’’ Herrmann said.