The Oklahoma Bar Journal January 2026

communicating “about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order.” When a ward is totally incom petent, any approach to such a ward without court permission, the permission of the guardian or the consent of the attorney for the ward should constitute an ethical violation under Rule 4.2. HOLLY STANDARD In the Matter of the Guardianship of Holly , 10 which deals with a “par tially” incapacitated person, the Supreme Court sets out the steps an attorney must go through to enable the ward to have their own choice of an attorney. 11 The court’s opinion discusses those steps, beginning with the sentence, “First the ward may choose an attorney,” and then the court inserts footnote 7, which states, “This assumes that a ward has the capacity to make a knowing choice.”

constitutional status, the right to select one’s own counsel is not absolute. A litigant’s choice of counsel may be set aside under limited circumstances, where honoring the litigant’s choice would threaten the integrity of the judicial process.” Aside from total incompetency, Towne v. Hubbard, supra , holds that a prospective ward is entitled to an attorney of their own choice unless the trial court concludes, after an eviden tiary hearing, that the attorney is not independent or has a conflict of interest. Suppose that the court has, as it does in most cases, appointed an attorney to represent the ward. If the ward seeks other counsel and has some capacity, they have an absolute right to do so, subject to case law and the duties of counsel mandated by Rule 4.2, Rules of Professional Conduct. Rule 4.2 applies to “communica tions with any person who is rep resented by counsel concerning the matter to which the communication relates.” It prohibits a lawyer from

should be afforded a fair opportunity to secure counsel of his own choice.” This right to select counsel without state interference is implied from the nature of the attorney-client relationship within the Anglo American adversarial system of justice, wherein an attorney acts as the personal agent of the client and not of the state. It is also grounded in the due process right of an individual to make decisions affecting liti gation placing his or her liberty at risk. Legal practitioners are not interchangeable commodities . Personal qualities and profes sional abilities differ from one attorney to another, making the choice of a legal practitioner critical both in terms of the quality of the attorney-client relationship and the type and skillfulness of the professional services to be rendered. 9

In paragraph 15 of its decision, the court in Towne states, “Notwithstanding its

In a guardianship action, with a guardian appointed to make decisions for the ward, both personal and financial, an outside attorney should be required to get permission from the guardian and the ward’s appointed attorney prior to even meeting with a totally incapacitated person.

Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff.

58 | JANUARY 2026

THE OKLAHOMA BAR JOURNAL