The Oklahoma Bar Journal January 2026

attorney risks accusations of undue influence, overreaching and rank dishonesty. The optics of such a meeting are awful. If the ward has the capacity to make a choice, then the choice of an attorney by the ward must be given effect. 12 “The attorney appointed by the court shall be replaced by another attorney if: a.) the sub ject of the proceeding prefers the services of an attorney other than the one initially appointed for him; b.) the preferred attorney agrees to accept the responsibility; and c.) the subject to the proceeding or the attorney whom he prefers notifies the Court of the preference and the attorney’s acceptance of employment.” Therefore, if a ward has the capacity to make a choice of counsel, the ethical rules in 4.2 and 1.14 do not stand in a nominated attorney’s way, and that choice must be granted by the court. However, if the ward lacks the capacity to choose their own attor ney, for example, as determined by an expert, no other attorney should be allowed to even approach a totally incapacitated ward. CONCLUSION This article should make clear that it is unethical to speak to a totally incompetent ward. Any attorney, regardless of how they were contacted or by whom, should never approach a represented ward who is totally incompetent. This is a bright line that should never be crossed. A Holly hearing should not be authorized by the court when a ward has been determined to be totally incompetent. When a Holly hearing is allowed to occur in the face of demonstrated total inca pacity of the ward, the process, the ward’s dignity and the dignity of the court are impugned.

When a ward lacks the capac ity to make a knowing choice, the court should not allow an attor ney to displace one that has been appointed by the court. Lacking the capacity to make that choice ren ders a choice impossible. Allowing an attorney to meet with a totally incapacitated ward threatens the integrity of the judicial process and, without safeguards such as the consent of the attorney, the court and the guardian, violates an attor ney’s duties under Rule 4.2. Comment 3 to Rule 4.2 indicates that the rule applies even though the represented person initiates or consents to the communication. “A lawyer must immediately terminate communication with a person if, after commencing communication, the lawyer learns that the person is one with whom communication is not permitted by this Rule.” Rule 1.14 suggests that if an attor ney has already been appointed for a ward, the lawyer should ordinarily look to the representative for deci sions on behalf of the client. Because the ward in Holly , supra , had limited capacity, the ward’s nominated counsel was not required to seek approval of the court-appointed counsel or the limited guardian prior to speaking with the ward. Rules 1.14 and 4.2 were relaxed in Holly simply because the ward had restored capacity, and the guardian ship was limited. 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. Any meeting with a totally incapacitated ward who has an existing guardian and

ABOUT THE AUTHOR

A Tulsa native, Todd Alexander is an experienced family law attorney. He has served as a guardian ad litem

for over 20 years and as a parent coordinator in over 100 cases. His practice focuses solely on family law matters, including divorce, paternity, modifications, guardianships and probate. He is an award-winning mediator, frequent CLE presenter and adjunct professor at TU. He and his wife have two grown children, and he is also an amateur musician. 2. See Title 30 O.S. Section 1-103 B. 3. See 3-107 C.2. 4. See Section 3-107 E. 1. 5. See Section 3-107 E. 3. 6. See Section 3-107 F. 1. 7. See Title 30 O.S. Section 3-107. 8. Towne v. Hubbard , 2000 OK 30, 3 P. 3d 9. See Towne v. Hubbard, supra, at ¶14. 10. Matter of the Guardianship of Holly, 2007 OK 53, 164 P.3d 137. 11. See Holly, supra, at ¶3. 12. Section 3-107 (E) (2). 154, 71 OBJ 960. ENDNOTES 1. See Rule 1.14, Oklahoma Rules of Professional Conduct.

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.

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THE OKLAHOMA BAR JOURNAL