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Factual Background:

In 2007, Mary Lou Schieber was adjudicated to be totally incapacitated and disabled, and attorney Scott Ross was appointed to represent Mrs. Schieber in the proceedings.  On July 15, 2008, the trial court set a hearing for August 1, 2008, during which it would conduct its annual review of Mrs. Schieber’s status.  Prior to the hearing, attorney Steven Petry filed an entry of appearance on behalf of Mrs. Schieber.  Mr. Ross then filed a motion to disqualify Mr. Petry.  He argued that Mr. Petry had a conflict of interest in that he had represented Mrs. Schieber’s sister in connection with her motion to remove Mrs. Schieber’s guardian and conservator.  He also argued that the prior adjudication declaring Mrs. Schieber totally incapacitated and disabled established that she did not have capacity to retain private counsel.  Mr. Petry argued that in order to determine whether Mrs. Schieber had the capacity to retain counsel, the court had to speak with Mrs. Schieber directly; therefore, her presence at the hearing was required.  Mr. Petry also argued that there was no conflict of interest created by his representation of Mrs. Schieber’s sister because the sister’s motion seeking to remove the guardian and conservator was filed on behalf of Mrs. Schieber.

Held:

The Circuit Court of Nodaway County granted the motion to disqualify, stating that Mr. Petry’s representation of Mrs. Schieber’s sister constituted a conflict of interest and that Mrs. Schieber did not have capacity to hire private counsel.  Steven Petry appealed.

On Appeal:

Affirmed.  An alleged incompetent is not required to be present at a hearing on a motion to disqualify private counsel.  The fact that an individual has been declared incapacitated does not entirely foreclose the possibility that the individual may retain private counsel, but it is within the court’s discretion to disqualify private counsel that it believes would not be free from outside influence.

Rationale:

Though an incapacitated person has the right to be present at a hearing on capacity or disability, there is no authority governing the right to be present at a hearing on a motion to disqualify private counsel.  A court is free to question the incapacitated person directly when ascertaining whether the individual has capacity to retain private counsel, but a court is not required to do so; therefore, an incapacitated person does not have a right to be present at a hearing concerning the disqualification of private counsel.

With respect to the retention of private counsel by an alleged incompetent, the trial court must be satisfied that the individual wishes to be represented by private counsel and has capacity to make such a choice.  If the individual does not have capacity, the court should be satisfied that private counsel is, and will continue to be, free from outside influence.  Pursuant to RSMo. §475.078.3, “[a] person who has been adjudicated incapacitated or disabled or both shall be presumed to be incompetent.”  A court may declare an incapacitated person competent for other purposes, such as retaining private counsel, but it is not required to do so.  Thus, if a trial court believes that an incapacitated person does not have the capacity to choose their own counsel and that the private counsel would not be free from outside influence, the court can disqualify the private counsel.