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ER 1.14 Client with Diminished Capacity

The Standard

When a client’s capacity to make adequately considered decisions related to the representation is diminished, the lawyer shall, as reasonably possible, maintain a normal client-lawyer relationship with the client. The lawyer must treat the client with attention and respect and, as far as possible, maintain communication with the client, even if the client has a legal representative or other involved third parties. The lawyer may take reasonably necessary protective action only when the lawyer reasonably believes a client with diminished capacity is at risk of substantial harm and cannot adequately self-protect.

The Limitation

When taking protective action, a lawyer may sometimes be impliedly authorized to reveal information about the client, but only to the extent reasonably necessary to protect the client’s interests.

FAQs

I’m not a mental health professional. How do I know if a client has diminished capacity?

Lawyers have the discretion to evaluate the totality of the circumstances, using their best professional judgment, based on their life experience. Factors to consider include:  the client’s ability to articulate reasoning for a decision; variability of state of mind and ability to appreciate consequences of a decision; the substantive fairness of a decision; and the consistency of a decision with the known long-term commitments and values of the client. Where appropriate, the lawyer may seek guidance from a diagnostician.  Depending on the circumstances, a frank discussion with family members can also assist in determining whether diminished capacity is a valid concern.

Are minors considered clients with diminished capacity, allowing for protective action?

Not always. Children as young as five or six are regarded as having opinions that are entitled to weight in legal proceedings concerning custody. When representing minors, do not use a substituted judgment model of decision-making/advocacy when the child is able to express a preference or objective. And be especially cautious not to slip into the role of a best interests attorney/GAL, if you have not been appointed in that capacity. There are other considerations present when representing minors, such as the need for a legal guardian to assist with decision-making, or signing contracts, agreements etc., but the mere fact of minority is not per se diminished capacity as contemplated by ER 1.14.

My elderly estate planning client is showing signs of dementia. He lives alone but has a daughter who lives nearby. May I contact her to express my concerns?

First, express your concern for the client’s wellbeing directly with the client, and seek the client’s preference for a third-party contact. These “if/then” contingency planning conversations are best had at the engagement level, or before capacity issues arise, particularly in an elder law practice. If the client will not consent to the involvement of a third party, you may take protective action but only if the client is at substantial risk of harm and cannot act in his own interest. Such protective action may include consulting family or others who will act in the client’s best interests.

My adult client with diminished capacity has a legal guardian. Should I limit my communication about the representation to the guardian?

No. Although the lawyer should consult with the guardian about objectives and decisions, the fact that a client suffers a disability does not diminish the lawyer’s obligation to treat the client with attention and respect. Even when there is a legal representative, the lawyer should, where possible, accord the represented person the status of client, particularly in maintaining communication.

In representing a minor, do I have to defer to the parents as the natural guardians?

This will depend on the type of proceeding/matter but minors do not automatically lack capacity and it is often appropriate and necessary to exclude parents from substantive attorney-client communications.  Parents are obviously needed to sign contracts or other agreements for the minor, but you should attempt to have a normal attorney-client relationship with minor clients.

If I conclude it’s reasonable to take protective action, what might that include?

Such measures may include consulting with family, using a reconsideration period to permit clarification or improvement of circumstances, use of voluntary surrogate decision-making tools such as durable POAs, or consulting with support groups, professional services, adult-protective agencies, or other individuals or entities that have the ability to protect the client. Sometimes the lawyer may need to seek appointment of a guardian, GAL or conservator, although this should be considered as a last resort. In evaluating options, the lawyer should take the least restrictive action on behalf of the client, considering the client’s best interests, and known wishes and values.

I have serious concerns about the capacity of a prospective client; I’m not even sure he can sign a fee agreement. Should I take protective measures in this situation, for a non-client?

Lawyers may provide emergency legal assistance: 1) only where the health, safety, or financial interest of a person with seriously diminished capacity is threatened with imminent and irreparable harm; 2) only if the lawyer concludes that no one else can act for the person; and 3) only to the extent reasonably necessary to maintain the status quo. This level of exigency arises infrequently, and the lawyer’s unusual role should be disclosed to any involved tribunal and the attorney-client relationship should be regularized as soon as possible. If you have such serious concerns at the outset, about a prospective client’s capacity, you might want to evaluate whether to even accept the representation, depending on the type of legal representation you’re being asked to provide.

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