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Since becoming a lawyer, I've often thought that it must be especially challenging to represent a client with diminished capacities.1 Calls to the Office of Professional Conduct's Ethics Hotline, and even some of the informal complaints I've reviewed confirm this. The Hotline calls involve queries about whether an attorney can substitute the attorney's judgment for that of the client, and whether it's consistent with the duty of loyalty for the attorney to initiate proceedings to secure the appointment of a legal representative for the client, especially if the client opposes it. Informal complaints have been submitted to the OPC by family members distressed about what they consider over-reaching by the attorney.2
Most often, elderly relatives are the subject of the informal complaints, but consider, too, that a person need not be elderly or mentally retarded to render
informed-decision-making difficult if not virtually impossible - youth, dementia, illness, chemical dependency, mental illness, and communication challenges being among the many examples.
We're all familiar with the rule that requires an attorney to "explain a matter to the extent reasonably necessary to enable the client to make informed decisions regarding
the representation," but in a disabled person's case, wouldn't you necessarily fall short? Rule 1.4(b), Utah R. Pro. Con. And what about the rule requiring an attorney to "abide
by a client's decisions concerning the objectives of representation?" Rule 1.2(a), Utah R. Pro. Con.
The Rules of Professional Conduct provide some guidance: "When a
client's ability to make adequately considered decisions in connection with the representation is impaired, whether because of minority, mental disability or for some other reason, the
lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the person." Rule 1.14(a), Utah R. Pro. Con. This means that the attorney/client
relationship should be kept as normal as possible, which of course entails a heightened duty for the lawyer to try to communicate so as to allow the client to decide the scope and
objectives of the representation.3 Lawyers are not allowed to shrug off their duties of communication simply because the client has diminished capacity.
The Comment
following the rule acknowledges that although "normal" client-lawyer relationships assume that clients are capable of making important decisions, this may not always be
possible. See Comment, Rule 1.14, Utah R. Pro. Con. Nevertheless, the attorney must "treat the client with attention and respect," and "has the duty to take action consistent with the client's directions and decisions." See id.
Remember that even if the lawyer believes the decision ill-considered or unwise, this doesn't necessarily mean it's not been made in the client's interest. As a New Jersey court explained
in connection with a case involving a client with Down's syndrome, the lawyer must advocate the client's positions unless they are "patently absurd" or present unreasonable risk
of harm to the client's health, safety, or welfare. See In re M.R., 638 A.2d 1274, 1284-1285 (N.J. 1994).
Sometimes, clients have a legal representative - a guardian or
conservator who can make decisions on their behalf. See Comment, Rule 1.14, Utah R. Pro. Con. This usually makes the lawyer's job easier.4 But what if there isn't a legal representative, and the lawyer is certain the client can't understand matters related to the representation? In that case, if the lawyer reasonably believes the client can't adequately act in the client's own interests, "A lawyer may seek the appointment of a guardian or take other protective action with respect to a client, . . ." Rule 1.14(b), Utah R. Pro. Con.5
As anyone who has faced making similar decisions about elderly family members can attest, this is surely one of the most weighty decisions an attorney can make. Taking
protective action depends upon the attorney's reasonable belief that the client needs it. Again, the Comment offers some guidance, permitting the attorney to seek information from
"diagnosticians, family members or other interested persons" without violating the confidentiality rule. See Comment, Rule 1.14, Utah R. Pro. Con.6 Beware undue haste, however.7 Having decided that protective action is necessary, the Comment exhorts lawyers to make it "the least restrictive under the circumstances." As one ABA Formal Ethics Opinion puts it, "appointment of a guardian is a serious deprivation of a client's rights and should be avoided if other, less-drastic solutions are available." Op. 96-404 (1996). Consider the alternatives: would a power of attorney work as well in this circumstance?
Don't ask to be appointed the guardian. See ABA Formal Ethics Op. 96-404 (1996). The whole point of seeking a legal representative for the client, who can make considered decisions on behalf of the client, is to maintain your own role as the lawyer.
What about substituting your own judgment for that of the client when there isn't a legal representative empowered to do the decision-making? The Model Rules of Professional
Conduct aren't clear on this point, but the Restatement of the Law Governing Lawyers suggests that "the lawyer may be justified in making decisions regarding issues within the scope
of representation that would normally be made by the client." Restatement (Third) of the Law Governing Lawyers ¤ 24 cmt. D. (2000). Attorneys who call me on the Ethics Hotline can
expect the most conservative answer, and here the answer would be to avoid jumping in without explicit authorization under the rules. Emergency legal assistance is sometimes condoned, as
the Comment acknowledges, but in that event, the lawyer should act only to the extent reasonably necessary to maintain the status quo, then regroup.
These are difficult issues, and
the rules require additional effort on the part of the attorney who represents a person with diminished capacity. On the other hand, neither are you required to do the impossible. Make
the reasonable effort to communicate with a disabled client and follow the course they or their legal representatives set for you. Avoid the temptation of thinking you know what's best
for the person with diminished capacities; leave that to the client, or to the legal representative more intimately involved with the client's daily life. In situations in which you are
reasonably persuaded that protective action must be taken, consider the options and select the least restrictive.
Footnotes
1. "Diminished capacity" is the nomenclature used in the 2002 changes to the ABA Model Rules of Professional Conduct. Utah's rule still uses the term "disabilitiy."
2. See e.g. In re McInerny, 451 N.E.2d 401, 537-539 (Mass. Ct. 1983) (attorney improperly caused elderly client to put funds in joint account with attorney without suggesting
need for independent legal advice).
3. See e.g. Nebraska Bar Ass'n v. Walsh, 294 N.W.2d 873 (Neb. 1980) (lawyer's failure to fully communicate with deaf client so client
could decide whether to pursue appeal resulted in attorney discipline).
4. Though it doesn't necessarily satisfy all the attorney's concerns about the client. We've sometimes had
calls from attorneys who don't believe the legal representative is acting in the client's best interests. See e.g. Developmental Disabilities Advocacy Ctr. v. Melton, 521 F. Supp. 365 (D. N.H. 1981), remanded on other grounds, 684 F.2d 281 (1982); but see In re Fraser, 523 P.2d 921, 928 (Wash. 1974) (lawyer fired by guardian properly refused to withdraw until new counsel had been secured when guardian's motives were suspect).
5. Ethics opinions on this subject abound. See Laws. Man. on Prof. Conduct (ABA/BNA) 31:603 (subheading "Guardianship And Protective Action; When: Determining Disability) (collecting ethics opinions).
6. Utah's Comment sets forth this exception. By contrast, the Model Rules of Professional Responsibility make it a part of the rule. See Rule 1.14(c), Model R. Pro. Con. Ethics opinions from jurisdictions around the country are split on this issue. See Laws. Man. on Prof. Conduct (ABA/BNA) 31:603 (subheading "Guardianship and Protective Action; How: Revealing Confidences) (collecting ethics opinions).
7. In In re Brantley, 920 P.2d 433, 606 (Kan. 1996), the attorney was sanctioned for filing involuntary proceedings without personally meeting with the client.
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