May 22 — An attorney wishing to take protective action for an adult client with diminished capacity should be guided by the client's desires, minimize intrusion into the client's decision-making authority and keep information confidential unless disclosure is necessary to protect the client's interests, the Colorado bar's ethics committee advised May 6.
The opinion—a how-to for complying with the ethics rule on representing clients with diminished capacity—takes a comprehensive look what lawyers may, must and must not do when an adult client appears to be suffering from dementia or other form of mental impairment.
When a client's capacity to make decision about a representation is diminished, Colorado Rule of Professional Conduct 1.14 requires the lawyer to maintain, as much as possible, a normal client-lawyer relationship with the individual.
To comply with this mandate, the committee said, the lawyer must give the client attention and respect, attempt to communicate and discuss relevant matters with the client and take action consistent with the client's directions and decisions to the extent reasonably possible. A client's diminished capacity doesn't excuse a lawyer from making efforts to consult with the client about matters and issues in the representation, it said.
• acting solely as an arm of the court;
• waiving the client's rights without consultation as in the client's “best interests”;
• divulging the client's confidences;
• disregarding the client's wishes; or
• presenting evidence against the client.
A client's poor judgment by itself doesn't qualify as mental incapacity and can't justify taking protective action, the opinion makes clear. Rather, Rule 1.14 focuses on a client's “capacity to make adequately considered decisions in connection with a representation.” A client may have that capacity for some aspects of the representation but be impaired concerning other aspects that are more complex, the committee said.
Comment  to Rule 1.14 enumerates several factors the attorney should consider in assessing deficiency in a client's mental capacity, the committee noted. If necessary, it said, the lawyer may seek information and assistance from others such as the client's family members or appropriate diagnosticians, but in doing so the lawyer must take care not to share information with anyone whose interests are potentially adverse to the client.
The opinion points out that some prospective clients may lack mental capacity to enter into a lawyer-client relationship in the first place. In that case, the panel said, the lawyer may want to bring up the possibility of getting someone with close ties appointed as conservator or guardian.
The committee said that as conditions for taking protective action to safeguard the client's interests under Rule 1.14(b), the lawyer must reasonably believe that the client (1) has diminished capacity; (2) is at risk of substantial physical, financial or other harm unless protective action is taken; and (3) cannot adequately act in his own interest.
A lawyer should consult with the client about the nature and extent of any proposed protective action, while respecting the client's values and desires and trying to help the client understand the need for the contemplated steps, the committee said.
One step the opinion suggests is for the attorney to involve persons such as trusted family members whose interests are congruent with the client's interests and may be able to help the client make decisions.
The lawyer should take care to avoid an unintended waiver of the attorney-client privilege, but some authorities indicate that the privilege is not waived when confidences are revealed to a person whose participation is necessary to facilitate the representation, the committee said, citing Comment  to Rule 1.14 and Section 70 of the Restatement (Third) of the Law Governing Lawyers (2000).
In addition, the committee said, the lawyer should learn about, and be prepared to advise the client about, social services or support groups that may be able to assist the client in making decisions on matters within their areas of service.
The committee said that if the impairment is severe and there is no less drastic alternative, the attorney may seek the appointment of a guardian to protect the client's interests. But the lawyer herself should not ask to be appointed as the client's guardian except in the most exigent circumstances, and even then only on a temporary basis, it said.
Moreover, “the lawyer should not represent a third party petitioning for the appointment of a guardian for the lawyer’s client,” the opinion states.
The committee noted that according to Rule 1.14(c), a lawyer is implicitly authorized under Rule 1.6(a) to reveal information about the representation, “but only to the extent reasonably necessary to protect the client's interests.”
Before doing so, it said, the lawyer should seek the client's informed consent, explaining the information to be disclosed and the lawyer's reasons for seeking permission to make the disclosure. If the client refuses consent, the lawyer should respect the client's objections and make reasonable efforts to assuage the client's concerns, it said.
In addition, the panel said the lawyer must take care that the information being disclosed to someone else will not wind up being used against the client's interests. The lawyer must assess whether the third parties have conflicting interests that might lead to further disclosure or adverse use of the information, it said.
“The lawyer may wish to consider whether to require confidentiality agreements or similar commitments, or the lawyer’s written consent to further disclosure” before disclosing information to someone else, the panel suggested.
The committee also said that if an attorney takes protective action over the client's objections, the lawyer should be especially cautious about disclosing information because the law of agency dictates that an agent's implied authority terminates when it is expressly withdrawn or terminated by the principal.
The committee noted the possibility that disagreements between a lawyer and client over proposed disclosures or protective action might create a conflict requiring the lawyer's withdrawal under Rule 1.7(a)(2) (precluding representation that will be materially limited by lawyer's personal interest) in combination with Rule 1.16(a) (representation must end if its continuation would violate professional conduct rule).
In particular, the panel said, if the lawyer seeks protective action contrary to the client's directions, “then the lawyer’s interests are probably adverse to those of the client, and the lawyer cannot represent the client in the protective proceedings—and possibly not thereafter in the underlying representation.”
The committee pointed out, however, that withdrawal may leave the client unrepresented at a crucial time or even without counsel at all if the client lacks capacity to form a client-lawyer relationship with a new attorney. The lawyer should consider these potential impacts prior to seeking the protective action that will engender them, it said.
If the client is going to be left without effective representation, the lawyer may consider petitioning for appointment of a guardian ad litem, the panel suggested.
The committee also noted that disagreements between the lawyer and client may lead the client to fire the lawyer, implicating Rule 1.16(a)(3) (representation may not continue after client has discharged lawyer).
However, Comment  to Rule 1.16 notes that a client with severely diminished capacity may lack the legal capacity to discharge the lawyer. The comment suggests that in such a case the lawyer should make special efforts to help the client consider the consequences and may take reasonably necessary protective action as provided in Rule 1.14.
The committee also pointed out that Comment  to Rule 1.2 (allocation of authority between lawyer and client) says that when a client appears to have diminished capacity, the lawyer's duty to abide by the client's decisions is to be guided by Rule 1.14.
Thus, a lawyer who is fired should consider whether the client has the capacity to make adequately considered decisions about the representation and whether protective action is needed to prevent substantial harm to the client, it said.
Copyright 2015, the American Bar Association and The Bureau of National Affairs, Inc. All Rights Reserved.
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