Representing Clients with Diminished Capacity: Challenges and Opportunities

Increasingly, lawyers in law firms, including those in solo, small firm, and general practice, are likely to encounter clients or potential clients whom American Bar Association Model Rule of Professional Conduct 1.14 describes as having “diminished capacity.” The rule and its explanatory comments raise more questions than they answer. Especially when the reason for the client’s diminished capacity is thought to be based on the client’s disability, lawyers must be careful not to move too quickly to either refuse or decline representation or embrace procedures that minimize the client’s decision-making role. Moreover, lawyers need to be aware of techniques, approaches, and modalities that can make representation of such clients not only possible but also attractive. Disability can matter, but not as often or in the ways one might think.

Diminished Capacity and the Attorney-Client Relationship

Lawyers have legitimate concerns in dealing with potential clients who may not be able to communicate with clarity their positions in the legal matter. Attorneys derive their authority from their clients: If the client cannot act as principal, the lawyer’s status as agent can be called into question. Even in those cases where the lawyer concludes that he or she can establish a client-lawyer relationship with the client, any number of downstream decisions are likely to arise in the legal matter. If the client cannot make or communicate those decisions, the lawyer may be placed in a very difficult position.

Model Rule 1.14 (a) provides that “When a client’s capacity to make adequately considered decisions in connection with a representation is diminished, whether because of minority, mental impairment or for some other reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client.” Rule 1.14 (b) authorizes the lawyer to take “reasonably necessary protective action,” which can include seeking the appointment of a guardian or conservator if the lawyer believes the client may suffer “substantial physical, financial, or other harm” if the client “cannot adequately act” in the client’s own best interest. Model Rule 1.14, which most states have adopted verbatim, does not define diminished capacity, although Comment 6 provides some guidance to help lawyers determine the extent of that diminished capacity, enjoining them to consider such factors as the variability of the client’s state of mind and the client’s ability to articulate reasoning leading to a decision, the substantive fairness of the decision, and the consistency of the decision with the client’s known commitments and values.

These factors are sensible ones, but the Model Rule and Comments do not indicate what weight the lawyer is to give them. Nor do the Rule and Comments define what a “normal client-lawyer relationship” is, other than to imply it is one in which the client can make “legally binding decisions.” Even the concept of “normal” is problematic (and ableist)—a few states have adopted “typical” or “conventional” to describe the kind of legal relationship in which a person with diminished capacity is allegedly incapable of participating.

The Role of Legal Representatives

The Comments send mixed messages when the putative client has a legal representative (i.e., guardian or other type of surrogate decision-maker): The lawyer should treat the person with diminished capacity “with attention and respect” and “as far as possible accord the represented person the status of client.” (Comment 2.) And yet, “the lawyer should ordinarily look to the representative for decisions on behalf of the client.” (Comment 4.) Conflicts between the client and the client’s guardian can certainly arise, in which case the lawyer must choose between following the lead of the legal representative or the client with diminished capacity whom the lawyer is supposed to accord the status of the client “as far as possible.”

Faced with these kinds of problems, lawyers may be tempted to seek the appointment of a guardian or guardian ad litem, as Model Rule 1.14 (b) permits. But seeking such an appointment can be problematic. Guardianship entails a significant limitation on the potential client’s liberty, in particular, the client’s right to make decisions. Comment 7 to Model Rule 1.14 recognizes this issue, noting that “[i]n many circumstances, however, appointment of a legal representative may be more expensive or traumatic for the client than circumstances in fact require[,]” adding that “[i]n considering alternatives [to such an appointment] . . . the lawyer should be aware of any law that requires the lawyer to advocate the least restrictive action on behalf of the client.” Even if the law does not require consideration, it is a best practice for the lawyer to do so.

Supported Decision-Making

One alternative to guardianship that is gaining increasing acceptance is supported decision-making. In an article published in 2012, I defined supported decision-making as “a series of relationships, practices, arrangements, and agreements, of more or less formality and intensity, designed to assist an individual with a disability to make and communicate to others decisions about the individual’s life.” (Robert D. Dinerstein, Implementing Legal Capacity under Article 12 of the UN Convention of the Rights of Persons with Disabilities: The Difficult Road from Guardianship to Supported Decision-Making, 19 Hum. Rts. Brief 8, 10 (2012).) The person or people providing support are called supporters, while the individual receiving support can be described simply as the individual or the adult (or the supported person). The key element is that, unlike a guardian, the supporter(s) “speak[s] with, rather than for, the individual with a disability.” (Id.) Approximately 20 states have adopted supported decision-making statutes for at least some categories of individuals in their jurisdiction. But clients can engage supporters without the need for a statute, and, under most if not all circumstances, that arrangement would be a less-restrictive alternative to guardianship or other surrogate arrangement. Note that Comment 3 to Model Rule 1.14 provides that, when necessary to assist in the legal representation, the presence of family members or other persons in the discussions between the attorney and the client does not affect the applicability of the attorney-client privilege. One or more supporters could certainly fit within this category of people who might accompany the client without destroying the privilege.

Recent legislative and judicial activity in Maryland reflects the inter-relationship between a supported decision-making statute and lawyers’ ethical obligations. Maryland adopted a supported decision-making statute, effective October 1, 2022, with the purpose of assisting adults in “making, communicating, or effectuating decisions that correspond to the will, preferences and choices of the adult” and preventing the need for appointment of a guardian or other substitute decision-maker. (Md. Code Ann., Est. & Trusts § 18-102(a) (2022).) It also provides for obligations and limitations on the supporter, including that the supporter “may not . . . make decisions on behalf of the adult.” (Id.) Significantly, and similar to other supported decision-making statutes, the Maryland statute holds harmless third parties who act in good-faith reliance on a decision made by an adult using a supported decision-making agreement. Conversely, the statute permits the third party to decline to honor such an adult’s decision if the third party has a reasonable good-faith belief that the supporter coerced or unduly influenced the adult.

At the same time that the supported decision-making statute was being considered, the Maryland Rules Committee proposed, and the Maryland Supreme Court adopted, significant changes to Maryland’s version of Model Rule 1.14 and accompanying comments. (Full disclosure: I provided informal advice to the committee that considered and proposed these changes.) Among other things, Maryland’s revised rule defines diminished capacity (excluding people who can make and communicate decisions with “appropriate supports or accommodations”); directs the attorney who believes the client is struggling with the ability to receive, understand, or process information to consider whether supports and accommodations, which it defines, may alleviate or eliminate the capacity concerns; provides that the client’s use of supports or accommodations does not diminish the lawyer’s obligation to treat the client with attention and respect; requires, notwithstanding that a client has a legal representative, that the lawyer for such a client advocate for the client’s position “where the client retains the right to carry out an act, or the attorney reasonably believes the client has the ability to make certain decisions,” thereby addressing the conflict between Comments 2 and 4 discussed above; and clarifies that in a proceeding involving determination of a client’s capacity, such as a guardianship proceeding, the lawyer should advocate for the client’s expressed position (and not the lawyer’s determination of what is in the client’s best interest). These amendments are by far the most significant variations from Model Rule 1.14 and its Comments to date and the only ones to take into account the availability of supports and accommodations.

The Role of Accommodations

Recognition of the role of accommodations and supports for clients and potential clients is not only consistent with professional responsibility obligations but also is required by Title III of the Americans with Disabilities Act (ADA). Title III provides that “No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.” (42 U.S.C. § 12182 (a).) The statute defines the office of a lawyer as a public accommodation. (42 U.S.C. § 12181(7)(F).) It is discrimination on the basis of disability for a lawyer to “fail . . . to make reasonable modifications in policies, practices or procedures when. . . necessary” unless doing so would fundamentally alter the goods or services provided. (42 U.S.C. § 12182 (b)(2)(A)(ii).) This provision would cover, for example, the lawyer’s need to provide a sign language interpreter to a deaf client or to make sure that the office is accessible to a person who uses a wheelchair. But it also can—and should—be interpreted to require lawyers to make reasonable modifications in their practices when dealing with clients whose capacity they deem to be diminished.

What, then, might such accommodations look like, other than making use of supported decision-making arrangements as discussed above? Without purporting to be exhaustive, such a list could include explaining matters to the client in plain language at a level of comprehension appropriate to the client’s cognitive functioning; scheduling meetings with a client early in the day, and for multiple short periods, to take account of a client with psychosocial disabilities’ or dementia’s variable capacity as the day goes on; using questioning techniques that avoid leading or suggestive questions that might induce a client with intellectual disability to adopt the lawyer’s characterization out of a desire to please the lawyer; and making use of the techniques of the “cognitive interview,” which involve such techniques as helping a client focus on an underlying event, engage in “extensive and varied retrieval,” and use “multiple coding and guiding imagery in remembering events.” (Robert Dinerstein, Interviewing and Counseling Atypical Clients, in Lawyers and Clients: Critical Issues in Interviewing and Counseling (Stephen Ellmann et al. ed., 2009) (internal quotations omitted).) These kinds of techniques are decidedly low cost (as are most reasonable accommodations the ADA requires), although they do require the lawyer to spend more time with this type of client than they might with a non-disabled client with a similar matter.

Capacity and Individuality

Lawyers need to be aware that a client’s capacity is not necessarily fixed—it can vary with a wide range of circumstances and conditions. We know that some people have significant capacity in some areas, and at some times, and not in others. A person with an intellectual disability may have significant limitations in making health care decisions and yet be fully capable of deciding where and with whom he or she wants to live. At the heart of disability anti-discrimination law is the recognition that people are individuals and are entitled to individualized determinations of their strengths and challenges. Moreover, scholars and advocates in the related areas of disability rights, disability justice, and disability studies assert that disability is best understood through the lens of a social model—where disability is seen as the product of the interaction between the person with a disability and that person’s built and attitudinal environment—rather than a medical model, which locates the issue of disability solely within the person, seeing the person as someone to be fixed or healed. We also know that many people with disabilities also have other marginalized identities, and considerations of intersectionality require anyone interacting with them, including lawyers, to be prepared to take into account the complex ways in which these identities relate to and influence each other.

Conclusion

In the end, because disability is a complex and multifaceted identity, lawyers must approach a client with a disability, or one who has diminished capacity, with flexibility and an open heart. Because people with disabilities have been subjected to long-standing practices of segregation and discrimination and continue to experience significant societal stigma, it is especially important that lawyers not shy away from providing them with legal representation but rather embrace the opportunity to provide services to an under-represented and often maligned group. Doing so can be immensely rewarding and can lead us to see that, far from being a problem, representing a client with diminished capacity can be enriching and satisfying.