chevron-down Created with Sketch Beta.
July 16, 2023

Maryland’s Major Rethinking of Model Rule 1.14

Charles P. Sabatino

The full issue, in which this article as well as any footnotes and endnotes appears, can be found here.

You’ve been appointed to represent Mr. Jones, an older man who is the respondent in a guardianship case.  His adult son is the petitioner who believes his father, who has been living alone for the last 10 years, is no longer able to live independently and manage his own affairs.  As you patiently interview your client, you learn of two worrisome incidents that the petitioner and court do not even know about.  Mr. Jones made two substantial transfers of money as a victim of an obvious sweetheart scam.  Relying on Model Rule 1.14(b) and (c), you believe that an appropriate protective action is to inform the plaintiff’s son of the incidents since your own assessment of Mr. Jones convinces you that he really does need a guardian.

Whether you feel the lawyer’s action is ethically justified or ethically reprehensible, the truth is that Model Rule 1.14 does not clearly tell you.  Take a moment to revisit the Model Rule:

Rule 1.14.  Client with Diminished Capacity

(a) 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.

(b) When the lawyer reasonably believes that the client has diminished capacity, is at risk of substantial physical, financial or other harm unless action is taken and cannot adequately act in the client's own interest, the lawyer may take reasonably necessary protective action, including consulting with individuals or entities that have the ability to take action to protect the client and, in appropriate cases, seeking the appointment of a guardian ad litem, conservator or guardian.

(c) Information relating to the representation of a client with diminished capacity is protected by Rule 1.6. When taking protective action pursuant to paragraph (b), the lawyer is impliedly authorized under Rule 1.6(a) to reveal information about the client, but only to the extent reasonably necessary to protect the client's interests.

The Maryland Courts version of Rule 1.14 was essentially identical to this and cited as Md. Rules 19-301.14.  The above scenario was one of a few patterns of representation that led the Court to take a serious look at possible changes to the rule to lend greater clarity to the lawyer’s role as advocate.  A working group led by Hon. Patrick L. Woodward, Chief Judge of the Appellate Court of Maryland (Ret.) led the working group which had three goals:

  1. to update the rule to be consistent with current best practice and most recent science and literature around capacities and decisional supports and accommodations;
  2. to address the misuse of the rule by practitioners to the disadvantage of the legal rights of clients; and
  3. to provide additional guidance to attorneys whose clients may have diminished capacity, including representation that is based on each client’s abilities, the availability of supports or accommodations, and a focus on context rather than an actual or suspected diagnosis.

I had the opportunity to serve periodically as a consultant to the group as it proceeded and will describe here five targeted issues of concern that resulted in adopted changes to the Rule and Comments.  The changes described here are not exhaustive but address what I see as the most fundamental concerns.  The final version was approved by the Maryland Supreme Court on March 23, 2023, and became effective July 1, 2023.  The Rule and Comments changes and their explanations can be found at  The changes offer a useful model for other state courts and for consideration by the American Bar Association in reexamining the Model Rule itself.

Issue 1. What is Diminished Capacity?

The most fundamental issue posed by the Rule was the meaning of “diminished capacity.”  It is used or referred to a dozen times in the Rule and Comment, and while Comment 6 offers some factors lawyers should consider in determining the extent of the client's diminished capacity, nowhere is the term defined in the Model Rules.

The first amendment adopted adds a definition rooted in concepts from the Uniform Guardianship, Conservatorship, and Other Protective Arrangements Act as well as relevant sources in the legal and cognitive literature.  Since it is a definition, it was added to the Terminology Rule, 1.0 as follows:

“Diminished capacity” means a decreased ability to receive and understand information, evaluate that information, or make or communicate decisions, even with appropriate supports or accommodations, whether because of minority, mental impairment, or some other reason.

Issue 2. The Implied Prioritizing of Guardianship

A core source of Rule 1.14 ambiguity is subpart (b)’s enormous grant of discretion given to lawyers to take “reasonably necessary protective action” even to the point of “seeking the appointment of a guardian ad litem, conservator or guardian” if the criteria for protective action set forth in 1.14(b) are met.

The express inclusion of guardianship as a protective action in the text of the Rule tends to give it priority and legitimacy over other possible steps a lawyer may take to protect the client that are suggested in Comment 5.  It also poses the most direct conflict of interest for lawyers, compared to any other protective action, since a guardianship proceeding is, at heart, adversarial litigation.  Today, new and creative alternatives to guardianship, such as supported decision-making, are evolving; and guardianship reform efforts repeatedly emphasize that guardianship is a last resort.  Yet, guardianship, especially full or plenary guardianship, is still overused as a solution to concerns about diminished capacity.

The Maryland working group concluded that examples of protective action are appropriately left to the Comment, since any listing of a protective action in the black letter of the Rule gives it implied priority. Thus, the revision of subpart (b) states simply that “…the lawyer may take reasonably necessary protective action to address those risks.”  The series of examples is deleted from the rest of this sentence and left to Comment 5 for discussion.

To expand and update the discussion of protective actions, the amendments add several explicit references to highlight the importance of pursuing appropriate supports and accommodations, first in the definition of “Diminished Capacity” set forth above as well as in the Comment to the Definition which states:

In some cases, a decreased ability may be alleviated or eliminated by the use of supports and accommodations that maximize the ability to make, communicate, or effectuate the client’s own decisions.  Examples of supports and accommodations include effective communication devices or services, using assistance of appropriate third parties, providing an environment supportive of the client’s abilities, and modifying the attorney’s communication and counseling technique with the client.

Encouragement to consider the use of “supports” or “supported decision-making” also occurs in six other places in the revised Comments.

Issue 3. Attorney reluctance to represent an individual under a guardianship.

The existing Comment 4 to Rule 1.14 states:

If a legal representative has already been appointed for the client, the attorney should ordinarily look to the representative for decision on behalf of the client.

The authority of an individual’s appointed representative has always posed a conundrum for lawyers when representation is sought by the individual without the consent of the representative.   In the case of an individual under a guardianship, the answer to that problem determines whether the individual can obtain counsel to terminate or modify the guardianship.  Prof. Nina Kohn has forcefully outlined the constitutional and other grounds for affording people under guardianship the right retain representation to challenge the terms of their guardianship as well as to exercise certain other rights. The Maryland Rule adds new guidance in two places to clarify and strengthen access to counsel.

First in Comment 2, the underlined language was added:

If an individual has a legal representative, such as a guardian, attorney in fact, or court-appointed attorney, the individual is not precluded from consulting with or retaining independent counsel to remove or modify the powers of that legal representative.

Secondly, in Comment 4, immediately after the admonition to look to the representative for decision on behalf of the client, the new language provides a clearer pathway for attorneys to take on representation to challenge or modify the guardianship or to pursue other legal rights:

However, 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, the attorney must respect and advocate for the client's position. For example, an individual under guardianship retains the right to challenge or modify the terms of the individual’s guardianship.

Issue 4. How to ensure client’s voice is not unduly influenced or restricted by 3rd parties

Lawyers who commonly advise older clients or persons with disabilities know that the client is often accompanied by family members or caregivers who normally provide helpful support.  Existing Comment 3 to the Model Rule acknowledges this stating:

The client may wish to have family members or other persons participate in discussions with the lawyer. When necessary to assist in the representation, the presence of such persons generally does not affect the applicability of the attorney-client evidentiary privilege. Nevertheless, the lawyer must keep the client's interests foremost and, except for protective action authorized under paragraph (b), must look to the client, and not family members, to make decisions on the client's behalf.

The directive to look to the client to make decisions is sound in principle, but it overlooks the complex decision-making dynamic by one who is dependent, in whole or in part, on a third party.  Recognizing this, the Court added a simple, but essential, best practice step to Comment 3:

The attorney should afford the client the opportunity to communicate privately with the attorney without the presence and influence of others.

This best practice is drawn in part from aspirational standards promulgated by the National Academy of Elder Law Attorneys which since 2004 have advised that a lawyer:

Meets with the prospective client in private at the earliest practicable time to help the attorney identify the client and assess the prospective client’s capacity and wishes as well as the presence of any undue influence.

Issue 5. Less than zealous representation of respondent in guardianship proceeding.

Existing Rule 1.14(c) states: “When taking protective action pursuant to paragraph (b), the lawyer is impliedly authorized under Rule 1.6(a) to reveal information about the client, but only to the extent reasonably necessary to protect the client's interests.”  While the rule on its face represents a reasonable balancing of confidentiality and protection, court experience in Maryland revealed a bias on the part of some attorneys representing respondents in guardianship proceedings towards relying on the rule to disclose information to the petitioner and/or court supporting need for guardianship where, in the respondent’s attorney’s judgment, it is necessary to protect the client’s interests.  In the context of guardianship litigation, such disclosures undermine the role boundaries of the parties.  The petitioner bears the burden of proof to establish incapacity, and the respondent’s attorney’s role is to represent the expressed position of the client and, essentially, hold the petitioner’s feet to the fire – that is, not help the petitioner meet their burden of proof.

To clarify the respondent’s lawyer’s role, three changes were made.  First, Comment 5, which addresses protective actions, includes the following new language:

In litigation involving the capacity of the client, such as a guardianship proceeding, the attorney should advocate for the client’s expressed position when deciding what, if any, protective action should be taken.

Second, the first sentence of Comment 7 includes the underlined language below to expressly exclude guardianship cases from those situations in which it may be appropriate for an attorney to consider the appointment of a guardian for the attorney’s client:

Except for cases where the attorney represents a minor or alleged disabled person in a guardianship proceeding, if a legal representative has not been appointed, the attorney should consider whether appointment of a guardian ad litem, conservator or guardian is necessary to protect the client's interests.

Third, Comment 8 which directly addresses disclosure of client’s condition, is revised to add the underlined language:

Disclosure of the client's diminished capacity could adversely affect the client's interests, which may include constitutional and legal rights.

The addition serves as a relatively soft reminder that “constitutional and Legal rights” are not just theoretical, but rather they should always remain paramount variables in the weighing of the need for disclosure as a protective action.

The five issues addressed here elude straight forward cookbook instructions.  But, the changes to Model Rule 1.14 adopted by the Maryland Supreme Court provide a model for improving the clarity of guidance provided by the Rule to strengthen the advocacy role of lawyers on behalf of persons with diminished capacity. 

In the example given at the outset of this article involving Mr. Jones, the Rule changes in Maryland make clear that the respondent’s attorney is not ethically justified in revealing information about the sweetheart scam.  This is not to say that the attorney must do everything possible to obstruct access to the information.  There are likely other ways the plaintiff may learn about the incidents.  It is the plaintiff’s burden to make the case for guardianship without the respondent’s attorney’s help. 

To carry out the spirit and intent of these Rule changes, lawyers ultimately need sufficient education in brain science, legal knowledge, sound judgement and discretion, and a full appreciation of the rules of professional ethics. Greater clarity is needed in Model Rule 1.14 to assist lawyers in the ethical representation of their clients. Ethical behavior in representing individuals with diminished capacity is not for the faint of heart, and individual liberty in the face of disability is never to be easily compromised.

    The material in all ABA publications is copyrighted and may be reprinted by permission only. Request reprint permission here.