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Litigation News

Litigation News | 2022

Expanded Ethical Obligations for Diminished-Capacity Clients

Anna Katherine Tsiotsias


  • Lawyers have heightened obligations when representing clients with diminished capacity, requiring them to adapt their approach to protect the client from harm.
  • Practitioners should strive to maintain a "normal" client relationship with the incapacitated client as far as possible, allowing the client to make decisions while implementing practices to support their decision-making abilities.
  • To protect clients with diminished capacity, lawyers may need to make difficult decisions and seek guidance from professionals.
Expanded Ethical Obligations for Diminished-Capacity Clients
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As millions of baby boomers age, questions about legal incapacity are gaining increased attention from ethics authorities. A recent state ethics opinion emphasizes the need for lawyers to treat clients with diminished capacity with heightened care. The opinion suggests that when dealing with a diminished capacity client, lawyers should endeavor to obtain a client’s advanced consent to disclose confidential information and take other appropriate measures to protect the incapacitated client from harm.

Opinion Illustrates Lawyer’s Obligations to Client with Diminished Capacity

According to Formal Opinion No. 2021-207, an ethics opinion issued by The State Bar of California’s Standing Committee on Professional Responsibility and Conduct, lawyers have heightened obligations when representing clients with diminished capacity.

The opinion emphasizes that a client with diminished capacity may not have the ability to make informed decisions about his or her legal representation. With such clients, the committee explains that a lawyer’s many ethical duties do not change, but that the client’s reduced capacity may require the lawyer to change how the lawyer fulfills those duties. The committee identified two principles of “particular importance” to guide a lawyer’s representation of a client with diminished capacity.

First, the lawyer must maintain a “normal” client relationship with the incapacitated client “as far as reasonably possible.” This means that to the extent feasible, the lawyer should continue to let the client makes decisions that are typically made by clients, like the scope of representation. The standing committee explained that adhering to this principle, however, may require the lawyer to implement practices designed to foster a client’s ability to make his or her own decisions. For example, the lawyer may need to change his or her communication style by speaking slower or communicating with the client only in writing.

Second, the lawyer must recognize that representing a client with diminished capacity may require the lawyer to make “difficult decisions” in situations of factual or legal uncertainty. For example, there may be a dearth of authority construing a state’s limited capacity statute. Or there may be uncertainties about the prognosis of a medical condition, the reliability of those claiming to speak for a client’s interests, or the severity and imminence of harm. These and similar situations may require a lawyer to make “an informed professional judgment in choosing among . . . imperfect alternatives,” such as enlisting the assistance of a family member, associating with counsel experienced with questions of capacity, or involving a medical professional when making decisions impacting the client.

Lawyers Must Act to Protect Clients with Diminished Capacity

A lawyer’s ethical obligations may require the lawyer to take affirmative action when a client shows signs of diminished capacity, the opinion explains. According to the standing committee, this action may include making subjective judgments about the client’s capacity, consulting with medical or other professionals, or considering whether the Americans with Disabilities Act or other similar laws require accommodations for the client.

Before taking such action, ABA Litigation Section leaders caution that one of the biggest risks to lawyers in these situations is making the capacity determination alone. Diminished capacity can take many forms. Alzheimer’s disease, dementia, signs of advancing age, and head trauma are examples of diminished capacity. “Reliance on pain killers or drug use, generally, might also present a case of diminished capacity,” explains John M. Barkett, Miami, FL, former cochair of the Litigation Section’s Ethics & Professionalism Committee. “Mental health is also an important consideration” when considering a client’s decision-making ability, comments Tiffany Rowe, Washington, DC, cochair of the Section’s Professional Liability Litigation Committee. The legal profession’s “increasing focus on mental health has raised awareness and is bringing this to the forefront,” Rowe adds. 

Because of the various symptoms and causes of diminished capacity, lawyers should take care “not to overstep, even when having the best intentions,” Rowe continues. This is in part why the standing committee suggests that a lawyer consult with other counsel experienced in diminished capacity representations. 

Advanced Consent Can Protect Lawyer and Client

A client’s informed consent is necessary for almost all actions by a lawyer, the committee notes. As a client’s capacity diminishes, though, so too may the client’s ability to provide consent. That is why a lawyer may want to obtain a client’s advanced consent to disclose confidential information, such as to a doctor or family member, for assistance.

There also are important limitations on this consent. The committee explains that the consent must be informed within the meaning of the Rules of Professional Conduct, in that Rule 1.0.1(e) requires that a lawyer has communicated: “(i) the relevant circumstances and (ii) the material risks, including any actual and reasonably foreseeable adverse consequences of the proposed course of conduct.” The consent also must be revocable at any time, assuming the client has the capacity to revoke in the future. Additionally, if advanced consent is necessary, Section leaders suggest getting such consent in writing or on video. An oral advanced waiver is “strongly discouraged,” counsels Barkett, especially one “without witnesses present or that was not recorded by video.”