An aging population has triggered a national dialogue about every thing from saving Social Security and Medicare to providing long-term care under the Affordable Health Care for America Act. Not surprisingly, America’s demographic shift to an older population has ethics implications for lawyers who deal with aging clients and aging partners.
Lawyers dealing with clients who seem to be “slipping” can turn for guidance to ABA Model Rule 1.14 (“Client with Diminished Capacity”), and ABA Legal Ethics Opinion (LEO) 96‑404 (8/2/1996).
Under ABA Model Rule 1.14(a), lawyers dealing with a client who seems to be losing capacity must strive to maintain a normal attorney‑client relationship “as far as reasonably possible.” In other words, lawyers should not overreact to clients’ occasional memory lapses or questionable decisions. Interestingly, ABA LEO 404 warns that lawyers tempted to avoid dealing with the issue by withdrawing from the representation of an aging client may withdraw only if the lawyer can do so “without material adverse effect on the interests of the client” under ABA Model Rule 1.16(b).