June 01, 2015

The Ethical Dilemmas of Diminished Capacity: Rule 1.14 of the Model Rules of Professional Conduct

Michael A. Kirtland

The Model Rules of Professional Conduct (MRPC) seem to make it simple and clear as to what to do if you believe your client has diminished capacity. As much as possible, maintain a normal attorney-client relationship. If the client is suffering diminished capacity, you as the lawyer may take “reasonably necessary” protective action, including consulting with others and seeking guardianship or conservatorship. Use otherwise privileged client information to protect the client’s interests.

Simple enough. Except that it often doesn’t help in the real world. There are too many possible entry positions.

Model Rule 1.14: Representing Clients 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.

Type of Client

Is an individual the client? Is a corporation the client? Are you, as the lawyer, simply working with the person you suspect of having diminished capacity only as a corporate agent or officer? Is the client acting in a fiduciary capacity for another person or entity? The different possibilities will dictate your potential courses of action.

Type of Case

But it is not just the traditional question of “who is the client?” that will be important. The type of case will also dictate your options—and potentially limit them as well. Each type of case has options, but regardless of the options, each has a drawback in terms of potential negative results for your client.

In the criminal setting, you may have the least leeway. Your only option may be to inform the judge of your problem via an ex parte motion or request for in camera examination. But might you in fact only be providing information to the prosecution that could defeat your defense, even without revealing details, simply because you made the request?

In the business setting, because the corporation is your actual client, logically you might inform the corporation’s officers. But have you just cost the individual you are working with his or her job? What about the transactional setting? Are you providing the other party the opportunity to withdraw from the transaction?

In the domestic relations setting, have you provided ammunition to the spouse and significantly harmed the client’s position in the divorce? If you attempt to communicate with family members such as adult children, have you simply provided information that may reignite long-standing family dysfunction that is unknown to you?

The Presumption of Capacity

As the attorney, you must take some course of action, even if only to attempt to follow the mandate of Rule 1.14(a). Start with a basic presumption: any adult is presumed to have legal capacity unless adjudicated otherwise by a court of competent jurisdiction. Hence the MRPC position that the lawyer shall maintain as much as possible a normal attorney-client relationship. The provision of part (a) of Rule 1.14 requiring the attorney to maintain as “normal” an attorney-client relationship as possible is mandatory. The provisions of part (b), however, are discretionary. The lawyer may take reasonably necessary protective actions. But the lawyer does not have to act, presuming the lawyer reasonably believes he or she can maintain some semblance of a normal attorney-client relationship. To act, the attorney simply must “reasonably believe” that the client has diminished capacity.

Double-Talk

Here the Rule enters the land of double-talk. The definition of “reasonable belief” under the MRPC is that the lawyer must honestly infer that the belief is reasonable. Classic double-talk. While it is highly unlikely that a state’s attorney disciplinary office would prosecute the attorney for lack of reasonable belief unless it was so blatant that no such reasonable belief existed, this section of Rule 1.14(a) provides no real useful guidance for the attorney struggling to do the right thing.

The Rule leaves the burden on the attorney to determine whether the client suffers from diminished capacity, and to what extent. Most lawyers do not have professional training in psychology that would allow them to determine the capacity of a client. The result is that most lawyers must rely on a gut reaction to the capacity of the client. But even here, the capacity of a client is a sliding scale. At one end, where the attorney is drafting a will, the attorney faces the lowest standard for capacity: testamentary capacity. Clients must simply understand that they are making a will, what their assets are in general terms, and who are the “natural heirs of their bounty.” Where the legal work is more complex, the attorney faces contractual capacity. That is, the attorney must believe the client understands that he or she is entering into a contract, the import of the contract, and its effects on the client or the client’s business. The more complex the transaction (or litigation) or the greater the complexity of any matter, the more understanding the client must have.

Consulting with Other Professionals—And One’s Intuition

The Rule and its comments do permit the attorney to consult with other professionals to aid in determining whether the client has diminished capacity. So long as the attorney consults with other professionals in such a way that revelation of client confidences are limited to that information necessary to aid in the determination of diminished capacity and to select an appropriate course of action, Rule 1.14 permits the attorney to make such revelation without otherwise violating Rule 1.6. Rule 1.14(c) says the attorney is “impliedly authorized” to reveal client confidences, but only to the extent necessary to protect the client. It is not a license to reveal everything about the case to others.

Different authors have considered the subject of assessing diminished capacity in a client. The most common method is the basic, intuitive reaction of the attorney to the client, the one that is based on an innate sense of, “does this client know what he or she is doing?” If the attorney is satisfied, he or she may proceed with the representation. If there is a question concerning capacity, the lawyer may be able to refer the client to a psychological professional for formal assessment. To do this, the attorney must obtain the client’s consent. This may be difficult to obtain, as it is a natural reaction when confronted to deny any lack of capacity. The attorney should, however, recognize that referral to mental health professionals may by itself bring into question the capacity of the client. Generally, an evaluation by a mental health professional will protect the client and the attorney’s representation. But the attorney should expect a challenge as to why he or she made the referral in the first place. Increasingly, the trend is toward formal or informal assessment of the client, if for no other reason than for protection against a malpractice claim.

Comment 6 to Rule 1.14 states:

In determining the extent of the client’s diminished capacity, the lawyer should consider and balance such factors as: the client’s ability to articulate reasoning leading to a decision; variability of state of mind and ability to appreciate consequences of a decision; the substantive fairness of a decision; and the consistency of a decision with the known long-term commitments and values of the client. In appropriate circumstances, the lawyer may seek guidance from an appropriate diagnostician.

No guidance is provided on how the attorney is to provide such analysis. The jointly authored ABA/American Psychological Association pamphlet Assessment of Older Adults with Diminished Capacity: A Handbook for Lawyers recommends that the attorney not attempt to conduct formal assessments such as the Mini-Mental Status Examination (MMSE), even though this is a basic, preliminary tool with mental health professionals.

The Gray Area

Some cases are obvious, and the attorney should take action, even if it is only to withdraw because the attorney cannot develop an attorney-client relationship. It is the gray in the middle that causes problems and questions. Part (b) of the Rule permits the attorney to seek appointment of a guardian ad litem or conduct some other protective proceeding. It also permits the attorney to contact appropriate other persons, presumably including the spouse, family, employer, or others.

Assuming the attorney believes that a formal request for a guardian ad litem, conservator, or guardian is necessary, a whole host of problems develop. The attorney may only reveal sufficient information to support an initial petition for protective proceedings. At that point, the attorney becomes adverse to the client and can no longer represent the client, leaving the client abandoned, pro se, and exposed to a myriad of representation problems. If the representation was originally for estate planning, the planning may have to be abandoned, possibly leaving the client in a worse position, or certainly one not in tune with the supposed intent of the client. If the representation was for a litigated purpose, the client is abandoned and may suffer significant negative consequences as a result of the attorney’s petition for a protective proceeding. It is highly unlikely that the client would be able to continue complex litigation without legal representation. Yet, if the attorney’s analysis that the client lacks capacity is correct, the client may be unable to develop an attorney-client relationship with new counsel. In any event, the attorney can no longer represent the client. In the clean world of the MRPC, Rule 1.14 may seem to provide guidance to the attorney. In the real world, it leaves the attorney with little practical guidance.

Because petitioning for protective proceedings brings so many potential negative consequences, the better course of action is to request a guardian ad litem, placing the burden on the guardian ad litem to determine whether or not protective proceedings are warranted. However, once the attorney requests the guardian ad litem, the attorney can no longer provide assistance to the guardian ad litem, as the attorney continues to be subject to the confidentiality requirements of Rule 1.6.

The Problem of Privilege

Regardless of the circumstances, if a protective proceeding is sought by the attorney, not only must the attorney withdraw from representation as adverse to the client, but the attorney may not represent the petitioner for the protective proceeding. Nor may he or she testify in the protective proceedings. All information gained as a result of the original representation remains subject to attorney-client privilege, including the attorney’s impressions of the mental capacity of the client. As only the client can waive that privilege, if the attorney believes the client lacks capacity, no one exists who can waive the privilege.

Despite such difficult ethical and practical dilemmas, relatively little guidance exists to aid the attorney in determining a course of action. While the ABA has published Ethics Opinion 96-404, and a few other states (Oregon, Kansas, and Pennsylvania) have commented on the subject in formal ethics opinions, most “guidance” on the subject has come in the form of hindsight in disciplinary opinions. Colorado this year published Formal Opinion 126 on representing a client with diminished capacity. This opinion is limited to the situation where the attorney’s representation of the client is not the result of the diminished capacity of the client, but, rather, is discovered incidentally in representation of the client in some other matter. The reader would be well advised to consider this formal opinion. The Colorado Bar Association’s Ethics Committee is currently undertaking the drafting of a separate opinion concerning representation of a client with diminished capacity when the purpose of the representation is the client’s diminished capacity, such as would be the case in a protective proceeding.

Conclusion: Develop a Network

As the American population ages, we as lawyers are likely to see more and more instances in which we discover that our clients have some degree of diminished capacity during the course of the representation. Developing a network of professionals who can assist the attorney in providing guidance on how to deal with such situations is highly recommended. The attorney should become aware of other professionals with expertise in this area—and not just psychological professionals, but other attorneys who practice in the areas of elder law, protective proceedings, and similar representations. This problem of increasingly needing to represent clients with diminished capacity is not going away, and charting a path that will enable us to protect ourselves as attorneys and to protect our clients’ interests is essential in today’s legal environment.

Michael A. Kirtland

Michael A. Kirtland, LLM, CELA, is managing partner of Kirtland & Seal, LLC, in Colorado. He is one of only 10 certified elder law attorneys in that state. He serves as deputy public administrator for the Fourth Judicial District of Colorado and is a past chair of the Elder Law Group of the ABA’s Real Property, Trust and Estate Law Section. He is currently a member of the Senior Lawyers Division Council.