December 04, 2014

Who is the client, and other questions in dealing with diminished capacity

What do you do when you suspect a client suffers from diminished capacity? When can you seek outside guidance to help a client with diminished capacity? What can you say to whom without violating the duty of confidentiality to the client?

Difficult questions all, and the ABA Commission on Law and Aging offered guidance with its revealing webinar, “Ethical Issues of Representing a Client with Diminished Capacity.” 

Representing a client with diminished capacity entails several competing ethical considerations:

 

  • How to maintain a "normal" attorney-client relationship with such a client

  • How to determine when a lawyer may seek decision-making assistance for a client with diminished capacity from a family member or third party without violating the duty of confidentiality

  • How to represent such a client in court

This ethics webinar covered the parameters set out in “Model Rule 1.14 Client With Diminished Capacity,” directing an attorney to maintain a “normal” attorney-client relationship with a client with diminished capacity to the extent possible. It explored how to enter into an attorney-client relationship with a client with less than full capacity, what to do when a client’s capacity declines during representation and how to represent a client with diminished capacity in court.

Rule 1.14 has three parts: (a) on maintaining as normal a relationship as possible with such a client; (b) regarding the lawyer taking necessary protective action in the case of a client whom the lawyer believes to be in danger of harm unless action is taken and (c) on revealing information about the client, but only to the extent necessary to protect the client’s interests.

The faculty members made many of their points using a series of hypothetical situations, such as the client with a major stroke, the helpful friend, the helpful kids, the lawyer as fiduciary and “it’s all in the family.”

“The helpful friend” hypothetical, for example, concerned 81-year-old Mr. Smith and the cashier at a local grocery store. The cashier started bringing Mr. Smith groceries and ended up with his power of attorney. Mr. Smith’s son petitioned the court to review and construe the POA.

Faculty member Kerry R. Peck, managing partner of the Chicago law firm Peck Bloom and co-author of “Alzheimer’s and the Law” (ABA Publishing), said, The representation of a client, or a meeting with a potential client afflicted with diminished capacity, is an increasingly common event, and lawyers are finding themselves facing this situation more often than they anticipate. 

“The statistics on Alzheimer’s are shocking: Currently more than 5 million Americans have Alzheimer’s, and 16 million people are projected to have the disease by 2050. Nearly one in every three seniors who dies has Alzheimer’s or another dementia. Attorneys should be prepared to face the ethical challenges they will inevitably encounter representing cognitively impaired clients to avoid facing disciplinary action.” 

Patricia Banks, faculty member and a judge of the Circuit Court of Cook County, Ill., said, “When an attorney represents a client with diminished capacity, the lines of ethical propriety can quickly become blurred.  Shifting demographics--particularly the ever-increasing population of senior citizens--require lawyers to increase their efforts to remain up to date on the most current laws and rules governing ethical conduct.  The ethics of representing clients with diminished or diminishing capacity is a specialized topic that includes complex details and nuances.”

During her presentation, Judge Banks addressed what judicial action may be taken when a judge observes that an attorney in his courtroom has breached or is about to breach ethical boundaries while representing a client with diminished capacity. 

“Who is the client?” asked faculty member Rebecca C. Morgan of the Stetson University College of Law in Gulfport, Fla., and author of “Ethics in the Practice of Elder Law” (ABA Publishing). “Who called for the appointment is not necessarily the client.” Peck added, “The decision on who is the client also cannot be economically driven. It can’t just be who is paying the bill. Nobody wants to say no to business, but nobody wants to face disciplinary proceedings, either.”

Moderator and ABA Senior Attorney David Godfrey said, “Sooner or later, every attorney is going to have a client with diminished capacity. The better lawyers understand the complex issues related to such situations, the better they can represent their clients and preserve their clients’ fundamental right to participate in their legal representation. We had three excellent presenters--Judge Banks brought the view from the bench, Kerry Peck provided the perspective of a very active litigator and Professor Morgan added a research and academic dimension. 

“This area has really developed over the past 15 years, with great resources and training in understanding client capacity. One point I always try to make:  Working with a client with diminished capacity starts with the basic understanding that capacity is a spectrum, not an on-and-off switch.”

A tape of the webinar will soon be available for purchase at www.shopaba.org.

And regarding the above hypothetical of Mr. Smith and the friendly grocery cashier, Judge Banks said that, in her courtroom, she would enter injunctive relief, freeze accounts, hear testimony and determine if Mr. Smith had the capacity to enter into a power of attorney agreement.