Blog Post

Basic Ethics of Representing Clients with Diminished Capacity

          Representing clients with diminished capacity can present a challenge for even the most experienced attorney, and every client and every matter is different.  Minors of the same age may have vastly different maturity levels and clients suffering from dementia may have varying symptoms and abilities to recall information or make informed decisions. For example, a fourteen-year-old may not be able to legally enter into a contract, but he or she is likely capable of making decisions and expressing opinions regarding with which parent he or she would like to live.  In scenarios involving memory loss, a client may exhibit mental impairment one day and be quite lucid the next. Lawyers must employ reasonableness and discretion when tasked with representing such clients.


          Rule 1.14 of the Rules of Professional Conduct provides the ethical standard for attorneys who represent clients with diminished capacity.  An important consideration is reasonableness.  When a client has diminished capacity, attorneys should try maintaining a normal client-lawyer relationship to the extent that it is reasonable to do so.  Just as there are several different forms of diminished capacity, there are also varying degrees of the same.


          In determining the extent of a client’s capacity, lawyers should consider a set of balancing factors: the ability of the client to articulate his or her reasoning, the variability of the client’s state of mind and appreciation of the consequences of his or her decisions, the substantive fairness of the client’s decision, and the impact the client’s decision will have on long-term commitments and the client’s values.  There may be other factors, and lawyers must consider and weigh all of them in light of each situation.


          Rule 1.14 permits lawyers to take “necessary protective action.”  Such protective actions can include consulting with family members or professional services, drafting Powers of Attorney, or asking the court to appoint a Guardian Ad Litem to protect the client’s interests. Again, an attorney must exercise discretion and take only reasonable action.


          Some situations warrant legal intervention, but only in a narrow set of circumstances and in a limited number of ways.  The Rules allow attorneys to act in an emergency if there is “imminent and irreparable harm” that would occur without intervention.  Attorneys should refrain from involvement if they reasonably believe another lawyer, agent, or representative of the client is willing and able to act.  If attorneys decide to take protective action, then they should only take action to the extent reasonably necessary to maintain the status quo.  This rule does not provide carte blanche for attorneys to take over all decision making power for the client indefinitely.  If such incapacity is an ongoing concern, attorneys should seek the involvement of a Guardian Ad Litem who can better protect the interests of his or her client.


          Finally, when representing a client with diminished capacity, it may be permissible to reveal information about that client despite Rule 1.6, which requires client information to be kept confidential.  In the case of a client with diminished capacity, however, it may be necessary to reveal certain information to protect that client’s interests.  Once again, reasonableness must be employed, and lawyers are only permitted to reveal client information to the extent necessary.  If disclosure is deemed necessary, then lawyers may only disclose the information absolutely necessary and will not negatively affect their client.  In considering to whom the information should be disclosed, attorneys should consider whether that person will act adversely to a client’s interest.


          In representing clients with diminished capacity, lawyers must take a great many factors into account and weigh them individually, within the context of the situation.  They must consider the type and extent of the client’s capacity and maintain a normal client-lawyer relationship as reasonably as possible.  If warranted, they are only allowed to take those steps necessary to protecting a client’s interests, and if it is necessary to disclose client information, they are limited as to the extent of information and to whom they disclose the information.  No two clients with diminished capacity are the same, and each must be considered on a case-by-case basis with reasonableness at the forefront of every attorneys mind.


For more information on diminished capacity and incompetency, please click here.