Ethics Counsel on www.OKbar.org

Representing Disabled Clients

By Gina Hendryx, OBA Ethics Counsel

The adopted changes to the Oklahoma Rules of Professional Conduct include expanded options for the lawyer representing a client with diminished capacity or under a disability. Rule 1.14 now includes lesser restrictive alternatives to seeking a guardianship when the client lacks the capacity to assist in the lawyer-client relationship.

Rule 1.14. Client 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.

The Comment to Rule 1.14 states that “the normal client-lawyer relationship is based on the assumption that the client, when properly advised and assisted, is capable of making decisions about important matters.” A client’s capacity may be diminished due to illness, senility, minority, addiction, medication or a host of other causes. The lawyer should, as much as is reasonably possible, maintain a normal lawyer-client relationship with the impaired client. The lawyer has an increased duty to communicate with the impaired client so that the client can make informed decisions as to the scope and objectives of the representation. The same special duty to communicate arises when deafness or linguistic differences impede client decisionmaking. See, e.g. People ex rel. Myers v. Briggs, 263 NE2d 109. In Nebraska Bar Association v. Walsh, 294 NW2d 873, a lawyer was disciplined for failure to communicate fully with deaf client so that client could make an informed decision as to whether to file an appeal.

However, when the client has diminished mental capacity, maintaining the normal lawyer-client relationship may be difficult, if not impossible, in some respects. Prior to the adoption of rule changes, lawyers in Oklahoma were limited to seeking the appointment of a guardian when faced with a client under a disability. Initiation of guardianship proceedings often pitted attorney against client and necessitated the revelation of lawyer-client confidential communications. Rule 1.14 (b) now permits the lawyer to seek reasonably necessary protective action including the less restrictive alternatives of consulting with “individuals or entities that have the ability to take action to protect the client...”.

Many times the issue is concern that someone is taking financial advantage of an elderly or infirm client. Lawyers are reticent to seek the formality of a guardianship based on such suspicions, but were prohibited from voicing their concerns to family members or government agencies. With the adoption of the rule changes, lawyers may now investigate further and seek the assistance of family members, physicians and/or agencies such as Adult Protective Services. When taking protective action pursuant to Rule 1.14 (b), the lawyer should only reveal information about the client to the extent reasonably necessary to protect the client’s interests. Rule 1.14 (c).

Rule 1.14(b) permits the lawyer to seek appointment of a guardian to protect the client’s interests if there is no less drastic alternative. One option the lawyer should consider is a guardian ad litem or a guardian for the purposes of the litigation only. This is less severe than seeking a guardianship over a person and his/her property. The guardian only advises on matters of the litigation and may be discharged at the end of the legal matter.

Whether to seek a guardianship or the appointment of a guardian ad litem should be a considered decision after consultation with the client, the client’s family members, physicians and/or trusted friends.

Have an ethics question? It’s a member benefit, and all inquiries are confidential. Contact Ms. Hendryx at ginah@okbar.org or (405) 416-7083; (800) 522-8065.

Originally published in the Oklahoma Bar Journal -- Apr.12, 2008 -- Vol. 79; No. 10.