Lawyers often are called upon to deal with clients who have a diminished capacity. ORPC 1.14(a) defines diminished capacity as:

(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 ...

NORMAL CLIENT-LAWYER RELATIONSHIP

When a lawyer realizes a client has a diminished capacity, the rule requires that “the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client.” Comment [1] seeks to make clear that:

[1] 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.

Colorado Formal Ethics Opinion 126 (2015) describes the lawyer's duty to maintain a normal client-lawyer relationship as precluding “a lawyer from acting solely as an arm of the court, using the lawyer’s assessment of the ‘best interests’ of the client to justify waiving the client’s rights without consultation, divulging the client’s confidences, disregarding the client’s wishes, or presenting evidence against the client.”

A lawyer may seek the advice of others to assess the client's capacity. ABA Formal Ethics Op. 96-404 (1996) suggests, “[t]here may also be circumstances where the lawyer will wish to consult with the client’s family or other interested persons who are in a position to aid in the lawyer’s assessment of the client’s capacity as well as in the decision of how to proceed.” Rule 1.14 Comment [6] suggests that a lawyer may seek guidance from an appropriate professional to aid in the determination of capacity. But ABA 404 also recognizes that “[a] client who is making decisions that the lawyer considers to be ill-considered is not necessarily unable to act in his own interest, and the lawyer should not seek protective action merely to protect the client from what the lawyer believes are errors in judgment.”

TAKING PROTECTIVE ACTION

ORPC 1.14 (b) provides:

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.

Comment [5] suggests protective measures, including consulting with family members, employing a reconsideration period, using durable powers of attorney, consulting professional services or Adult Protective Services. “Reasonably necessary” is generally the “least restrictive action under the circumstances.”[1]

GUARDIAN AD LITEM, CONSERVATOR OR GUARDIAN

If there's no less drastic option to protect the client's interests, 1.14 (b) allows a lawyer to seek the appointment of a guardian to protect the client's interests. If the requirements of 1.14 are met, a lawyer may seek appointment to have a guardian to protect the client's interests despite the client's disapproval.[2] However, the lawyer should seek the appointment of a guardian to “only when a client consistently demonstrates a lack of capacity to act in his or her own interests and it is unlikely that the client will be able to attain the requisite mental capacity to assist in the proceedings in a reasonable time.”[3]

When a decision has been made to seek a guardianship, a lawyer should not seek to be appointed as guardian except where “immediate and irreparable harm will result from the slightest delay.”[4] Similarly, a lawyer normally should not represent a third party who seeks to be appointed guardian for the client.[5]

CONFIDENTIALITY UNDER 1.14

ORPC 1.14 (c) makes clear that “[i]nformation relating to the representation of a client with diminished capacity is protected by Rule 1.6.” But “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.”[6] Limited disclosure is appropriate in aid of a lawyer’s assessment of the client's capacity and in a determination of how to proceed. Care should be taken, however, to reveal only that information “reasonably necessary to protect the client's interests.”[7]

Mr. Stevens is OBA ethics counsel. Have an ethics question? It’s a member benefit, and all inquiries are confidential. Contact him at richards@okbar.org or 405-416-7055. Ethics information is also online at www.okbar.org/ec.

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ENDNOTES

[1] ABA Formal Ethics Op. 96-404 (1996).

[2] In re S.H., 987 P.2d 735 (Alaska 1999).

[3] Or. Ethics Op. 2005-159 (2005).

[4] ABA Formal Ethics Op. 96-404 (1996); accord Colo. Ethics Op. 126 (2015).

[5] ABA Formal Ethics Op. 96-404 (1996). But see In re Thetford, 574 S.W.3d 362 (Texas 2019), and R.I. Ethics Op. 2004-1(2004).

[6] See, ABA Formal Ethics Op. 96-404.

[7] Colo. Ethics Op. 126.