From time to time, around our own dinner table, my wife – with her particular brand of bluntness – will ask, “Why did you take that case if your client is clearly crazy?” The question is a fair one with the benefit of hindsight. But at the beginning of a case, what looks like one problem can turn into another.

My answer is that in family law, it is not unusual for a client to seem irrational in the beginning. Divorce and custody disputes often bring out the worst in people: fear, grief and anger. Most of the time, those emotions settle, and clients regain stability. But sometimes, they do not. And sometimes, what looks like temporary instability is, in fact, a deeper problem. In those cases, the question is no longer just about difficult personalities. It becomes about the limits of client autonomy, the boundaries of lawyer judgment and the ethical responsibilities that fall on us when a client’s capacity is uncertain.

This has increasingly been an issue I have noticed in the representation of the elderly. Many of these clients lean heavily on their spouses, and in the context of a divorce, the spouse is no longer suitable as support since they are now engaged in “forensic combat” with each other.[1] The combination of age-related cognitive decline, the emotional strain of marital breakdown and the practical challenges of living alone leaves them unable to function at the necessary level to effectively participate in litigation. The press of litigation is especially hard for those whose confusion, forgetfulness or volatility makes it difficult to understand their rights and make decisions. These impairments also hinder their ability to carry out the steps necessary to protect their interests in court. This is especially a problem when a core part of the process is retrieving information and documents related to their cases, as well as making decisions when they are confronted with a true dilemma – when there is no availability of even one good choice over the many bad choices.

Lawyers frequently represent clients who are not legally incompetent but whose functional impairments create real challenges. The fact is that a client’s capacity is not a binary between legal competence and their incompetence, but capacity exists on a spectrum. In contemplation of this fact, the Oklahoma Rules of Professional Conduct Rule 1.14 informs lawyers on how to approach the representation of clients with diminished capacity. The purpose of this rule is to preserve the client’s autonomy and guard the client’s interest against the imposition of outside control, even that of a lawyer who thinks they know what is best for the client.

This article explores the attorney’s ethical obligations when dealing with such a client and the importance of avoiding substituting the attorney’s own judgment for that of the client.

Oklahoma Rule 1.14 requires that when a client’s capacity to make decisions is diminished, the lawyer must, “as far as reasonably possible,” maintain a “normal” attorney-client relationship. If a lawyer reasonably believes that a client is at risk of substantial harm and cannot adequately act in their own interest, the lawyer may take reasonable protective measures. This can include consulting with family, professionals or agencies and, in appropriate circumstances, seeking the appointment of a guardian ad litem or other legal representative. Information about the client remains confidential under Rule 1.6, but the lawyer is impliedly authorized to disclose what is reasonably necessary to protect the client’s interest. Nonetheless, the lawyer should ensure that the protective measures intrude on the client’s autonomy as little as possible, with a focus on maximizing the client’s participation in decisions.

A normal lawyer-client relationship is based on the client being capable of making decisions about important matters. In litigation, this also includes the client remembering and following instructions, providing requested information, understanding legal advice and implications and maintaining emotional regulation in court. This becomes a problem when an elderly spouse in a divorce is unable to recall details from previous meetings. It can also be an issue when any client’s grief or anxiety makes sustained focus impossible. It is the hardest in cases where the litigant is isolated and has no support system to help carry out legal tasks.

Rule 1.14 contemplates a variety of protective actions that can be taken to assist the client with diminished capacity. For example, the client may wish to have family members or other trusted persons included in the discussions with the lawyer. When this is necessary to assist in the representation, it does not automatically lead to the invalidation of the attorney-client privilege. Additionally, the lawyer may choose to use written summaries and checklists with the client to assist with clarity. The lawyer can also use a “reconsideration period” in which the lawyer allows a client with diminished capacity to have more time to consider the action to be taken – of course, this works only with a client who has the ability to understand the proceedings, but may be having only a temporary difficulty deciding on a course of action. In extreme cases, the lawyer can seek the appointment of a guardian ad litem or a guardian when the client does not have the capacity to make adequately considered decisions in connection with representation.[2] Further, it should be noted that under the rule, a lawyer is not obligated to take protective measures, and the rule specifically uses the word “may” in regard to such steps.

If a lawyer chooses to take protective measures, Rule 1.14 cautions that the lawyer should avoid overreach and strive to maximize the client’s autonomy. The fact that a client may have diminished capacity does not relieve the lawyer of the obligation to treat the client with attention and respect. This includes maintaining client confidentiality under Rule 1.6, which must be maintained except when taking protective action to the extent reasonably necessary to protect the client’s interest. As in all things, the paramount concern is the client’s interests and maintaining effective communication.[3]

A lawyer should assiduously avoid the mistake of confusing difficult behavior with incapacity. This is easier said than done, as many of the same outward behaviors are the same. The client may not return requested documents, delay in responding to requests for direction, become emotionally explosive during routine and necessary discussions and even miss appointments and deadlines. For the difficult client, the right remedy may be a motion to withdraw, but for a client with diminished capacity, there are other options. The question is how to tell the difference. Comment 6 under Rule 1.14 offers some guidance for determining the extent of a client’s diminished capacity by balancing the following factors:

1. the client’s ability to articulate reasoning leading to a decision;
2. the variability of state of mind and the ability to appreciate the consequences of a decision;
3. the substantive fairness of a decision; and
4. the consistency of a decision with the known long-term commitments and values of the client.

If in doubt and subject to limitations on the disclosure of confidential information, the lawyer may seek guidance from a professional who is capable of diagnosing the client’s diminished capacity. Applying these factors can be particularly challenging when the client has no family or friends to assist, as is often the case in contested divorces involving elderly litigants. Further, the lawyer can avail themselves of the exception under Rule 1.6 and contact OBA Ethics Counsel Richard Stevens for guidance on the matter.[4]

One of the most challenging situations under Rule 1.14 arises when a client has no close family members or trusted friends to assist them through litigation. Without someone to help the client remember instructions, gather documents and manage deadlines, the client’s ability to function in the case can be severely impaired. Yet, this is not a circumstance in which withdrawal is appropriate, as doing so would leave the client unrepresented and at a serious disadvantage, arguably compounding their vulnerability. A lawyer’s ethical duty under Rule 1.14 is to find ways to support the client’s participation despite their diminished capacity. It is no easy task and one in which the lawyer should strive not to supplant the client’s decision-making.

While there are no published Oklahoma disciplinary cases under Rule 1.14, Mr. Stevens has emphasized careful documentation and adherence to the “least restrictive means” principle when taking protective measures.[5] As noted in the comments to the rule, “The lawyer’s position in such cases is an unavoidably difficult one.” Either way, we will look at a couple of cases from other jurisdictions to illustrate what not to do.

A disciplinary case out of Washington, In re Eugster, warns that taking over a client’s life through an unwanted guardianship can violate both loyalty and confidentiality.[6] Mr. Eugster attempted to use Washington Rule 1.14 to defend his actions of taking guardianship over his client to protect her and her estate from her relatives. Ultimately, the Washington Supreme Court rejected Mr. Eugster’s arguments and found that he had failed to make reasonable inquiries into his client’s competency and that he had reason to know she was competent when he filed the guardianship. Likewise, in Florida Bar v. Betts, we find another case of how substituting the lawyer’s judgment for the client’s, however well-intentioned, undermines the very relationship Rule 1.14 seeks to preserve.[7] In Betts, the lawyer, after failed attempts to persuade his ailing client to reinstate his daughter as a beneficiary, prepared a codicil and guided the client's hand to mark an “x” while the client was comatose. The Florida Supreme Court viewed this as substituting the lawyer’s judgment for the client’s. Both cases underscore the danger of well-intentioned overreach: In each instance, the lawyer’s substitution of judgment for the client’s led to disciplinary sanction.

There are several practical steps when a lawyer concludes that the appointment of a guardian ad litem is necessary. Rule 1.14 specifically authorizes a lawyer to take protective action, which can include seeking the appointment of a guardian ad litem if the lawyer reasonably believes that the client:

1. has diminished capacity,
2. is at risk of substantial physical, financial or other harm unless action is taken; and
3. cannot adequately act in the client’s own interest.

This would involve filing a motion with the court to appoint a guardian ad litem, as Oklahoma law authorizes the appointment of a guardian ad litem “for an infant or incompetent person ... as it deems proper for the protection of the infant or incompetent person.”[8] This step further ensures the integrity of the litigation, as a party’s mental condition, once put at issue, creates a material fact that must be assessed by the court to assure due process.[9] Prior to filing the same, the lawyer should do the footwork to determine who would be available to serve in this capacity and what the cost would be for such services. It is good practice to bring to the trial court all necessary facts and information for the court to be able to enter effective orders in the case. Additionally, the names of a potential guardian ad litem, the relevant fees and the potential guardian’s availability are information that will be useful to the trial court. Of course, the lawyer should also attempt to thoroughly discuss the steps with the client and attempt to obtain the client’s informed consent prior to acting. Rule 1.14 in Comment 5 allows that the lawyer “should be guided by such factors as the wishes and values of the client to the extent known, the client’s best interests and the goals of intruding into the client’s decision-making autonomy.”

At its core, the professional relationship between lawyer and client is grounded in the principle that the lawyer advises, and the client decides.[10] Rule 1.14 underscores this balance even when a client’s capacity is diminished. The lawyer’s role is to explain the law, outline options and assess risks but not to commandeer the decision-making. The fact that the lawyer may better understand the process, the likely consequences or the technical subject matter does not confer the right to impose the lawyer’s will. Our role is not to make choices for clients but to equip them to make their own. This is true whether or not we would make the same choice in their position. This respect for client autonomy, even in the face of decisions we might personally view as unwise, is not just an ethical duty – it is a defining element of professional advocacy.

A lawyer who has not already encountered a client with diminished capacity will certainly encounter one in the future. It is a fact of working with people that lawyers must learn to meet their clients where they are. For those clients who occupy the space between legal competence and incapacity, Oklahoma Rule 1.14 provides guidance that is not about taking over a client’s case – or letting someone else do so. Although this is decidedly not an easy balancing act, supporting the client’s ability to participate effectively while protecting autonomy is the goal of good representation.

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ABOUT THE AUTHOR

Evan Taylor is a family and divorce lawyer, as well as a dedicated chicken keeper, located in Norman.

 

 

 

 

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ENDNOTES

[1] Chapman v. Chapman, 1984 OK 89, ¶10, 692 P.2d 1369, 1373.

[2] E.g. Fla. Bar Prof’l Ethics Comm., Op. 85-4 (1985) reconsidered in 1998. A Florida attorney, during a divorce settlement, suggested her client see professional help after the client exhibited signs of mental illness, and after her client’s adverse reaction to that suggestion, she sought guidance about whether withdrawal from the case was appropriate.

[3] E.g., N.Y. State Bar Ass’n Comm. On Prof’l Ethics, Op. 1144 (2018). The Ethics Committee examined a lawyer’s duties to maintain communication with a difficult and intimidating client who may have diminished capacity.

[4] Mr. Stevens can be reached at richards@okbar.org or 405-416-7055.

[5] Richard Stevens, “Diminished Capacity Rule 1.14,” OBJ 95 Vol 6 (August 2023).

[6] “In the Matter of the Disciplinary Proceeding Against Stephen K. Eugster,” 209 P.3d 435 (Washington 2009).

[7] The Florida Bar v. Betts, 530 So. 2d 928 (Florida 1988).

[8] 12 O.S. §2017(C).

[9] Vance v. Federal National Mortgage Assn., 1999 OK 73, 988 P.2d 1275 (in assessing the effectiveness of personal service, the Oklahoma Supreme Court emphasized that the defendant’s competence was a material fact, and her mental incapacity and the plaintiff’s knowledge thereof materially affected the due process concerned).

[10] Oklahoma Rules of Professional Conduct, Rule 1.2(a).