8.04. The Diminished Client [Rule 1.14]

In the ordinary relationship between a lawyer and client, decisions are made through the cooperative model discussed above.  There are situations, however, when the client is unable to participate in the decision-making process.  This could be because the client is too young to understand what is going on or because the client has some type of mental impairment (for example dementia).  From the standpoint of the aging population, the statistics are eye-opening:  currently, 5.8 million Americans are living with Alzheimers and the estimate is that by 2050, 14 million will be affected.[1] Alzheimers is just one type of dementia that can cause cognitive decline. 

Rule 1.14 labels a client as having “diminished capacity” if the client has some limit on their ability to fully participate in decisions.  A client’s diminishment can occur on a continuum.  A client may be able to understand and participate in simple decisions, but unable to understand more complex issues.  In that situation, the lawyer should continue with the ordinary attorney-client relationship with those simpler issues.

Mother filed for an involuntary guardianship over her son (Jason).  The court appointed counsel for Jason in the guardianship proceedings.  In consulting with Jason the attorney learned that Jason disputed the facts set out in the guardianship petition and opposed the guardianship.  However, the lawyer also developed a belief that Jason was  “troubled” 31-year old man.  In her report, the attorney concluded that appointing Mother as the guardian would be “reasonable.”  Has the lawyer acted appropriately in this situation?  [In re Guardianship of Henderson, 838 A.2d 1277 (N.H. 2003)]

No. The client was able to communicate with the lawyer about what the client wanted.  The lawyer, instead of advocating for the client’s objective, advocated for what the lawyer thought was in the best interest of the client.  A diminished client is one that cannot make decisions on their own – not one that is making decisions that the lawyer does not agree with.  Essentially in this case the lawyer acted as a guardian ad litem, advising the court on what she thought was in the best interest of Jason, instead of as a lawyer advocating for what Jason wanted.

The first problem faced by a lawyer is how to determine whether a client indeed has diminished capacity.  Comment [6] to Rule 1.14 says that a lawyer should consider the following:  “[1] the client’s ability to articulate reasoning leading to a decision, [2] variability of state of mind and ability to appreciate 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.”  These are fine factors in theory, but how does a lawyer make this determination in practice?  In their book, Alzheimer’s and the Law: Counseling Clients with Dementia and Their Families (2013), authors Kerry Peck and Rick L. Law discuss a lawyer’s obligation when representing elderly clients who are suffering from mental impairment generally and Alzheimer’s in particular. For any of you who might be interested in an estate planning practice, this looks like a very good book to have in your library.[2]

The reality is that lawyers have always engaged in some initial assessements – even before Rule 1.14 was amended in 2002.  At the most basic, a lawyer has to assess whether a potential client has the capacity to enter into an engagement letter with the lawyer.  In addition, certain legal transactions require lawyers to evaluate client capacity.  For example, a client who wants the lawyer to assist in drafting a will, must ensure that the client is of “sound” mind.  In addition, a client seeking lawyer representation with regard to a contract must also have an idea of the substance of the contract they are entering into.  In the past, however, the extent of the assessment placed on the lawyer was minimal.  If the lawyer failed to adequately assess a client seeking a will, the aggrieved heirs would have a difficult time succeeding in a malpractice claim againt the lawyer either because of lack of privity or because of the difficulty in establishing that the lawyer breached a duty:  after all, if all lawyers are engaging in a superficial assessment of competence, then it would not be a breach of duty for this lawyer to do so.  However, with an aging population, and increasing expectation that a lawyer will do more (as demonstrated by the amendments to Rule 1.14), lawyers risk malpractice liability if they fail to do an adequate assessment of capacity.

Even though lawyers have historically engaged in client assessment, some have argued that Rule 1.14 requires a lawyer to make a medical determination about a client’s competence that lawyers may not feel comfortable (or competent) to make. This is particularly true because mental impairments not only run the gamut from mild to debilitating, but also because they may not be constant and may present as severe at certain times but not others.

The ABA has taken steps to try to assist and inform lawyers about evaluation of mental conditions.  The ABA and the American Psychological Association have prepared a very nice handbook to assist lawyers in doing the initial evaluation.  It is well worth the read.[3]  Here are some of the take-aways from the Handbook.  Most of the time no professional assessment will be necessary.  What the lawyer does in the ordinary course of counseling with a client will be sufficient.  Further assessement may be necessary when the lawyer observes certain “red flags” about the client.  For example, the client may exhibit signs of incapacity in several realms:  cognitive incapacity (short term memory loss, communication problems, comprehension problems, disorientation, etc.); emotional incapacity (anxious, tearful, depressed or responding inappropriately to emotional cues – laughing when talking about death of a close relative); or behavioral incapacity (delusions, hallucinations, or poor grooming hygiene).  Even when a lawyer observes signs of incapacity in the client, the lawyer should ask whether there are mitigating circumstances that would explain the conduct (and which could reversed or alleviated), for example the actions may be the result of stress, grief, depression, or because of recent events, reversible medical factors, normal variation in mental ability, or hearing/vision loss. 

Perhaps the most significant change in the lawyer’s practice is the obligation to document what you see and have an explanation in the file of how the lawyer observed the client’s physical, mental, and behavioral capacity.  If the lawyer is satisfied that the client has capacity, then continuing in a normal lawyer-client relationship is appropriate.  In the ABA and APA Handbook, there is a very useful worksheet that lawyers can use (on pages 23 – 26).

The following flowchart is from the Handbook:

The Peck & Law book (cited above) provides lawyers additional guidance on a client evaluation.  As the authors point out, clients may be insulted or put off if a lawyer immediately says “I have to evaluate your mental condition, so take this questionnaire.” But, if the lawyer is able to incorporate the evaluation into a normal meeting, the lawyer can perform the evaluation while obtaining relevant information about the representation.

First, before beginning the questioning, ask everyone but the client to leave the room so you can speak with the client alone. Then make sure the client understands that whatever is said will be confidential and that it is important for the client to be honest in answering your questions. The questions in the Peck & Law script then fall into three overarching categories: “Testamentary Capacity”; “Donative Capacity/Contractual Capacity”; and “Capacity to execute a Power of Attorney for Property and Health Care.”

The questions in each category are such that a client’s inability to remember or answer them, should raise red-flags in a lawyer’s mind. An example of some of the questions include:

• Where do you live? How long have you lived there? Do you own your home? Do you owe anything on your house?
• Tell me about your income.
• Ask to describe family members (ex. honest, reliable, caring, irresponsible, dishonest)
• What would you like our firm to do for you today?

The book encourages a lawyer to evaluate the client for any noticeable cognitive issues (“such as memory problems, disorientation, trouble comprehending”) and any personal hygiene issues that could indicate a problem.

After the evaluation, the lawyer may come to one of three conclusions: (a) the client has no diminished capacity; (b) the lawyer is unsure of whether the client has diminished capacity – there is evidence but it is not convincing; and (c) the client clearly suffering from a diminished capacity. If the client falls within the second category, the lawyer should take further steps to evaluate the client’s condition. The lawyer should consider referring the client to a neurologist or a geriatric psychiatrist for evaluation.

Linda Lawyer represents Clara Client with all of her personal and business transactions.  Clara has several businesses that she has developed and operated over the years.  Recently, however, Lawyer has noticed that Clara has trouble distinguishing between her businesses and gets confused easily when discussing on-going business transactions.  However, Clara seems to have no trouble making decisions regarding her personal finances.  Is Clara suffering from “diminished capacity” under Rule 1.18?  [ABA Rule 1.14, Comment [1]]

Yes and no.  Clara has diminished capacity with regard to the more complicated business transactions but not with regard to personal financial decisions.  Therefore, the lawyer should maintain a normal lawyer-client relationship with regard to the extent possible with the personal financial decisions, but may be able to take unilateral action to protect Clara with regard to the more complicated business transactions.

When a lawyer “reasonably believes” that a client has diminished capacity and is “at substantial risk of substantial physical, financial or other harm” unless the lawyer takes action on behalf of the client, Rule 1.14 provides that a lawyer can ethically act unilaterally and take “protective action.”  This includes the right to “consult[] with individuals or entities that have the ability to take action to protect the client” and possibly even “seek[] the appointment of a guardian ad litem, conservator or guardian.”[1]  The Comment gives more examples of the type of protective action contemplated by the Rule:  “consulting with family members, using a reconsideration period to permit clarification or improvement of the circumstances, using … durable powers of attorney or consulting with support groups professional services, adult-protective agencies or other individuals or entities that have the ability to protect the client.”[2] 

Can you see why adoption of this rule was controversial?  It literally flips the attorney-client relationship on its head.  In the ordinary principal-agent situation, where the principal cannot direct the agent, the agent is not free to take action on their own.  However, Rule 1.14 contemplates that the lawyer (agent) will make decisions for the client in the most sensitive and consequential area of the client’s life.  In what is perhaps the greatest break in ordinary relationship between lawyer and client, a lawyer who acts on behalf of a client under Rule 1.14 can disclose confidential information to the extent necessary to assist the client.[3] 

Rule 1.14 also authorizes a lawyer to provide emergency legal assistance.  This is a situation where an individual is unable (because of diminished capacity) to form an attorney-client relationship with the lawyer and “the health, safety or financial interest” of the person is threatened with “imminent and irreparable harm.”[4]  The lawyer should only act when there is not other lawyer, agent or representative available to act on behalf of the person.  The goal in these emergency situations is to maintain the status quo and avoid the imminent harm.  The lawyer should maintain the confidences of the person as if they were a client and would not ordinarily seek compensation for the emergency assistance.[5]

Although the analysis above has focused on diminished capacity due to advanced age – the ethical challenges can arise in other contexts as well.  The situation mentioned in the rule is with regard to minors.  Representing children can put lawyers in a serious ethical quandary.

A.W. was sexually abused by her step-father for when she was young (between 2 and 6).  Her step-father was convicted of sexual abuse and sent to prison.  Her mother denied that the abuse took place.  After the step-father was released from prison, he returned to the mother.  A.W. had been removed from the home and placed with her grandmother.  She is now 13 years old.  The court appointed an attorney for A.W. in the proceedings.  Over time, supervised visitation with the mother and step-father was allowed, and thereafter the court ordered unsupervised visitation.  Murphy let the court know that he opposed unsupervised release:  because both parents were in denial about the abuse and the step-father refused to participate in treatment for sex offenders.  In response, A.W. wrote a letter to the court stating:  “I am very unhappy about not visiting my mom, dad, and brother.  My attorney is not doing what I want and that is to be at home with my family.”  Although the attorney acknowledged that A.W. was “mature and competent”, the attorney felt that A.W. was being manipulated in what she thought she wanted.  Has the attorney acted appropriately in expressing views counter to that of her client? [based on In Interest of A.W., 618 N.E.2d 729 (Ill. Ct. App. 1993)]     

No.  The client here, admittedly “mature and competent” wants to live with her mother/father/brother.  The fact that the lawyer does not believe that is in the best interest of the child does not mean that the lawyer does not have an obligation to advocate the child’s wishes.  Here is what Comment [1] to Rule 1.14 provides:  “children as young as five or six years of age, and certainly those of ten or twelve, are regarded as having opinions that are entitled to weight in legal proceedings concerning their custody.”  Notice that A.W. is thirteen.  Here is how one author put it:  “For older clients approaching the age of legal majority, it becomes increasingly difficult for lawyers to justify substituting their judgment based solely on a disagreement with the wisdom of the client’s instructions, in the absence of any evidence of mental impairment.  And for the very young clients at the other end of the spectrum, even when advocates are assigned to act as attorneys who are at least nominally bound by their client’s express wishes, the notion of client-driven representation is little more than a legal fiction, leaving lawyers free to decide how to best serve the client’s interests.”[6]

The question of determining competence is the same as with older clients.  The same considerations should be taken into account:  cognitive, behavioral, and emotional.  If the lawyer determines that the client is diminished then the lawyer may be able to take protective action so long as the lawyer determines that the child is at risk of substantial physical, financial or other harm and they cannot act in their own interests.  However, what a lawyer representing the child cannot do is to substitute their own belief for what is best for the child – just because the client is a child.  That is why courts will often appoint a guardian ad litem – separate from lawyers representing parties in a case – when it comes to cases involving children.  The role of the guardian ad litem is to advocate what is in the best interest of the child – even if that is not what the child wants.  If you are involved in proceedings involving the welfare of a child, you need to be attentive to the role that you are expected to play.  Are you the lawyer, advocating on behalf of what the child wants?  Are you the guardian ad litem, advocating for what is in the best interest of the child?  Are you both the lawyer and guardian ad litem?  Although these dual appointments raise serious conflict of interest concerns[7], some states (including Mississippi) recognizes dual appointments.[8]

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[1] ABA Rule 1.14(b).

[2] ABA Rule 1.14, Comment [5].

[3] ABA Rule 1.14(c).

[4] ABA Rule 1.14, Comment [9].

[5] ABA Rule 1.14, comment [9] & [10].

[6] Bruce A. Boyer, “Representing Child-Clients with ‘Diminished Capacity’: Navigating an Ethical Minefield,” 24 Prof. Law. 36 (June 14, 2017).

[7] See “Recommendations of the Conference on Ethical Issues in the Legal Representation of Children”, 64 Fordham L. Rev. 1301, 1302 (1996).

[8] S.G. v. D.C., 13 So. 3d 269 (Miss. 2009).

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[1] 2019 Alzheimer’s Disease Facts and Figures, Alzheimer’s Association (2019) (can be viewed at: alz.org). 

[2] In addition to the book, the ABA Commission on Law and Aging and the American Psychological Association has produced a publication called Assessment of Older Adults with Diminished Capacity. A copy of the document can be found here in .pdf:

http://www.apa.org/pi/aging/programs/assessment/capacity-psychologist-handbook.pdf

[3] ABA & APA, “Assessment of Older Adults with Diminished Capacity: A Handbook for Lawyers,” (2005). The Handbook can be found here:  https://www.apa.org/pi/aging/resources/guides/diminished-capacity.pdf.