“Representing a client with diminished capacity is like walking on the edge of a razor – only more precarious and potentially more painful if the attorney missteps.”
-Professor Thomas E. Simmons, South Dakota School of Law1
Special problems arise for attorneys representing individuals with diminished mental capacity. Indeed, there are few ethical dilemmas more difficult. Diminished capacity can call into question the attorney’s authority to act on the client’s behalf at all. And it can cause direct conflict between the attorney’s duties of loyalty and confidentiality.
Under the common law, the incapacity of a principal wholly terminates an agency relationship. Restatement (Second) of Agency § 122(1). If the common law were strictly applied to the attorney-client relationship, a client’s diminished capacity could be viewed as ending the relationship altogether. But many jurisdictions have adopted a more nuanced approach. As the Restatement observes, even those with diminished capacity “continue to have rights requiring protection,” and are often “able to participate to some extent in the representation.” Restatement (Third) Law Governing Lawyers § 31, cmt. e. For example, even a client with diminished capacity should have the right to retain counsel to resist an application for an appointment of a guardian ad litem. Graham v. Graham, 240 P.2d 564 (Wash. 1950).
Ultimately, most states have recognized that determining whether the attorney’s authority persists during diminished capacity calls for legal judgment informed by the attorney’s duties of loyalty and confidentiality and other fiduciary obligations. For example, the duty of loyalty requires the attorney to act in the client’s best interests. But what if the attorney concludes that the client’s best interest is that the client lose the right of self-determination, such as by appointment of a conservator? States that have adopted ABA Model Rule 1.14(b), like Minnesota, hold that a lawyer has implied consent to speak with relatives or other third parties who can help the client, and even reveal information relating to the client’s apparent lack of capacity, when necessary to protect the client from financial harm. Other states, like California, view that approach as an unacceptable breach of the attorney’s duty of confidentiality, unless the client expressly consents to such a disclosure. See State Bar of California, Formal Opinion No. 2021-207. Under the California approach, when confronted with an impossible choice, the lawyer may have to simply decline from carrying out the client’s wishes and even terminate the representation. Id.
Neither approach is without shortcomings. For example, assume an attorney believes his client is suffering from diminished capacity. The client contacts the lawyer, asking for help transferring real property to the client’s nephew to the exclusion of the client’s children. The lawyer, suspecting undue influence, retains a consultant with the client’s permission to evaluate the client’s capacity. After the consultant reports back that the client has indeed lost the capacity to understand the transaction, the nephew reveals he now has power of attorney over the client’s estate and instructs the lawyer to proceed with the transaction. When the lawyer tries to contact the client, the nephew isolates the client and prevents the communication. What can the ethical attorney do? In states like Minnesota, the attorney is empowered by Rule 1.14(b) to seek help for the client, including by disclosing facts related to the diminished capacity. But doing so may lead to the client permanently losing the right to make independent financial decisions. In contrast, in California, the lawyer’s only option is to try to re-establish contact with the client or simply withdraw from the representation, leaving the client defenseless against the unscrupulous nephew.
Of course, in real life, the circumstances faced by attorneys are far messier than the hypothetical above. Regardless of the situation, attorneys have an obligation to maintain, as far as reasonably practicable, a normal attorney-client relationship. This means keeping the client informed, providing competent advice, and taking direction from the client to the extent possible. Even among clients with unquestionable capacity, each client’s ability to understand legal strategy and participate in the representation will vary. In each case, an attorney must be diligent in ensuring effective communication and respecting the client’s objectives. When disabilities or other capacity issues come into play, these obligations do not simply go away. To the contrary, even greater care must be exercised in ensuring they are fulfilled.
Attorneys must also avoid paternalism, being “careful not to construe as proof of disability a client’s insistence on a view of the client’s welfare that a lawyer considers unwise or otherwise at variance with the lawyer’s own views.” Restatement (Third) Law Governing Lawyers § 24 cmt. c. An attorney must stay mindful that their primary responsibility is to effect the wishes of the client after the client has understood the available options and legal and practical implications of the course ultimately chosen. Moore v. Anderson, Zeigler, Disharoon, Gallagher & Gray, PC, 135 Cal. Rptr. 2d 888 (Cal. App. 2003). In evaluating a client’s objectives, attorneys should be mindful to listen not just to their client’s stated goals, but also to their ability to explain their reasoning and to appreciate the likely consequences of their actions.
And finally, attorneys should recognize that the clients themselves should be involved in any concerns about capacity issues. Some clients may benefit from including a trusted family member into the decision-making. Attorneys should be encouraged to raise any concerns they have with the client and allow the client, to the greatest extent possible, an opportunity to participate in deciding how to address concerns about their own capacity.
1 Professor Tom Simmons is a law professor at the University of South Dakota School of Law. He will be presenting the ethics portion of our upcoming CLE, “Inconceivable: Fiduciary Circumstances That You Never Imagined (But Maybe Should),” which will be held on November 2, 2023.
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