QUESTION: I’ve represented an individual client for almost 20 years in various transactional and litigation matters. Over the past year, I’ve noticed what seems to be a mild yet steady decline in his cognitive abilities. He has stopped email communications and now will only talk on the phone or have someone bring him to my office. Our discussions of pending matters are becoming disjointed and repetitive.
Can I continue to properly serve a client who may have diminished capacity? What if he continues to decline?
ANSWER: According to the Alzheimer’s Association, there are many reasons why someone may show signs of diminished capacity. Some acute symptoms may pass or are corrected, while others may be chronic and eventually debilitating to one’s mental and physical functioning.
For example, millions of Americans are living with Alzheimer’s or other dementias, says the Alzheimer’s Association. As our growing population continues to age, so too may the number of people with dementia, as the risk increases with advancing age.
The Alzheimer’s Association predicts that 12.7 million Americans 65 and older (almost 1 in 6) will have Alzheimer’s by 2050.
For lawyers, the Rules of Professional Conduct demand that we keep client confidence (ABA Model Rule 1.6) while maintaining a normal client-lawyer relationship (Rule 1.14(a)). Few lawyers are medical professionals, qualified to make a diagnosis, let alone properly spot the signs of a true cognitive issue.
How Do You Best Serve a Client With Cognitive Decline?
So, what should lawyers do if they begin to notice a change in a client’s behavior and become uncomfortable with the client’s ability to properly contribute to the attorney-client relationship?
How should a lawyer handle situations where a client wants to take steps that might cause physical, emotional or financial harm, for example, to the client or others?
Let’s explore these questions, which will help determine how you can best serve your client while staying within the boundaries of your ethical obligations.
- How does a lawyer know if the client has diminished capacity?
- How might this change how a lawyer represents a client?
- What protective measures can the lawyer take while meeting ethical obligations?
1. Assessing Diminished Cognitive Capacity
As Model Rule 1.14(a) directs, a lawyer “shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client” when a client’s capacity is diminished. Nevertheless, how does a lawyer assess a client’s capacity in the first place?
Part (b) of the Rule invokes the reasonableness standard: “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 interest …”
This triggers the circular logic definition of reasonableness under Rule 1.0(i): “’Reasonable belief’ or ‘reasonably believes’ when used in reference to a lawyer denotes that the lawyer believes the matter in question and that the circumstances are such that the belief is reasonable.” But this offers no help when it comes to what behaviors to look for in your client.
Fortunately, when you dig deeper into the comments of Rule 1.14, you find Comment 6, which provides some guiding factors to “consider and balance” in identifying and evaluating such circumstances. These include:
- The client’s ability to articulate reasoning leading to a decision, variability of state of mind, and ability to appreciate consequences of a decision.
- The substantive fairness of a decision.
- The consistency of a decision with the known long-term commitments and values of the client.
Clients, however, may make foolish or impulsive demands or decisions aside from any diminished capacity. Poor judgment on the part of the client alone shouldn’t trigger the protective action sought by Rule 1.14.
In fact, ABA Formal Ethics Opinion 96-404 states:
“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. Rule 2.1 permits the lawyer to offer his candid assessment of the client’s conduct and its possible consequences, and to suggest alternative courses, but he must always defer to the client’s decisions. Substituting the lawyer’s own judgment for what is in the client’s best interest robs the client of autonomy and is inconsistent with the principles of the ‘normal’ relationship.”
Comment 6 also permits lawyers to seek guidance from an “appropriate diagnostician” under “appropriate circumstances.”
The ability to seek the opinion of a professional in evaluating diminished capacity could offer an important perspective in understanding your client’s abilities, especially in situations where the onset of symptoms has been slow and likely not so apparent to the lawyer.
In certain cases, such as the execution of estate planning documents when a client’s mental capacity is in question or challenged, it may be wise to recommend that the client obtain a doctor’s written opinion about their mental abilities at that time.
Remember, while your client’s confidentiality of information is protected under Rule 1.6, you do have the flexibility to reveal such information to the extent necessary to protect that client under Rule 1.14(c).
Likewise, any advice the lawyer receives from the professional diagnostician is protected by Rule 1.6.
2. Impact on the Client Relationship
As mentioned above, Rule 1.14 allows a client with diminished capacity to make decisions and manage their affairs as any other client would when reasonably possible. The totality of each client’s circumstances will determine the extent and degree of their ability to participate should capacity be a legitimate concern.
As Model Rule 1.14, Comment 1 states, in part:
[A] client with diminished capacity often has the ability to understand, deliberate upon, and reach conclusions about matters affecting the client’s own well-being. For example, 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. So also, it is recognized that some persons of advanced age can be quite capable of handling routine financial matters while needing special legal protection concerning major transactions.
The initial question posed mentions the change in maintaining communication with the client, as he has stopped using email. This likely demands changing how you represent the client, in terms of the mode of communication at the least.
Rule 1.4 is built on keeping the client informed so they can make considered decisions about the objectives of their representation and the means of achieving those objectives.
Just as you’re forced to reconcile confidentiality of information with maintaining a normal relationship (Rules 1.6 and 1.14), attorneys must do their best to give clients “sufficient information to participate intelligently in decisions concerning the objectives of the representation and the means by which they are to be pursued, to the extent the client is willing and able to do so” (Rule 1.4, Comment 5).
So, attorneys must not only provide sufficient information, but also try to reasonably evaluate the client’s comprehension of the information.
3. Taking Protective Measures
Rule 1.14 may seem harsh in tethering a lawyer to a matter when a client’s competency cannot allow for diligent representation. Yet, while allowing a lawyer to withdraw may remedy the lawyer’s dilemma, it would leave the impaired client without help at a time when they likely need it most.
A lawyer can abandon representation only when they’re unable to establish or maintain a lawyer-client relationship imposed by Rule 1.14. In this event, the lawyer must seek permission from the court to withdraw, if applicable, or take further protective actions allowed under Rule 1.14(b) outside the bounds of a normal lawyer-client relationship.
The lawyer is permitted, even against the client’s wishes and direction, to take action to appoint a guardian ad litem, guardian or conservator. Comments 5-7 guide what constitutes appropriate “protective action” and to what extent.
Comment 7 states:
“If a legal representative has not been appointed, the lawyer should consider whether appointment of a guardian ad litem, conservator or guardian is necessary to protect the client’s interests. Thus, if a client with diminished capacity has substantial property that should be sold for the client’s benefit, effective completion of the transaction may require appointment of a legal representative. In addition, rules of procedure in litigation sometimes provide that minors or persons with diminished capacity must be represented by a guardian or next friend if they do not have a general guardian. In many circumstances, however, appointment of a legal representative may be more expensive or traumatic for the client than circumstances in fact require. Evaluation of such circumstances is a matter entrusted to the professional judgment of the lawyer. In considering alternatives, however, the lawyer should be aware of any law that requires the lawyer to advocate the least restrictive action on behalf of the client.”
Before taking protective actions:
The lawyer should inform the client of their concerns about the client’s capacity before taking protective actions. While the lawyer is permitted to act independently of the client’s direction concerning taking protective actions, the lawyer must continue to follow their other ethical obligations including communications (Rule 1.4) and candid advice (Rule 2.1).
For example, considerations surrounding the onset of dementia may have implications beyond legal matters, such as moral, economic, social and political factors, which may be relevant to the client’s situation.
Before involving other parties:
Lastly, as you navigate the additional demands of serving a client with diminished capacity, don’t lose sight of keeping your client’s interests first and consider the interests of others only insofar as they matter to the client.
While it may seem appropriate or even comforting to involve other parties, especially family members, in the client’s deliberative process, lawyers must consider the impact of outside involvement. This involvement could lead to undue influence or the disclosure of confidential information.
Ethical Obligations Don’t Recede
When a lawyer suspects diminished capacity in a client, the lawyer’s ethical obligations don’t recede. In fact, the client’s diminished capacity may require the lawyer takes additional steps in servicing and representing the client.
The duties of competence, communication, confidentiality and advice may require additional measures to ensure that the client’s decision-making ability and authority are upheld and prioritized. A lawyer may be faced with making difficult determinations and, when necessary, take protective measures, even when they may go against the client’s wishes.
- ABA Formal Opinion 96-404, Client Under a Disability.
- Colorado Bar Association Formal Opinion 126: Representing the Adult Client With Diminished Capacity.
- ISBA Professional Conduct Advisory Opinion No. 12-10, Withdrawal from Representation; Impaired Client; Confidentiality.
- New York City Bar Formal Opinion 2018-1: Protective Action, and Disclosures of Confidential Information, to Benefit a Prospective Client with Diminished Capacity.
- State Bar of California Standing Committee on Professional Responsibility and Conduct Formal Opinion No. 2021-207.
- Assessment of Older Adults with Diminished Capacities: A Handbook for Lawyers, 2nd Edition, by the ABA Commission on Law and Aging and the American Psychological Association.
The Illinois Supreme Court Commission on Professionalism was established by the Illinois Supreme Court in 2005 under Supreme Court Rule 799(c) to foster increased civility, professionalism, and inclusiveness among lawyers and judges in Illinois. By advancing the highest standards of conduct among lawyers and judges, the Commission works to better serve clients and society alike. For more information, visit 2Civility.org and follow us on Twitter @2CivilityOrg.
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