Speaking of Ethics: Representation of Impaired Clients
From Washington Lawyer, November 2001
By Susan D. Gilbert
On occasion the Legal Ethics Committee help line receives inquiries from lawyers whose clients, to varying degrees and for various reasons, are impaired and unable to participate fully in or comprehend their lawyer’s acts on their behalf. If it is possible to generalize, many calls involve an elderly client whose formerly acute (or marginally so) mental capabilities are failing the client now, and the lawyer calls the Ethics Committee wanting to know how best to proceed.
Many practitioners who call the help line do not represent impaired clients on a regular basis, and they are looking for answers to questions that the Ethics Committee cannot provide (e.g., can I seek a guardian ad litem for my client?). In these instances lawyers are referred to various sources that should help them in reaching the "correct" answer.
This article is sparked by a recent call, and it is primarily intended to provide source materials. It reports on this jurisdiction’s Rule 1.14 (Client Under a Disability) and on two American Bar Association (ABA) sources, one a formal opinion and the other the ABA’s Ethics 2000 Commission proposal to amend Model Rule 1.14. Although not yet acted upon by the ABA House of Delegates—nor is there a movement afoot to amend D.C. Rule 1.14—the proposed Model Rule 1.14 expands on the current rule and, in particular, constructively expands the commentary.
Prior to implementation of the D.C. Rules of Professional Conduct in 1991, this bar, like many, if not most, other bars, lacked an ethics rule addressing representations of individuals whose conditions, by virtue of age or mental impairment, rendered them incapable of participating in their legal affairs. In more than 200 opinions issued under the former D.C. Code of Professional Responsibility, not a single opinion addresses this subject.
Adoption of D.C. Rule 1.14 provided a specific rule, albeit one that provides little by way of "hard" advice. However, the lack of detailed advice is not surprising where, as here, a single rule has been crafted to cover widely dissimilar circumstances among clients. D.C. Rule 1.14 provides:
(a) When a client’s ability to make adequately considered decisions in connection with the representation is impaired, whether because of minority, mental disability, or for some other reason, the lawyer shall, as far as reasonably possible, maintain a normal client–lawyer relationship with the client.
(b) A lawyer may seek the appointment of a guardian or take other protective action with respect to a client protective action with respect to a client, only when the lawyer reasonably believes that the client cannot adequately act in the client’s own interest.
The four-paragraph commentary accompanying the rule addresses the need to assess each client’s level of impairment. Disclosure of the client’s disability to persons outside the lawyer–client relationship is covered in a separate comment. D.C. Bar Ethics Opinion 252 (1994) is the only D.C. opinion to discuss Rule 1.14, in this instance its applicability to a lawyer who is appointed guardian ad litem for a minor.
ABA Formal Opinion 96-404 (1996) provides a comprehensive consideration of Model Rule 1.14. Opinion 96-404 considers the situation where the lawyer has determined that a client no longer is mentally capable of handling his or her own legal affairs. Noting that Model Rule 1.14(b) does not bestow on the lawyer unlimited authority to seek appointment of a guardian ad litem, the opinion provides useful guidance on when a lawyer can take such an action: "[T]he lawyer [cannot] take protective action because the client is not acting in what the lawyer believes to be the client’s best interest, but only when the client ’cannot adequately act in the client’s own interest.’ " (Emphasis in original.) The opinion also deals with permissible consultations between the lawyer and the client’s family (or other third parties) when the lawyer is assessing the client’s capacity and how best to proceed. Given the similarity between ABA Model Rule 1.14 and our own rule, it is reasonable to look to ABA Formal Opinion 96-404 for guidance.
As noted above, the ABA’s Ethics 2000 Commission has recommended substantial revisions to Model Rule 1.14. The proposed rule, titled "Client with Diminished Capacity," continues to require that a lawyer maintain a normal client–lawyer relationship, and it specifies the circumstances under which a lawyer may take "reasonably necessary protective action." These circumstances include "risk of substantial physical, financial or other harm unless action is taken." Under these circumstances, the lawyer may take "protective action," which includes seeking appointment of a guardian ad litem, conservator, or guardian. New to the model rule, however, is permission for the lawyer to consult with "individuals or entities that have the ability to protect the client" from harm. Addressing the heightened confidentiality concerns, proposed Model Rule 1.14 deems that a lawyer, when seeking a protective action under the rule, has implied consent under Rule 1.6 to reveal necessary protected information.
The significant changes proposed to the current model rule are addressed in the expanded commentary to the rule. In particular, Comment  addresses confidentiality concerns when the client wants family members or others present during discussions with the lawyer, and Comment  expands on confidentiality issues relating to disclosure of the client’s condition. Comments  through , pertaining to taking protective action, provide useful suggestions to the practitioner regarding a broad range of "protective measures" that can be taken, factors that should be considered when determining a client’s diminished capacity, and clarification of the lawyer’s role in evaluating whether appointment of a legal representative is necessary or wise.
The Ethics 2000 Commission’s proposal for revising Model Rule 1.14 has yet to be considered, amended, or otherwise adjusted by the ABA House of Delegates. The next opportunity for consideration will not happen until the ABA’s midyear meeting next February. Nonetheless, the commission’s proposal may be useful to practitioners whose impaired client raises issues under Rule 1.14.
There are numerous opinions and writings on ethics issues relating to representation of minors, the elderly, and persons with limited mental capacity. Only a few citations are included here: North Carolina Formal Ethics Op. 98-16 (Jan. 15, 1999) (representation of client who is resisting an incompetency petition); Connecticut Bar Ass’n Informal Op. 97-19 (July 22, 1997) (representation of adult client who may be impaired); Bray & Ensley, Dealing with the Mentally Incapacitated Client: The Ethical Issues Facing the Attorney, 33 Fam. L.Q. 329 (1999); Lombard, Proceedings of the Conference on Ethical Issues in Representing Older Clients: Report of the Working Group on Client Capacity, 62 Fordham L. Rev. 1003 (1994). The D.C. Rules of Professional Conduct and opinions interpreting them can be located on the Bar’s Web site at www.dcbar.org/for_lawyers/ethics/legal_ethics/ opinions.cfm. For a copy of ABA Model Rule 1.14, ABA Formal Opinion 96-404, or proposed ABA Model Rule 1.14, contact the Legal Ethics Committee law clerk, Erin Moore, at 202-737-4700, ext. 232.
Ethics counsel Susan D. Gilbert and Ernest T. Lindberg are available for telephone inquiries at 202-737-4700, ext. 231 and 232, or by e-mail at firstname.lastname@example.org. Law clerk Erin Moore contributed to this article.