(b) 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 own interest, the lawyer may take reasonably necessary protective action, including consulting with individuals or entities that have the ability to take action to protect the client and, in appropriate cases, seeking the appointment of a surrogate decision-maker.
(c) Information relating to the representation of a client with diminished capacity is protected by Rule 1.6. When taking protective action pursuant to paragraph (b), the lawyer is impliedly authorized under Rule 1.6(a) to reveal information about the client, but only to the extent reasonably necessary to protect the client’s interests.
Comment
[1] The typical client-lawyer relationship is based
on the assumption that the client, when properly advised and assisted,
is capable of making decisions about important matters. When the client
is a minor or suffers from a diminished mental capacity, however, maintaining
the ordinary client-lawyer relationship may not be possible in all respects.
In particular, a severely incapacitated person may have no power to
make legally binding decisions. Nevertheless, 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. Many people with intellectual disabilities,
while lacking sufficient capacity to make binding decisions, have, and
are capable of expressing, opinions about a wide range of matters that
affect their lives.
[2] The fact that a client suffers a disability does
not diminish the lawyer’s obligation to treat the client with
attention and respect. Even if the person has a surrogate decision-maker,
the lawyer should as far as possible accord the represented person the
status of client, particularly in maintaining communication. “Surrogate
decision-maker” denotes an individual or entity appointed by a
court or otherwise authorized by law to make important decisions on
behalf of an individual who lacks capacity to make decisions in one
or more significant areas of his or her life. The term “surrogate
decision-maker” includes, but is not limited to, guardian ad litem,
plenary or limited guardian or conservator, proxy decision-maker, or
other legal representative.
[3] The client may wish to have family members, lay
advocates, or other persons participate in discussions with the lawyer.
When necessary to assist in the representation, the presence of such
persons generally does not affect the applicability of the attorney-client
evidentiary privilege. Nevertheless, the lawyer must keep the client’s
interests foremost and, except for protective action authorized under
paragraph (b), must look to the client, and not family members or others,
to make decisions on the client’s behalf.
[4] If a surrogate decision-maker has already been
appointed for the client, the lawyer should ordinarily look to that
person for decisions on behalf of the client. In matters involving a
minor, whether the lawyer should look to the parents as natural guardians
may depend on the type of proceeding or matter in which the lawyer is
representing the minor. In either case, the lawyer should consult with
the represented person to the maximum extent possible, as indicated
in comment [2] above.
Taking Protective Action
[5] If a lawyer reasonably believes that a client
is at risk of substantial physical, financial or other harm unless action
is taken, and that a typical client-lawyer relationship cannot be maintained
as provided in paragraph (a) because the client lacks sufficient capacity
to communicate or to make adequately considered decisions in connection
with the representation, then paragraph (b) permits the lawyer to take
protective measures deemed necessary. Such measures could include: consulting
with family members, using a reconsideration period to permit clarification
or improvement of circumstances, using voluntary surrogate decision-making
tools such as 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. In taking any
protective action, 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, the goals of intruding into the client’s decision-making
autonomy to the least extent feasible, maximizing client capacities
and respecting the client’s family and social connections.
[6] In determining the extent of the client’s
diminished capacity, the lawyer should consider and balance such factors
as: the client’s ability to articulate reasoning leading to a
decision, variability of state of mind, ability to appreciate the 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. In appropriate circumstances, the lawyer may seek guidance from
an appropriate diagnostician.
[7] If the client does not have a surrogate decision-maker,
the lawyer should consider whether the appointment of a surrogate decision-maker
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 surrogate decision-maker. 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,
the appointment of at least some types of surrogate decision-makers
may be more expensive, intrusive, 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 advocate on behalf of the client the least
restrictive form of intervention in the client’s decision-making.
Disclosure of the Client’s Condition
[8] Disclosure of the client’s diminished capacity
could adversely affect the client’s interests. For example, raising
the question of diminished capacity could, in some circumstances, lead
to proceedings for involuntary commitment. Information relating to the
representation is protected by Rule 1.6. Therefore, unless authorized
to do so, the lawyer may not disclose such information. When taking
protective action pursuant to paragraph (b), the lawyer is impliedly
authorized to make the necessary disclosures, even when the client directs
the lawyer to the contrary. Nevertheless, given the risks of disclosure,
paragraph (c) limits what the lawyer may disclose in consulting with
other individuals or entities or seeking the appointment of a surrogate
decision-maker. At the very least, the lawyer should determine whether
it is likely that the person or entity consulted with will act adversely
to the client’s interests before discussing matters related to
the client. The lawyer’s position in such cases is an unavoidably
difficult one.
Emergency Legal Assistance
[9] In an emergency where the health, safety or a
financial interest of a person with seriously diminished capacity is
threatened with imminent and irreparable harm, a lawyer may take legal
action on behalf of such a person even though the person is unable to
establish a client-lawyer relationship or to make or express considered
judgments about the matter, when the person or another acting in good
faith on that person’s behalf has consulted with the lawyer. Even
in such an emergency, however, the lawyer should not act unless the
lawyer reasonably believes that the person has no other lawyer, agent
or other representative available. The lawyer should take legal action
on behalf of the person only to the extent reasonably necessary to maintain
the status quo or otherwise avoid imminent and irreparable harm. A lawyer
who undertakes to represent a person in such an exigent situation has
the same duties under these Rules as the lawyer would with respect to
a client.
[10] A lawyer who acts on behalf of a person with
seriously diminished capacity in an emergency should keep the confidences
of the person as if dealing with a client, disclosing them only to the
extent necessary to accomplish the intended protective action. The lawyer
should disclose to any tribunal involved and to any other counsel involved
the nature of his or her relationship with the person. The lawyer should
take steps to regularize the relationship or implement other protective
solutions as soon as possible. Normally, a lawyer would not seek compensation
for such emergency actions taken.
