Ethical challenges of representing clients with diminished capacity

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By Sari W. Montgomery

With an increasingly aging population, more and more lawyers face the prospect of dealing with clients with diminished capacity. While lawyers must maintain a normal attorney-client relationship to the extent reasonably possible, it is important that they have a heightened awareness of their clients’ potential vulnerabilities and, when circumstances require, to take action necessary to protect the client from physical, financial, or other harm.

The Rules of Professional Conduct emphasize the duties of loyalty, confidentiality and competent representation. However, these duties become increasingly complex when attorneys are tasked with representing clients with diminished capacity. Whether due to minority, age, mental illness, cognitive disabilities or other factors, such clients may not be able to fully understand the implications of legal decisions or effectively communicate their preferences.

This presents a unique set of ethical challenges for attorneys who must balance their duty to advocate for client wishes with the need to protect the client from harm. Adding to this challenge is that a client’s capacity may be inconsistent — with the client being lucid and able to make informed decisions one day, but not the next. Despite these difficulties, the fact that a client’s capacity is diminished does not lessen the lawyer’s obligation to treat the client with attention and respect (see, e.g., ABA Model Rule 1.14, Cmt. [2]). Lawyers should strive to communicate in a manner that is accessible to the client, using plain language and checking for understanding. Frequent communication can help a lawyer assess the client’s capacity and determine if and when protective action is needed.

What is diminished capacity?

When we talk about diminished capacity, we are referring to a client’s reduced ability to make informed decisions and to act adequately in the client’s own interest. This reduced ability may be due to minority, or mental or cognitive impairments that can arise from a number of conditions including dementia, intellectual disabilities, severe mental illness or traumatic brain injuries. Clients with diminished capacity may struggle to understand complex legal issues, assess the consequences of their decisions or clearly communicate their preferences. Importantly, however, whether a client’s capacity is diminished is not measured by whether the client is acting in what the lawyer believes to be in the client’s best interest, but only whether the client cannot adequately act in the client’s own interest (ABA Standing Committee on Ethics and Professional Responsibility Formal Ethics Opinion 96-404, (Aug. 2, 1996) (citations omitted)).

The American Bar Association Model Rules of Professional Conduct provide guidance on how lawyers should approach these situations. Specifically, Rule 1.14 addresses clients with diminished capacity, advising lawyers to maintain a normal client-lawyer relationship as far as reasonably possible. However, the Rule also acknowledges that, in certain situations, lawyers may need to take protective action, which could include consulting with family members, seeking the appointment of a guardian, or even making decisions on the client’s behalf in extreme or emergency cases.

Overriding a client’s wishes

One of the most difficult challenges is balancing the client’s autonomy with the need to protect them from harm. Lawyers are trained to advocate for their client’s wishes, but when those wishes could result in substantial physical, financial or other harm, the attorney faces a moral and ethical quandary and must determine whether it is appropriate to intervene and override the client’s expressed wishes. Lawyers are not mental health professionals, yet they are often required to assess their client’s capacity to make decisions.

Misjudging a client’s capacity can lead to ethical violations, either by failing to protect a client who lacks the ability to make informed decisions, or by unduly restricting the autonomy of a capable client. Some factors to consider in determining the extent of a client’s diminished capacity 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; and the consistency of a decision with the known long-term commitments and values of the client.

In instances where the lawyer reasonably believes that protective action may be required but is unable to make a determination as to the client’s capacity, the Rules of Professional Conduct permit disclosure of a client’s condition to a diagnostician to the extent necessary to obtain an assessment of the client’s capacity (ABA Model Rule 1.14(c), Cmt. [5], [6], [8]; ABA Standing Committee on Ethics and Professional Responsibility Formal Ethics Opinion 96-404, (Aug. 2, 1996)).

In some cases, lawyers may determine that the appointment of a guardian or conservator is necessary to protect the client’s interests. However, this step raises further ethical concerns. As we saw in the highly publicized Britney Spears case, placing someone under a guardianship or conservatorship is a drastic measure that effectively strips a client of their legal rights and can interfere with the trust and loyalty that are essential to the attorney-client relationship.

Lawyers must, therefore, ensure that the client is truly unable to maintain a normal attorney-client relationship and that such action is necessary to avoid risk of serious physical, financial or other harm. In instances where a lawyer seeks to have the court appoint a guardian or conservator, the lawyer may not also represent a family member or third-party who seeks to become the client’s guardian as that would create an impermissible conflict of interest (ABA Standing Committee on Ethics and Professional Responsibility Formal Ethics Opinion 96-404, (Aug. 2, 1996)).

The delicate balance

Representing clients with diminished capacity requires a delicate balance of advocacy, protection, and ethical judgment. Lawyers must navigate a complex landscape of ethical obligations, striving to respect their client’s autonomy while also safeguarding their well-being. By adhering to ethical guidelines and maintaining a client-centered approach, lawyers can fulfill their duties to represent these vulnerable clients effectively and ethically.

Sari W. Montgomery, a partner at Robinson, Stewart, Montgomery & Doppke in Chicago, represents attorneys in legal ethics and professional responsibility proceedings.

The commentary was originally published in Business of Law Digest.