An Attorney May Obtain Advance Consent to Take Protective Action on Behalf of a Client Who Later Becomes Incapacitated
By Anne M. Rudolph
In 2018, the Supreme Court rejected a proposed modified version of Model Rule 1.14 which would have allowed an attorney to take protective action if the attorney reasonably believed that the client had diminished capacity, was unable to act in the client’s own interest, and was at significant risk of physical, psychological or financial harm. Though the Supreme Court did not state its reason for the rejection, it is understood that the proposed rule was rejected because taking such protective action would have required an attorney to disclose a client’s confidential information in contradiction of the attorney’s duty under Business and Professions Code 6068, subdivision (e).