By Edward McIntyre
Many jurisdictions adopted a version of ABA Model Rule 1.14 to give guidance when lawyers must confront obligations to a client with diminished decision-making capacity. Our Rules Revision Commission submitted a proposed version of rule 1.14 to the Supreme Court that attempted to reconcile the Model Rule’s approach with unique California obligations, including our obligations of confidentiality.[1] The Court did not adopt proposed rule 1.14. The need for guidance, however, about ethical obligations to clients with diminished capacity remains. The State Bar’s Committee on Professional Responsibility and Conduct (COPRAC) stepped forward with a recent formal opinion.[2]
Four issues are central to representing clients with diminished capacity: (1) our duty to maintain, to the extent possible, a normal lawyer-client relationship, as our competence, communication, confidentiality, loyalty and nondiscrimination rules require; (2) our obligation to make judgments relating to the client’s capacity;[3] (3) our authority to take protective action on the client’s behalf; and (4) a competent client’s advanced consent to disclosure of confidential information if future diminished capacity exposes the client to harm that disclosure might prevent.
Nothing in the rules or State Bar Act defines “capacity.” The Probate Code, however, does.[4] Thus, the concept of diminished capacity intersects with the rules whenever the rules involve a decision reserved to the client—e.g., formation and termination of the lawyer-client relationship; or rules requiring a client’s informed consent;[5] or the representation’s objectives or “substantial rights.”[6]
Competence
When a client shows signs of diminished capacity, our duty of competence may require making judgments about capacity, including associating or consulting a lawyer with more experience, or even, with the client’s consent if required, consulting experts in other professions.
Communication
We have the obligation to keep a client “reasonably informed” about “significant developments relating to the representation.” A client with diminished capacity, however, may have greater difficulty understanding the client’s own interests or experience more difficulty communicating them.
Loyalty
Our duty of loyalty requires acting solely in the client’s interest, including exercising independent judgment uninfluenced by our own or a third partu’s interests. When a client’s capacity is in doubt, our duty of loyalty continues to require that we focus on our responsibility to ensure that a chosen course of conduct carries out the client’s wishes—and that the client understands available options and their legal and practical implications.
Taking Protective Action
Our reasonable belief a client is incapacitated doesn’t necessarily terminate our authority to take protective action in the client’s best interest. But, duties of confidentiality and loyalty may limit what we can do—information about the client’s diminished capacity will likely be confidential.[7] Thus, a lawyer who wishes to disclose confidential information about a client’s capacity must first obtain the client’s informed consent. Furthermore, our duties of confidentiality and loyalty combine to bar us from initiating a conservatorship action without the client’s informed consent—even if facts establish the conservatorship standard and the action would be in the client’s best interest.
Advance Consent
Because of client confidentiality strictures, a competent client may wish to ensure, in the event of future diminished capacity, that we will be able to disclose relevant confidential information if necessary to protect the client from substantial harm. How? Give advance written consent to that disclosure on specified conditions.[8]
Not a comfortable conversation to have with any client—but perhaps, in certain circumstances, necessary ultimately to protect the client’s interests, our overriding obligation.
[1] Business and Professions Code section 6068, subdivision (e)(1) and rule 1.6.
[2] State Bar Formal Opn. 2021-207. It merits careful reading, especially for lawyers who represent individual clients.
[3] We generally lack the expertise to diagnose a client’s mental condition, but, based on observation, experience, perhaps consultation with experts, we can form a reasonable belief that a client’s capacity has diminished.
[4] Probate Code sections 812 (for decisions other than those related to testamentary matters and consent to health care) and 6100.5 (marital and testamentary capacity).
[5] For example, rules 1.5(a)(2); 1.6(a), 1.7(a) & (b); 1.8.1; 1.8.2; 1.8.6; 1.8.7.
[6] Rule 1.2.
[7] Bus. & Prof. Code section 6068(e)(1) and rule 1.6 bar disclosure of “information gained in the professional relationship that the client has requested be kept secret or the disclosure of which would likely be harmful or embarrassing to the client.” (State Bar Formal Opn. 1989-112, at p. 2.
[8] Rule 1.2, Comment [2] (advance authorization “to take specific action on the client’s behalf without further consultation”).