Dealing With a Client With Diminished
Capacity
by
Craig D. Klausing, Senior Assistant
Director
Minnesota Office of Lawyers Professional Responsibility
Reprinted
from Minnesota Lawyer (October 3,
2005)
The client establishes the objectives of the
representation while the lawyer generally has control over the means by which
those objectives are pursued. Rule 1.2
of the Minnesota Rules of Professional Conduct (MRPC) recognizes that reality,
providing that “a lawyer shall abide by a client’s decisions concerning the
objectives of representation” and that the lawyer “shall consult with the
client as to the means by which [the objectives] are to be pursued.”
What happens to the lawyer‑client relationship
when the client’s ability to make informed decisions regarding the
representation is impaired? How does the
lawyer distinguish client impairment from a poor decision that while flawed,
needs to be respected? Finally, if the
client is impaired, what remedial actions are available to the lawyer?
Little help
Rule 1.14 provides the lawyer with guidelines to
address those questions. Until its
recent amendment (effective Oct. 1), the rule was entitled “Client Under a
Disability” and provided that when a client’s ability to make adequately
considered decisions in connection with the representation was impaired, “the
lawyer shall, as far as reasonably possible, maintain a normal client-lawyer
relationship with the client.”
If the lawyer reasonably believed that the client
could not act in the client’s own interest, then “the lawyer may seek the
appointment of a guardian or take other protective action with respect to a
client.” The rule and the accompanying
comment provided little specific guidance, however, to the lawyer attempting to
determine when a client was under a disability or what protective action the
lawyer could undertake.
Take for example a client who has struggled with
serious depression throughout the course of a dissolution proceeding. Suddenly the client announces that the lawyer
should drop the client’s clearly meritorious (and clearly needed) claim for
maintenance. More ominously, the client
questions whether life is really worth living and perhaps everyone would be
better off if the client were dead. Did
the instruction to drop the maintenance claim represent an instruction
regarding the objectives of the representation with which the lawyer had a
professional obligation to comply? Could
the lawyer seek assistance for the client to prevent a possible suicide without
violating the professional obligation not to reveal client confidences or
secrets?
Before its recent amendment, Rule 1.14 and the
accompanying comment provided little assistance to resolve those
questions.
Lots of help
The amended Rule 1.14, now entitled “Client With
Diminished Capacity,” offers significantly more guidance to the lawyer. The amended rule more fully explains the
circumstances under which the lawyer may take reasonable protective
action. Such actions may be taken when
the lawyer reasonably believes the client “has diminished capacity, is at risk
of substantial physical, financial, or other harm unless action is taken” and
the client “cannot act in the client’s own interest.”
New language in the unofficial comment to Rule 1.14
also offers guidance in assessing diminished capacity. “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 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 the example above, the lawyer might ask the client
to explain the reasons for the decision to drop the claim for maintenance and
whether the client understands the ramifications of such a decision. The extent to which the client can articulate
reasons for the decision, or express an appreciation for consequences of the
decision, will assist the lawyer in determining the extent of any diminished
capacity.
In addition to providing assistance in evaluating the
extent of the client’s diminished capacity, the rule modifications offer
greater guidance to the lawyer regarding what remedial actions may be
undertaken.
New language to the rule provides that based on a
reasonable belief of diminished capacity resulting in substantial risk to the
client, the lawyer may take reasonable protective actions including “consulting
individuals or entities that have the ability to take action to protect the
client and, in appropriate cases, seeking the appointment of a guardian ad
litem, conservator, or guardian.”
This provides more direction than the earlier version
of the rule, which simply provided that the lawyer could seek the appointment
of a guardian “or take other protective action.” New language in the comment to the rule
identifies further protective measures the lawyer may take. They include “consulting with family members,
using a reconsideration period to permit clarification or improvement of
circumstances, using voluntary surrogate decisionmaking 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.”
Dealing with a client with diminished capacity
presents the lawyer with a difficult task of balancing the client’s right to
direct the client’s own case and the lawyer’s obligation to act in the client’s
best interest. While never easy to do,
the newly amended Rule 1.14 and accompanying comment provide the lawyer with
significant guidance in achieving that balance.