The Massachusetts Judicial Branch

Supreme Judicial Court

Notice Inviting Comment

Proposed Revisions to Massachusetts Rule of Professional Conduct 1.14

NOTICE


The Supreme Judicial Court's
Standing Advisory Committee on the Rules of Professional Conduct
Invites Comments on Further Proposed Revisions to
Massachusetts Rule of Professional Conduct 1.14


The Supreme Judicial Court's Standing Advisory Committee on the Rules of Professional Conduct ("Committee") invites comments on its further proposal to revise Massachusetts Rule of Professional Conduct 1.14. In February 2007, the Committee published for comment a proposed revision of Rule 1.14, including majority and minority proposals to revise the comments to that rule. In response to the publication, the Committee received a number of helpful comments on the proposed rule and comments. After further discussion and consideration of the comments, the Committee has revised its earlier proposal and is publishing its revised proposal for further consideration and comment.

As with the Committee's earlier proposal, the Committee's proposed version of Massachusetts Rule of Professional Conduct Rule 1.14 is based on the current version of the American Bar Association's Model Rule 1.14 with minor changes to that rule. The explanations for these proposed changes from the model rule follow the proposed rule, below.

The Committee has also proposed revising the comments to Rule 1.14 to incorporate several comments from the ABA model comments and to address issues raised in Care and Protection of Georgette, 439 Mass. 28 (2003). In its discussions of the comments to the rule, the Committee had the benefit of thoughtful and detailed suggestions from judges of the probate and juvenile court and practitioners experienced in matters involving minors and other clients with diminished capacity, and as a result made a number of changes, described below, to the proposed comments.

The Committee was not unanimous in its recommendations as to the comments, particularly with regard to its response to issues raised in Georgette, supra. This notice includes the majority's proposed comments with explanations, and the dissenting statement. The Committee's proposal was adopted before the appointment of the Committee's newest members, Denise M. Regan and Marilynne R. Ryan, who did not take part in the deliberations on this proposal. The Committee welcomes all comments pertaining to the issues raised by its proposals, and will make recommendations to the Supreme Judicial Court after reviewing any further comments submitted.

The Supreme Judicial Court website has the following documents available for review: This notice including the proposed revised rule and comments and dissenting statement, and redlined copies of the Committee's proposed revisions to Rule 1.14 indicating how the Committee's proposal differs from American Bar Association Model Rule 1.14 and from current Massachusetts Rule 1.14.

Comments should be directed to The Standing Advisory Committee on the Rules of Professional Conduct, c/o Administrative Attorney Barbara Berenson, Supreme Judicial Court, John Adams Courthouse, One Pemberton Square, Boston MA 02108 on or before Friday, February 15, 2008. Comments may also be sent to: barbara.berenson@sjc.state.ma.us. 


The Standing Advisory Committee's Proposed Rule 1.14

Rule 1.14    Client With Diminished Capacity
(a) When a client's capacity to make adequately considered decisions in connection with a representation is diminished, whether because of minority, mental impairment or for some other reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client.

(b) When the lawyer reasonably believes that the client has diminished capacity that prevents the client from making an adequately considered decision regarding a specific issue that is part of the representation, 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 in connection with the representation, 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 guardian ad litem, conservator or guardian.

(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.

 

Explanations for Changes in the Rule

    The Committee's proposed version of paragraph (a) adopts the terminology from the ABA Model Rule 1.14, particularly references to diminished or impaired capacity rather than a disability.

    Paragraph (b) is based on the model rule provisions but with two changes. The addition of the phrase "that prevents the client from making an adequately considered decision regarding a specific issue that is part of the representation" is intended to define the initial threshold for when the actions authorized in paragraph (b) will apply. Although the committee believed that the phrase was implied by the language of paragraph (a), it chose to insert the phrase for clarity. The further addition of the phrase "in connection with a representation" in paragraph (b) is intended to make explicit that the lawyer would take protective action in connection with the representation. In the Committee's earlier proposal, paragraph (b) ended with a phrase taken from the current rule, but upon consideration the Committee decided that the point was adequately covered in the revised comments.

    Paragraph (c) is also based on the model rule provisions.


Comments to Rule 1.14

[1] The normal 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 has diminished 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.

[2] The fact that a client has diminished capacity does not lessen the lawyer's obligation to treat the client with attention and respect. Even if the person has a legal representative, the lawyer should as far as possible accord the represented person the status of client, particularly in maintaining communication.

[3] The client may wish to have family members or other persons participate in discussions with the lawyer. The lawyer may also consult family members even though they may be personally interested in the situation. Before the lawyer discloses confidential information of the client, the lawyer should consider whether it is likely that the person or entity to be consulted will act adversely to the client's interests. Decisions under Rule 1.14(b) whether and to what extent to consult or to disclose confidential information are matters of professional judgment on the lawyer's part.

[4] If a legal representative has already been appointed for the client, the lawyer should ordinarily look to the representative for decisions on behalf of the client. If the lawyer represents the guardian as distinct from the ward, and is aware that the guardian is acting adversely to the ward's interest, the lawyer may have an obligation to prevent or rectify the guardian's misconduct. See Rules 1.2(d), 1.6, 3.3 and 4.1.


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 normal 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 and 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 whether a client has diminished capacity that prevents the client from making an adequately considered decision regarding a specific issue that is part of the representation, 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 appropriate circumstances, the lawyer may seek guidance from an appropriate diagnostician.

[7] If a client is unable to make an adequately considered decision regarding an issue, and if achieving the client's expressed preferences would place the client at risk of a substantial harm, the attorney has four options. The attorney may:


i. advocate the client's expressed preferences regarding the issue;

ii. advocate the client's expressed preferences and request the appointment of a guardian ad litem or investigator to make an independent recommendation to the court;

iii. request the appointment of a guardian ad litem or next friend to direct counsel in the representation; or

iv. determine what the client's preferences would be if he or she were able to make an adequately considered decision regarding the issue (a "substituted judgment" determination) and represent the client in accordance with that determination.


However, there may be circumstances where some of the options identified above will be inappropriate or unwarranted. Such circumstances will often arise in the representation of clients in criminal, delinquency and youthful offender, civil commitment and similar matters.

Counsel should follow the client's expressed preference if it does not pose a risk of substantial harm to the client, even if the lawyer reasonably determines that the client has not made an adequately considered decision in the matter.


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 legal representative. 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.


Explanations for the Proposed Comments

The comments reflect the different terminology of Rule 1.14(a) and incorporate several of the model comments.

Comment 1: The comment is taken from the ABA model comment, with minor changes to make the language of the first sentence correspond more closely to the language of the rule. Several of the comments received by the Committee noted that the rule itself defines minority and mental impairment as forms of diminished capacity to make an informed decision. The Committee's changes in this and other parts of the comments were intended to adopt uniform terminology to apply to adults and minors when referring to diminished capacity.

Comment 2: The changes conform to ABA model comment 2, with a minor modification to confirm the language more closely to that of the rule. The effect of the changes is to delete the sentence stating that a lawyer must often act as de facto guardian. The rule itself and subsequent comments are more specific and more helpful than this term of unknown legal definition.

Comment 3: The comment has been rewritten. The first sentence is taken from the ABA model comment. The second sentence of the ABA model comment, relating to the effect on the attorney client privilege, was deleted as the Committee believes that it is not appropriate for a comment to address issues of substantive law of privilege. The third sentence of the ABA model comment was rewritten, based in part on language from the current version of the Massachusetts rule, intended to remind attorneys to be cautious about disclosing confidential information to those the attorney may reasonably need to consult and the expectation that the attorney will exercise professional judgment in determining the appropriate course to follow.

Comment 4: The current comment was expanded to include the first sentence of the ABA model comment and to cross reference additional rules relating to the duty and right to disclose confidential information to rectify a client's misconduct under the circumstances addressed in those rules. The second sentence of the ABA model comment was not included as it appeared not to be germane to the thrust of the comment.

Comments 5, 6 and 8: Comments 5 and 8 are identical to the ABA model comments. Comment 8 addresses in the context of disclosing a client's impairment some of the same considerations addressed in comment 3, but the Committee favored retaining the language of ABA model comment 8 in spite of the overlap with comment 3. Comment 6 is also taken from the ABA model comment, but the first phrase was modified to conform the language more closely to that of the rule.

Comment 7: The Committee reviewed the suggestions made to the redrafting of its original proposed comments 7 and 9 and concluded that it would rewrite them as a new comment 7. The Committee had the benefit of many helpful suggestions on issues that counsel should consider when representing minors in care and protection cases, in delinquency and youthful offender cases, and in mental health proceedings. In particular, the Committee appreciated the detailed suggestions from the Committee for Public Counsel Services on these subjects.

In its earlier proposal, the Committee had included the appointment of a guardian ad litem as a solution to many problems where a minor is involved. Judges and practitioners pointed out that the limited resources and time available make the appointment of a guardian ad litem impractical in many circumstances. For this reason, the Committee agreed to follow the suggestions of several of the commentators to spell out several alternatives available to counsel, including as one option a request for the appointment of a guardian ad litem, but noting that there are situations in which some of the alternatives are not appropriate.

The Committee also carefully considered whether to incorporate some of the detailed suggestions intended to guide counsel in these circumstances, but ultimately decided that such detailed guidance was not necessary and risked negative implications for other situations not covered in such detail. Moreover, detailed guidance may become out of date as practice evolves. Instead, the Committee based comment 7 on language suggested by the Boston Bar Association and modified it based on suggestions from other commentators.

Comments 9 and 10: The committee had originally considered and rejected the ABA's model comments 9 and 10 relating to emergency legal assistance as inappropriate. However, upon review of the comments, particularly the helpful comments from the Boston Bar Association, the Committee agreed that in the limited circumstances when these comments may be applicable they would perform a useful function and so included them.

Separate Dissenting Statement of Constance V. Vecchione  

I am writing separately both as a member of the Advisory Committee and on behalf of the Office of Bar Counsel. I believe that new Comment 7 in the committee's revisions to its original proposals on Mass. R. Prof. C. 1.14 is inconsistent with a lawyer's obligations to clients with diminished capacity.

The impetus for amending Rule 1.14 was the mandate from the Supreme Judicial Court in Matter of Georgette, 439 Mass. 28 (2003), to revise the rule to provide additional guidance to lawyers representing minors in child dependency proceedings. The thorniest issue presented was how to define the lawyer's obligations to a child whose directives, in the lawyer's judgment, posed a substantial risk to the child. Georgette, for example, involved a claim that the lawyer for an adolescent ignored her directive to advocate for her return to an abusive father.

The committee's proposed revision to Rule 1.14 in November 2006, and specifically Comment 9 of that version, addressed this precise question. The committee adopted a "client-directed" approach that called for counsel to follow a child's expressed preferences when the child was able to make an "adequately considered decision." When the child was not able to make an "adequately considered decision" and expressed a preference placing the child at substantial risk, the lawyer was permitted but not required to ask for appointment of a guardian ad litem or next friend and directed to continue to represent the child's expressed wish. When the lawyer represented a client "incapable of verbalizing a preference," the lawyer was advised to "make a good faith effort to determine the child's preference and advocate for that position or request appointment of a guardian ad litem or next friend to direct the lawyer." (Emphasis supplied.)

Comment 9 of the November 2006 revision preserved clear, or at least clearer, roles for the lawyer and the guardian ad litem. The lawyer advocated for the client's preferences whether or not there was a guardian ad litem. Determination of best interests was left to a guardian ad litem if one was appointed. Only when the child was incapable of verbalizing a preference was the lawyer allowed to make a judgment as to what the client would want and advocate for that position. Comment 9 also ensured that the child's expressed preference was communicated to the court.

Comment 7 in the new proposal replaces Comment 9. The comment has been expanded to apply to all clients with diminished capacity, whether adults or children; to increase lawyer's discretion in making his or her own determinations about the client's best interests; and to diminish court supervision over the lawyer's exercise of that discretion. The revisions reduce client autonomy without providing necessary guidance to lawyers on exercising their increased discretion.

Comment 7 addresses circumstances in which the client is unable to make an adequately considered decision regarding an issue and the client's expressed choice puts the client at risk of substantial harm in the judgment of the lawyer. The comment provides four alternatives that are deemed equally acceptable: (1) advocate the client's expressed preferences; (2) advocate the client's preferences and request the appointment of a GAL or investigator to make an independent recommendation to the court; (3) request the appointment of a GAL or next friend to direct counsel; or (4) "determine what the client's preferences would be if he or she were able to make an adequately considered decision regarding the issue (a `substituted judgment' determination) and represent the client in accordance with that determination."

Option 1 was recommended in the original version of the proposed rule, and I take no issue with it as applied to any client. I also take no issue with option 2 as applied to minors. When applied to adults, however, option 2, as well as option 3, is too expansive; both options 2 and 3 lack the qualifying language of Rule 1.14(b) that is necessary to protect persons who are presumptively able to carry on their own affairs. While minors are legally considered incapable of making certain decisions and customarily act through a parent or guardian, adults are presumed capable of making decisions. The decision to seek a guardian for an adult is an extreme step that should be taken only in an emergency situation, as described in the comments to the committee's November 2006 proposal.

Option 4 raises additional problems, whether applied to children or adults. First, the phrase "substituted judgment" is a term of art that does not properly apply to a client who is able to verbalize a preference. Substituted judgment decisions are generally limited to either the withholding or forced administration of medical treatment and apply to persons adjudicated incompetent and incapable of expressing a preference. See Superintendent of Belchertown State School v. Saikewicz, 373 Mass. 728, 751-752 (1977) ("substituted judgment" permitted in deciding that "profoundly retarded" individual who had never been able to communicate would decline painful chemotherapy for fatal condition); Guardianship of Doe, 411 Mass. 512, 513 (1992). "Substituted judgment" is not appropriate for a client who is able to articulate a preference.

Comment 7 is actually intended to allow the lawyer to make a determination concerning the client's "best interests" when the lawyer considers the client incapable of making an adequately considered decision and believes that the client's expressed preferences pose a risk of "substantial harm," a term not otherwise defined. See Matter of M.R., 135 N.J. 155, 168 (N.J. 1994), drawing the distinction between "best interests" and "substituted judgment." Accord, In re K.I., B.I., and D.M., 735 A.2d 448 (D.C. App. 1999). Acting in the best interests of the client is not the same as "substituted judgment." While the S.J.C. suggests in the concluding paragraph of Georgette that allowing the attorney "to substitute judgment for the child...most closely resembles a normal attorney-client relationship," substituting judgment is not equivalent to "substituted judgment." The appropriate question is not whether the attorney can determine what the client would decide if capable of doing so, but whether and when the attorney can advocate for a result contrary to a client's expressed position based on (what the attorney views as) the client's best interests, Adoption of Erica, 426 Mass. 55, 63-64 (1997).

Second, I object to the omission in options 3 and 4 of any requirement that the lawyer at least inform the court of the client's expressed preferences. Although this entire issue is fraught with disagreement, the one area of seeming accord is that the lawyer who chooses to disregard his client's directives must, at a minimum, inform the court of them. See Georgette at p. 45, expressing explicit approval as consistent with Rule 1.14 of the then-existing CPCS standards, which required disclosure to the court when such decision-making occurs on behalf of children. Disclosing the client's preferences to the court permits the court to explore potential conflicts of interest and take appropriate steps to protect the client's autonomy. Failure to disclose has the opposite effect.

Third, option 4's routine expansion to adults of authorization to substitute the attorney's decisions on the client's best interests for the client's stated position goes beyond the mandate of Georgette and is unsupported by case law. Matters not involving minors most commonly cited for this proposition tend to arise from the very special circumstances of a lawyer's raising the issue of a criminal client's competence to stand trial, against the wishes of the client. See Restatement (Third) of The Law Governing Lawyers § 24, comment (d) (2007).

Finally, the apparent broad discretion granted by Comment 7 is hedged, perhaps necessarily, by its final provision advising that there may be circumstances in which some of the options are inappropriate, including "criminal, delinquency and youthful offender, civil commitment and similar matters." Thus, lawyers are left where we found them when we started our revision of the rule, with no better direction as to what is permitted and when.

The committee frames its change of position in Comment 7 to permit lawyers to determine the client's best interests as a reflection of widespread concern among judges and advocates as to the impracticality of appointing GALs. There is no requirement in the original proposal that a lawyer seek a guardian ad litem. That action, which threatens to expose confidential client information and is against the client's expressed interests, should be taken only in extreme circumstances.

Rule 1.14 addresses the lawyer's minimum obligations in representing a client. Determination of a person's best interests is generally the province of a guardian ad litem. See Donald N. Duquette, Legal Representation for Children in Protection Proceedings: Two Distinct Lawyer Roles are Required, 34 Fam.L.Q. 441 (Fall 2000). Rule 1.14 is not the forum for expanding or explicating the lawyer's role as a GAL. The committee accepted the ABA amendment to Model Comment 2 removing language that had permitted the lawyer to act as the client's "de facto guardian," but proposed Comment 7 affords the attorney even more latitude to substitute the attorney's view of the client's interests for the client's stated preferences.

I continue to support adopting the committee's November 2006 draft of Rule 1.14 and comments as these relate to the issues raised in Matter of Georgette. In the alternative, it may be the better course to adopt ABA Model Rule 1.14 and comments without revision.