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Commonwealth of Massachusetts


July 2009

REPRESENTING CLIENTS WITH DIMINISHED CAPACITY

by
Constance V. Vecchione, Bar Counsel

In an article written six years ago, bar counsel posed the following hypothetical as typical of the issues facing lawyers with impaired clients:

A longtime client is 92 years old and his landlord has filed proceedings to evict him from the apartment that has been his home for almost fifty years. The client lives there alone and is intent upon staying there. His lawyer has observed the client’s health deteriorate in recent years. During the current representation, the lawyer has also concluded that the client’s mental faculties, and particularly his ability to make decisions, have deteriorated. Still, the client is adamant that he wants to remain in his home and resist the eviction.....Lawyers are frequently presented with this type of dilemma when they represent clients who, for any reason, have physical limitations on their ability to communicate or impairments because of mental disability or alcohol or drug abuse. It is usually not a problem when the lawyer agrees with the wishes of the client, but what may a lawyer do to assist the client when the client is incapable of expressing a decision or the lawyer considers the client’s expressed decisions to be harmful to the client?
D. Crane, “Who Decides for the Impaired Client,” August 2003.1

The question, then as now, was, apart from opposing the eviction, what steps could the lawyer take to assist the client without violating the obligation pursuant to Mass. R. Prof. C. 1.6 not to reveal confidential information obtained during the representation of the client. And the answer, then as now, requires consideration of Mass. R. Prof. C. 1.14.

Since the article was written, Mass. R. Prof. C. 1.14 and its comments were amended effective September 1, 2008. The rule, in its entirety, now states:

RULE 1.14 CLIENT WITH DIMINISHED CAPACITY

(a) When a client's ability 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 individuals or entities that have 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 necessary to protect the client's interests.

The revisions to the text of the rule largely follow the language in ABA Model Rule 1.14 as amended and do not make any substantive changes to the prior Massachusetts rule. Consistent with the model rule, the amendments do change the terminology used; in particular, the rule now refers to “diminished capacity” of the client rather than “disability.”

The basic principle remains that the lawyer shall, as far as reasonably possible, maintain a normal client lawyer relationship with a client with diminished capacity. And the rule continues to permit the lawyer to take “reasonable protective action” when an impaired client is at risk of substantial harm, including consulting family members or other individuals or entities that can take action to protect the client or, when appropriate, seeking the appointment of a legal representative such as a guardian or guardian ad litem. The types of protective measures available, and the considerations guiding the lawyer taking such action, are expanded upon in new Comment 5.

The primary changes come not from the text of the rule but with the adoption of several other new comments. Comments 9 and 10 relate to emergency legal assistance to nonclients with seriously diminished capacity and allow the lawyer to take legal action, make decisions, and disclose confidences only as necessary to protect the individual from serious and irreparable harm. In such circumstances, the lawyer has the same duties to the nonclient as she would have to a client under the Rules. Comment 10 states that the lawyer should disclose to a tribunal or other lawyer involved in the matter the nature of the lawyer’s relationship with the impaired individual and advises that the lawyer normally should not seek compensation for such emergency actions.

New Comment 7, unique to Massachusetts, specifically addresses the concerns raised by the Supreme Judicial Court in Care and Protection of Georgette, 439 Mass. 28 (2003). There, two adolescent minors sought a new hearing in a care and protection proceeding brought by the Department of Social Services. The basis of the motion was the children’s claim of ineffective assistance of counsel because their lawyer had failed to advocate their position that they wanted to live with their clearly unfit father. The lawyer had advised the court of his clients’ preference but opposed it and argued for a permanent award of custody to DSS.

The SJC rejected the children’s appeal because, among other reasons, the father would not have been granted custody regardless of how the children’s position was presented. Nevertheless, the Court, troubled by the lack of clear direction in Mass. R. Prof. C. 1.14 to counsel faced with clients whose desired goal was clearly against their best interests, referred the matter to its Standing Advisory Committee on the Rules of Professional Conduct.

Comment 7 is intended to address the decision-making process as to all clients with diminished capacity, whether adults or minors, and sets forth various options. The choices set out in Comment 7 come into play, however, only where the impaired client’s expressed preference “would place the client at risk of substantial harm.” Even if a client with diminished capacity has not made an adequately considered decision, counsel must advocate the client’s position if it does not put the client in jeopardy. The mere fact that the lawyer believes the client is wrong is not a sufficient reason for not following the client’s directions; clients are allowed to make bad decisions.

Where the client’s expressed preferences do put the client at risk of substantial harm, the lawyer’s task is more complicated. As a first step, if practicable and in the manner least intrusive to the client, the lawyer should determine whether it would help to consult family members or other appropriate persons or entities as allowed by Rule 1.14(b) and Comment 5. This option was present in the text of the rule before the enactment of Comment 7 and remains the initial action that the lawyer should consider in assisting the client. But if that tactic is not feasible or does not suffice to protect the client, the comment gives the lawyer four choices. The lawyer can:

  1. advocate the client’s expressed preferences regarding the issue;
  2. 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;
  3. request the appointment of a guardian ad litem or next friend to direct counsel in the representation; 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 and represent the client in accordance with that determination. (In this situation, if the matter is before a tribunal, Comment 7 further states that the lawyer “will ordinarily inform the tribunal of the client’s expressed preferences.”)
The options provided for in (ii), (iii), and (iv) are limited, however. According to Comment 7:
[T]here are circumstances where options other than the option in clause (i) above will be impermissible under substantive law or otherwise inappropriate or unwarranted. Such circumstances arise in the representation of clients who are competent to stand trial in criminal, delinquency and youthful offender, civil commitment and similar matters.
Thus, for example, the lawyer cannot override the decision by a legally competent but impaired client to plead guilty to criminal charges and accept incarceration, even where the lawyer believes the decision to be both unwise and injurious.

Comment 7 must also be read in conjunction with the last sentence of paragraph (c) of the rule, and with new Comments 3 and 8, before deciding which of the four options are open to the lawyer in any given situation. Comment 3 (which is a revised version of the ABA model comment) notes that, before disclosing confidential information, the lawyer should consider whether the person or entity to be consulted will act adversely to the client. Comment 8 (identical to the model comment) serves to emphasize Comment 3, stating that disclosure of the client’s condition could adversely affect the client’s interests, that information relating to the representation is protected by Rule 1.6, and that disclosure of confidential information without the client’s authorization is limited to persons or entities who will not act adversely to the client.

The Georgette situation, involving minor clients in family matters, is one circumstance in which a lawyer may consider choosing the fourth alternative, that is, where a lawyer whose client’s decision places the client at substantial risk of harm may decide to advocate for what the client would want if the client were not impaired. Attempts to override a legally competent adult client’s wishes should be a very rare occurrence, and lawyers should tread carefully in any matter, including those involving minors, before refusing to follow the client’s directions. This is particularly true, as in Georgette, where the case is before a court and the matter to be determined by the judge is the issue on which the client and counsel disagree. The nature of the adversary process may be sufficient in such circumstances to ensure that the judge is apprised of all the facts even if the lawyer argues for the client’s expressed preference.

Our hypothetical involving the eviction of the elderly client is an example of a case in which the lawyer’s alternatives probably have not changed with the adoption of Comment 7. There is nothing in the hypothetical suggesting that eviction is in the client’s interest. The true concern is for the client’s safety in his home because of his age and frailty.

If the lawyer decides that the client’s decisions as to issues that are part of the representation put the client at substantial risk of physical or financial harm, the lawyer is permitted to consult with the client’s family and social service providers and to disclose confidential information necessary to determine whether or not arrangements might permit the client to remain in the apartment. The lawyer here might reasonably decide that the lawyer’s concerns as to the client’s housing situation are part of the representation, allowing for outside consultation. However, the amended rule still would not permit the lawyer to provide any information concerning the client’s condition to the landlord or his counsel. Such disclosure, to persons who will act adversely to the client, is not consistent with Comments 3 and 8 or with the lawyer’s obligations to the client.

If discussions with family or with social service agencies do not resolve legitimate apprehensions as to the client’s safety, the lawyer, as a last resort and in an action separate from the eviction matter, might seek the appointment of a guardian ad litem, conservator, or guardian. The elderly tenant, however, remains the lawyer’s client. For that reason, although the lawyer may recommend a particular person as guardian, it would be a conflict of interest for the lawyer to represent that individual prior to appointment. The lawyer also would ordinarily be required to inform the court of the client’s views of both the proceedings and the choice of guardian, as well as any expectation that the lawyer might have of representing the guardian after appointment.


1 This article is intended as an update of the 2003 article and incorporates text from the earlier piece.



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