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Commonwealth of Massachusetts

August 2004


Linda G. Bauer, Assistant Bar Counsel

Elder law attorneys frequently face ethical issues arising out of their specialized practice of law. Often these questions are related to the diminished capacity of a client. This article will briefly explore some of the ethical issues that may arise when a lawyer suspects that a client has become incompetent or unable to make adequately considered decisions. These ethical issues may include questions of conflicts of interest due to the involvement of children, caregivers, or the like in consultations with the lawyer, or because of successive representations, or because the person paying for services may not be the client. Other ethical issues may be related to the scope of the attorney’s representation, communicating with unrepresented parties, and confidentiality issues.

The situation may develop in this way. A lawyer has represented a client for a number of years with respect to estate planning issues. The lawyer is contacted by the client’s adult child, who believes that the client is becoming incapacitated, and may be at risk of harm from a caretaker whom the child believes is obtaining undue influence over the client. The child asks the lawyer for assistance in taking steps to protect the client, including possibly obtaining the child’s appointment as guardian of the client. At about the same time, the lawyer receives a letter from another attorney, enclosing a form signed by the client discharging him. The new attorney is demanding that the lawyer turn over the client’s file to her, and has directed the lawyer not to contact the client.

A lawyer is obligated to withdraw from the representation of a client when discharged. Mass. R. Prof. C. 1.16(a)(3). A lawyer is also required to return the former client’s file and other property within a reasonable time following the client’s request. Mass. R. Prof. C. 1.16(e).

However, where the lawyer has reason to believe that the client may be incapacitated or under the undue influence of a third party, he is permitted to contact the client directly for the limited purpose of ascertaining if the client has actually discharged him, and to make a judgment about the client’s competency. Compare MBA Ethics Opinion 04-1 (January 22, 2004) (discussing a similar situation, and suggesting that one possible scenario would be for the lawyer to write to the new attorney and request a private meeting with the “former” client to confirm his instructions); New York State Bar Ass’n Comm. on Professional Ethics, Op. 775 (May 4, 2004) (concluding that lawyer may contact the former client directly in order to ascertain the client’s genuine wishes).

If the lawyer determines that the client has freely decided to terminate the representation, and wants him to return his file, the lawyer must do so. Mass. R. Prof. C. 1.16(d). If, however, the lawyer determines that the client has become incompetent or lacks sufficient capacity to communicate or to make adequately considered decisions regarding the representation, and he believes that the client is at risk of substantial harm (physical, mental, financial, or otherwise), Mass. R. Prof. C. 1.14, which addresses lawyers’ obligations to clients under a disability, comes into play. Under Mass. R. Prof. C. 1.14(b), the lawyer may continue the representation to the extent necessary to protect the client’s interests.

Moreover, while the lawyer is not required to continue the representation of an incapacitated client, Mass. R. Prof. C. 1.16(b) provides that withdrawal is permissible only if it can be accomplished “without material adverse effect on the interests of the client”, except in circumstances not specifically relevant to this discussion. Where the client “is at risk of substantial harm, physical, mental, financial, or otherwise” (see Mass. R. Prof. C. 1.14[b]), the better course of action would be for the attorney to continue the representation in order to take protective action on behalf of the client. See ABA Formal Ethics Opinion 96-404.

If the lawyer does not seek to withdraw, the proper scope of the representation must be considered. Mass. R. Prof. C. 1.2(a) provides that “[a] lawyer shall seek the lawful objectives of his or her client through reasonably available means permitted by law and these rules.” Mass. R. Prof. C. 1.4 requires a lawyer to keep a client reasonably informed about the status of a matter, and to explain a matter to the extent reasonably necessary to permit the client to make decisions regarding the representation. However, if the client has become incompetent or unable to communicate or make adequately considered decisions in connection with the representation, the client will be unable to provide direction to the lawyer as to the scope of the representation. Under these circumstances, the lawyer is authorized by Mass. R. Prof. C. 1.14(b) to take protective action on behalf of the client, but is not generally authorized to take control over every aspect of the incapacitated client’s life. See ABA Formal Ethics Opinion 96-404. See generally D. Crane, “Who Decides for the Impaired Client”, (August, 2003).

In seeking assistance for the client, the lawyer must take the least intrusive action possible, and “may consult only those individuals or entities reasonably necessary to protect the client’s interests and may not consult any individual or entity that the lawyer believes . . .will act in a fashion adverse to the interests of the client.” Mass. R. Prof. C. 1.14(b). The lawyer may contact various individuals or entities that may have authority to protect the client. Id. The lawyer is permitted to consult family members, even though the family member might be personally interested in the situation, if the lawyer reasonably believes that the family member will not act adversely to the client’s interest. Mass. R. Prof. C. 1.14, comment [3]. In seeking assistance for his client, the lawyer is permitted to reveal his client’s confidences, otherwise protected by Mass. R. Prof. C. 1.6, but only to the extent necessary to protect the client’s interests. Mass. R. Prof. C. 1.14(b).

In this factual scenario, the lawyer may contact the child for information regarding the client, but he should not agree to represent the child in the matter. The representation of the child would be directly adverse to the client, and might be materially limited by the lawyer’s responsibilities to the client. In addition, the client would not be able to consent to the conflict. Mass. R. Prof. C. 1.7(a) and (b). In speaking with the child, the lawyer must not state or imply that the lawyer is disinterested, and must clarify that he is not representing the child. Mass. R. Prof. C. 4.3(a). The lawyer should not give advice to the child, other than the advice to secure counsel. Mass. R. Prof. C. 4.3(b). See generally N. Kaufman, “Can We Talk: Communicating with Unrepresented Persons”, (November, 2003). Under these circumstances, the lawyer also may not accept compensation from the child to represent the client. To do so would require the client’s consent after consultation, and the client would be unable to give that consent. Mass. R. Prof. C. 1.8(f)(1).

Mass. R. Prof. C. 1.14(b) authorizes the lawyer to seek the appointment of a guardian for the client, but only as the last resort. The lawyer can file a petition asking the probate court to appoint a guardian or conservator for the client. However, the lawyer should not represent a third party who is seeking appointment as guardian or seek to serve as guardian. The representation of the potential guardian would be directly adverse to the representation of the client, and the client cannot consent to the representation because of incapacity. Mass. R. Prof. C. 1.7(a). To the extent that the lawyer believes that representation of the client is concluded, the lawyer still should not represent a person seeking appointment as guardian of the former client, because the guardianship proceeding is substantially related to the prior representation of the client, and the client, who has become incompetent, is unable to consent after consultation to the representation. Mass. R. Prof. C. 1.9(a); ABA Formal Ethics Opinion 96-404.

The lawyer also cannot use confidential information relating to the prior representation of the client to the disadvantage of the client, or for the advantage of the lawyer or a third party, such as the child, without the client’s consent after consultation. Mass. R. Prof. C. 1.9(c). However, the lawyer may, and in certain circumstances must, disclose information regarding the client’s preference for a particular guardian, as where the client has nominated a person to serve as guardian by the client’s durable power of attorney. See Guardianship of James A. Smith, 43 Mass. App. Ct. 493 (1997) (when a principal has nominated his future guardian by durable power of attorney, the Probate Court must appoint the person so nominated in the absence of good cause or disqualification, and the person so nominated is entitled to notice of a hearing to appoint a guardian of the principal).

If a guardian or other fiduciary is appointed to represent the client, the lawyer should look to the court-appointed fiduciary to make decisions on behalf of the client. See Mass. R. Prof. C. 1.14, comment [2]. The lawyer does not have a continuing ethical obligation to represent the ward’s interests after the guardian is appointed. Matter of Hocker, 439 Mass. 709 (2003) (Mass. R. Prof. C. 1.14 imposes no affirmative duty on a lawyer appointed by a judge during guardianship proceedings to continue to represent her client after the judge has adjudicated the client to be mentally incompetent, appointed a permanent guardian for the client, and vacated the appointment). However, the lawyer may have continuing ethical obligations to the client, including the obligation to preserve the client’s confidences pursuant to Mass. R. Prof. C. 1.6, subject to the exceptions enumerated in that rule.

The key to following the ethical rules discussed above is to focus on who is the client. Even when a client becomes incapacitated, the lawyer remains obligated to treat the client as a client under the ethical rules.

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