RULE 1.14 CLIENT WITH LIMITED CAPACITY

(a) When a client's capacity to make adequately considered decisions in connection with a representation is limited, 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 limited capacity, is at risk of substantial physical, financial, or other harm unless action is taken, and the client cannot adequately act in the client's own interest, the lawyer may take reasonably necessary protective action, 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 limited 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.

Comment

[1] A normal client-lawyer relationship exists in those situations where the client, when properly advised and assisted, is capable of making or communicating responsible decisions concerning the client's person or affairs. Maintaining a normal client-lawyer relationship may not be possible if the client is a minor. For example, a minor is prohibited by law from making a contract relating to real property or any interest therein, or relating to any personal property not in the minor's immediate possession or control. Maintaining a normal client-lawyer relationship also may not be possible if the client has limited capacity. Limited capacity may result from e.g. mental illness, mental deficiency, physical illness, or disability, chronic use of drugs, chronic intoxication, or other such cause.

[2] The law nevertheless recognizes that a minor, or a person with limited capacity may be able to independently make some, but not all, of the decisions necessary for that person's own care and well-being or for management of that person's property. For example, some children may have opinions entitled to weight in legal proceedings concerning their custody. Some persons are quite capable of handling routine financial matters while needing special legal protection concerning major transactions.

[3] The fact that a client is a minor or has limited capacity does not diminish the lawyer's obligation to treat the client with attention and respect. Even if the person has an appointed representative, the lawyer should as far as possible accord the represented person the status of client, particularly in maintaining communication. Appointed representatives include guardians ad litem, conservators, guardians, individuals appointed in a durable power of attorney or in an advanced health care directive.

[4] Family members or other persons may serve as representatives of a client with limited capacity in discussions with the lawyer. The lawyer must keep the client's interests foremost and, except for protective action authorized under paragraph (b), must look to the client, and not the representatives, to make decisions on the client's behalf.

[5] If the client has an appointed representative, the lawyer should ordinarily look to the representative for decisions on behalf of the client. The lawyer should be cognizant of the extent of the powers and duties conferred upon the client's appointed representative. In matters involving a minor, whether the lawyer should look to the parents as natural guardians may depend on the type of proceeding or matter in which the lawyer is representing the minor. Where the client is the appointed representative as distinct from the minor or the person with limited capacity and a lawyer knows that the appointed representative is acting adversely to the interests of the person with limited capacity, the lawyer may have an obligation to prevent or rectify the appointed representative's misconduct.

Taking Protective Action

[6] In determining the extent of the client's limited capacity, the lawyer should consider and balance such factors as: the client's ability to articulate the reason 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 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 is a minor or has limited 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; and consulting with support groups or existing surrogates, 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 client's known wishes or values, the client's best interests and the goals of minimizing the intrusion into the client's decisionmaking autonomy, maximizing client capacities and respecting the client's family and social connections.

[8] The lawyer should consider whether there is a need for an appointed representative to protect the client's interests. If a client is a minor or has limited capacity and has substantial property that should be sold for the client's benefit, effective completion of the transaction may require appointment of an appointed representative. In addition, rules of procedure in litigation sometimes provide that minors or persons with limited capacity must be represented by a guardian or next friend if they do not have a general guardian. In many circumstances, however, appointment of a representative may be more expensive or traumatic for the client than circumstances in fact require. Evaluation of such circumstances is a matter entrusted to the professional judgment of the lawyer. In considering alternatives, however, the lawyer should be aware of any law that requires the lawyer to advocate the least restrictive action on behalf of the client.

Disclosure of the Client's Condition

[9] Disclosure of the client's limited capacity could adversely affect the client's interests. For example, raising the question of limited capacity could, in some circumstances, lead to proceedings for involuntary commitment. Information relating to the representation is protected by Rule 1.6. Unless authorized to do so under Rule 1.6, 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 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.

Reference: Minutes of the Professional Conduct Subcommittee of the Attorney Standards Committee on 04/26/85, 08/23/85, 12/13/85 and 01/31/86; Minutes of the Joint Committee on Attorney Standards on 11/14/03, 08/06/04, 03/18/05, 06/14/05, 09/09/05.