RULE 1.14 CLIENT UNDER A DISABILITY

Obsolete Date: 8/1/2006

When a client's ability to make adequately considered decisions in connection with the representation is impaired, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client.

COMMENT

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. However, when the client is a minor, or is impaired by reason of mental illness, mental deficiency, physical illness, or disability, chronic use of drugs, chronic intoxication, or other such cause, maintaining a normal client-lawyer relationship may not be possible in all respects. 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.

The law nevertheless recognizes that a minor, or a person who is impaired by reason of one or more of the above-described conditions, may be able to make independently 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, children as young as five or six years of age, and certainly those of ten or twelve, may be regarded as having opinions that are entitled to weight in legal proceedings concerning their custody. Also, some persons of advanced age can be quite capable of handling routine financial matters while needing special legal protection concerning major transactions.

A lawyer whose client suffers from a disability as described above is expected to maintain as normal a client-lawyer relationship as is possible under the circumstances.

In those situations where a legal representative has been appointed to act in behalf of the client, it should be kept in mind that the powers and duties of such representative vary depending upon the nature and extent of the client's disability. The lawyer in the course of representing the client should be cognizant of the powers and duties conferred upon the client's legal representative by the appointing authority as such enumeration of powers and duties will delineate what types of decisions the client may or may not make with regard to the client's own care and well-being, or concerning management of the client's property.

In those situations where a legal representative has not been appointed but in the lawyer's professional judgment such an appointment would serve the client's best interests, or is in fact necessary for the effective completion of a transaction involving the client's property, the lawyer should seek to have a legal representative appointed to act in behalf of the client. The nature and extent of the client's disability may be disclosed by the lawyer to the extent the lawyer reasonably believes necessary to obtain the appointment of a legal representative.

When considering the nature and extent of a client's disability and whether or not disclosure of the client's condition is necessary in the advancement of the client's interests, a lawyer may consult with an appropriate diagnostician.

Where the client is the legal representative as distinct from the person with the disability and a lawyer knows that the legal representative is acting adversely to the interests of the person with the disability, the lawyer may have an obligation to prevent or rectify the legal representative's misconduct. See Rule 1.2(d).

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