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Legally Speaking


Issue: December, 2007
Author: John M. Burman

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Ethically Speaking - Prospective Clients and Clients with Diminished Capacity

A common reason that a person needs legal representation is that the person is not legally able to act for himself or herself. The person may be a minor, who until reaching the age of majority is legally precluded from doing some things alone: “Upon becoming eighteen (18) years of age, an individual reaches the age of majority and as an adult acquires all rights and responsibilities granted or imposed by statute or common law, except as otherwise provided by law.” Or the person may be incapacitated by old age or a physical, emotional, or mental disorder. Whatever the reason for the disability, the person may need someone to act on his or her behalf, at least in some respects, and lawyers are often called upon to assist in facilitating that end. As discussed below, entering into an attorney-client relationship with a person who lacks the capacity to enter into a contract (the attorney-client relationship in Wyoming is considered to be contractual) is problematic, though it can, and often must, be done.

Even if a prospective client has the requisite capacity to enter into an attorney-client relationship, problems may arise later. A client may become incapacitated after the representation has begun. All of us, for example, either die or grow older. A common consequence of growing older is losing one’s mental faculties, at least in part. A client in the prime of life may fall ill or become the victim of an accident, either of which may render a once competent individual unable to act on his or her behalf in some respect(s). If that occurs, an attorney’s responsibilities shift. How they shift and how an attorney should behave are also discussed below.

Changes to the Rules of Professional Conduct
The Wyoming Rules of Professional Conduct (“the Rules”) have long contained provisions relating to an attorney’s obligations to a client who lacks capacity. The new Rules, and the ones previously in effect, both contained a Rule (1.14) devoted to the issue. New Rule 1.14, however, has been revised and expanded, giving additional direction to lawyers who represent an incapacitated person. Not surprisingly, this column addresses an attorney’s duties under the new Rule 1.14, with the goal of informing attorneys about the changes and the new possibilities that are open to them given those changes.

Unfortunately, neither the old Rules nor the new ones discuss the formation of an attorney-client relationship with any client, let alone a client who lacks capacity. As the Scope section of the new Rules notes, “for purposes of determining the lawyer's authority and responsibility, principles of substantive law external to these Rules determine whether a client-lawyer relationship exists.” We turn first, therefore, to a consideration of the “substantive law” in Wyoming to determine how an attorney should form an attorney-client relationship with a prospective client who lacks capacity.

Prospective Clients with Diminished Capacity
One of the general prerequisites to entering a contract is that the person have the capacity to do so. Capacity is not a static condition. Rather, “[c]apacity to contract may be partial and its existence in respect of a particular transaction may depend upon the nature of the transaction or upon other circumstances.” Several categories of persons are generally thought to lack the capacity to contract: (1) persons under a guardianship; (2) minors; (3) persons who have a mental disability; and (4) intoxicated persons. Those categories are not, however, absolute. A person within one of them may have the capacity to enter into a contract, at least for some things, and, therefore, have the capacity to enter into an attorney-client relationship. The reason is that incapacity is often not total. It may be partial. Accordingly “[i]ncapacity sometimes relates only to particular types of transactions; on the other hand, persons whose capacity is limited in most circumstances may be bound by particular types of transactions.”

The question is whether the person has the capacity to understand what he or she is doing. The Wyoming Supreme Court has held, for example, that while minors generally “have the right to repudiate their contracts,” they “have [the] capacity to contract . . . when of sufficient age to understand what they are doing . . . .”

As an attorney-client relationship is contractual, a prospective client must have the capacity to form such a relationship. “Without client capacity to enter into such a relationship, the conventional agency paradigm suggests that the relationship does not exist.” Since capacity is a requirement, what should a lawyer who has concerns about a prospective client’s capacity do?

In the early nineties, a conference was held entitled “Ethical Issues in Representing Older Clients.” The conference resulted in the appointment of a working group to address the issue of determining the capacity of prospective elderly clients where capacity was often a consideration. The group consisted of “private practitioners, publicly-funded legal services lawyers, academics, a judge, a geriatric physician, and others.” It developed guidelines for lawyers to use in assessing capacity:

1. Consider and balance factors including but not limited to the following:

a. The client's ability to articulate reasoning behind the decision;
b. The variability of the client's state of mind;
c. The client's ability to appreciate consequences of the decision;
d. The irreversibility of the decision;
e. The substantive fairness of the decision;
f. The consistency of the decision with lifetime commitments of the client.

2. Speak with the client alone;

3. Avail himself or herself of educational opportunities to understand and address capacity issues.

Applying the guidelines suggested above will not always answer the question of whether a person has capacity, and a lawyer is not, of course, generally qualified to make a final determination about capacity. That is a question “that go[es] beyond strictly legal questions [and is] in the domain of another profession.” Nevertheless, the answers to many questions about client competence will be clear, one way or the other. Accordingly, a lawyer should “talk to the client in private at some point or points early in this process to assess capacity, to establish clearly the attorney-client relationship, and to identify the client's wishes and expectations. During such a meeting, a lawyer can also apply the competency guidelines.

If applying the guidelines leaves some doubt about a potential client’s capacity, a lawyer may need to consult with an appropriate professional. The ultimate question will always be the same. Is the prospective client able to articulate appropriate goals for the representation? If so, the lawyer can take it from there. If not, the attorney may not enter into an attorney-client relationship with the prospective client. Such a relationship can be formed only upon order of a court or the agreement of a person legally authorized to act on behalf of the person, such as a guardian.

Representing a Client with Diminished Capacity
As discussed above, a prospective client must have the capacity to form an attorney-client relationship (or one may be formed by court order or a person who is legally authorized to act on behalf of the prospective client, such as a guardian or parent). The formation of the relationship does not, however, eliminate the attorney’s obligations regarding client capacity. A client who has the capacity to form an attorney-client relationship may lose that capacity with profound consequences for the relationship.

The heart of the attorney-client relationship is “the assumption that the client, when properly advised and assisted, is capable of making decisions about important matters.” Accordingly, having a client who has diminished capacity places a lawyer in a difficult position. Fortunately, the Rules provide some guidance.

Rule 1.14 is entitled “Clients with diminished capacity.” It both requires and empowers the lawyer to take certain steps.

First, the Rule defines the problem. A lawyer has a client whose capacity “to make adequately considered decisions in connection with a representation “is diminished.” The reason for the diminished capacity is immaterial. It may be “because of minority, mental impairment or for some other reason.”

When a lawyer has a client with diminished capacity, the lawyer has an important obligation. He or she “shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client.” Maintaining “a normal client-lawyer relationship” means that the lawyer has the same agency and fiduciary duties that he or she owes to any other client, including the duties of loyalty, confidentiality, and communication. The lawyer must, therefore, continue to represent the client, to the extent reasonably possible, as before. That is, the lawyer must allow the client to be involved in all important decisions about the representation and preserve the client’s reasonable expectations of loyalty and confidentiality.

Although the Rule requires a lawyer to try to maintain a “normal” attorney-client relationship, it recognizes that the situation is different when a client has “diminished capacity,” and the lawyer’s role has to shift. The important shift is to allow the lawyer to take “protective action” in some circumstances.

When a lawyer “reasonably believes” three things, the lawyer may take protective action. First, the lawyer must reasonably believe that the client “has diminished capacity.” Second, the lawyer must reasonably believe that the client is “at risk of substantial physical, financial or other harm unless action is taken.” Finally, the lawyer must reasonably believe that the client “cannot adequately act in the client's own interest.” If a lawyer reasonably believes that all three elements are present, the lawyer “may take reasonably necessary protective action.”

The Rule suggests two types of protective action: (1) “consulting with individuals or entities that have the ability to take action to protect the client,” and (2) “in appropriate cases, seeking the appointment of a guardian ad litem, conservator or guardian.”

With whom, when, and how to consult will vary. The commentary notes that consultation may be with “family members; [it may include] 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.” Furthermore, the inclusion of other persons in consultations with a client who has diminished capacity should not destroy the attorney-client privilege. Although the presence of a third-person normally defeats the privilege, if that person’s presence is “necessary to assist in the representation, the presence of such persons generally does not affect the applicability of the attorney-client evidentiary privilege.”

Seeking the appointment of someone to act on behalf of a client is a significant step, which may irretrievably alter the attorney-client relationship (the client may regard the attorney as an adversary, not an ally). If the client has substantial assets, or if the client is a party to a lawsuit, the only alternative may be the appointment of a guardian, conservator or guardian ad litem. In other circumstances, however, “appointment of a legal 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.”

Seeking the appointment of a legal representative for a client will, of course, require the disclosure of the client’s condition to the court (and others). While permissible, such disclosure “could adversely affect the client's interests,” and a lawyer should proceed with caution. Whatever the disclosure, it should be no greater than necessary to protect the client’s interests.

Confidential information relating to the representation of a client with diminished capacity is protected from disclosure by Rule 1.6(a). When taking protective action, however, a 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.”

Paragraph (d) of Rule 1.14 addresses a lawyer’s duties when acting as a guardian ad litem (GAL). In such cases, the client cannot, by definition, make informed decisions about the representation. The Rule reiterates that “[a] lawyer appointed to act as a guardian ad litem represents the best interests of that individual, and shall act in the individual’s best interests even if doing so is contrary to the individual’s wishes.” The role of an attorney as a GAL is a topic unto itself and will be addressed later in this column. For now, it shall suffice to say that a lawyer who has a client with “diminished capacity” is not a GAL and should proceed under Rule 1.14. (If a lawyer is acting as a GAL, Rule 1.6 allows that lawyer to disclose otherwise confidential information “to protect the best interests” of the individual for whom the attorney has been appointed to act as GAL. As with any disclosure of confidential information, a disclosure to protect the best interests of an individual “should be no greater than that which the lawyer reasonably believes necessary to protect the individual’s best interests.”)

It will happen. A lawyer will be asked to represent a person who appears to or clearly does lack the capacity to enter into a contract, and therefore lacks the capacity to form an attorney-client relationship. Or a lawyer will be representing a client who had the capacity to enter the attorney-client relationship, but has lost that capacity for some reason. Accordingly, the question is not whether either of the foregoing will happen, but what to do when one of them does.

Entering into an attorney-client relationship is not governed by the Rules of Professional Conduct. Rather, it is subject to the substantive law (of Wyoming). Accordingly, the question for a lawyer who has concerns about a prospective client’s capacity is whether the prospective client is able to articulate appropriate goals for the representation. If so, the relationship may be formed. If not, the lawyer should consult with an appropriate professional to determine how to proceed.

If representation has begun, an attorney may take “protective action” if he or she “reasonably believes” the client “has diminished capacity,” the client 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 “protective action” suggested by the Rule is “consulting with individuals or entities that have the ability to take action to protect the client,” or “in appropriate cases, seeking the appointment of a guardian ad litem, conservator or guardian.” In either event, the lawyer is “impliedly authorized . . . to reveal information about the client, but only to the extent reasonably necessary to protect the client's interests.”

The suggested protective action and the implied authorization to reveal confidential information were not part of old Rule 1.14, and they represent important guidelines for lawyers faced with the daunting, but not infrequent, task of representing clients with diminished capacity.

John M. Burman teaches professional responsibility at the University of Wyoming College of Law. If there are issues you would like to see addressed in this column, Professor Burman may be reached by e-mail at jmburman@uwyo.edu.

The views and opinions expressed and included in "Ethically Speaking" are those of the author only and do not constitute an opinion, finding or viewpoint, official or unofficial, of the Wyoming State Bar or the Board of Professional Responsibility.

Copyright © 2007 – Wyoming State Bar