Advising Clients with Diminished Capacity – Part 1

Two recent news stories have placed in the headlines the issue of how lawyers should advise clients with diminished capacity to make legal decisions. The first is the publication of Harper Lee’s novel, “Go Set a Watchman,” an event that has occasioned caustic criticism of Lee’s lawyer, Tonja Carter.

The second is Bill Dedman’s investigation of the life and death of the reclusive heiress Huguette Clark, which culminated in the publication of his excellent book “Empty Mansions.” Clark’s reclusive lifestyle has been laid open to the public in the wake of a lawsuit filed by family members who claimed she did not have the capacity to execute her last will and testament.

The Harper Lee and Huguette Clark stories shed light on a little explored Rule of Professional Conduct, Rule 1.14, which sets forth guidelines for lawyers to follow when handling clients with diminished capacity to make legal decisions.

In this post, I’ll discuss the basic contours of Rule 1.14, as well as the meaning of diminished capacity. In a subsequent post, I’ll discuss the basic analysis lawyers can use to assess diminished capacity, and what they should do when confronted with a client who has diminished capacity.

The Rule

Though it may be surprising at first blush, the first command of Rule 1.14 is that when a client’s “capacity to make adequately considered decisions” is diminished, the lawyer must maintain a normal client-lawyer relationship with the client, as far as reasonably possible. In other words, you can’t run for help at the first sign of diminished capacity.

When a lawyer reasonably believes that the client has diminished capacity, however, the lawyer may take reasonably necessary protective action, provided that the client is at risk of “substantial physical, financial or other harm” unless action is taken. The lawyer can consult with individuals and entities that have the ability to protect the client, and in extreme cases can seek court intervention or the appointment of a guardian or conservator. The attorney is allowed to reveal confidential information in seeking help for the client, but only to the extent reasonably necessary to protect the client’s interests.

In short, the command of Rule 1.14 is:

  • Maintain a normal client-lawyer relationship to the maximum extent possible
  • Assess the client’s capacity
  • If you reasonably believe the client has diminished capacity AND you reasonably believe that the client is at substantial risk of harm, you can take reasonable necessary protective action
  • You should always remain cognizant of client confidentiality, especially when seeking assistance for a client with diminished capacity

What is Diminished Capacity?

We tend to think of diminished capacity in its most basic form as the kind of dementia or Alzheimer’s that older clients may face. That is certainly a form of diminished capacity, but diminished capacity can also be the result of:

  • Age (both old and young)
  • Medication (especially medication that affects cognition and memory)
  • Psychological disorders
  • Drugs or alcohol (especially addiction)

In other words, just as an elderly client with memory problems may have diminished capacity, so too might a middle-aged client who is alcoholic and therefore incapable of making “adequately reasoned decisions” regarding the representation. Lawyers should watch for signs of diminished capacity in all its forms.

In the next installment, I’ll discuss how lawyers can assess capacity issues, and what to do when those issues arise.