Advising Clients with Diminished Capacity – Part 2

In my December 7, 2015, article, I discussed the basic contours of Rule 1.14, as well as the meaning of diminished capacity in the context of legal ethics. In this post, I will discuss the basic analysis lawyers can use to determine when a client has diminished capacity, and what lawyers can do in such a situation.

A client with diminished capacity to make reasoned decisions presents lawyers with a dilemma. On the one hand, if the client is experiencing only mild diminished capacity, the representation can proceed. But if the diminished capacity is serious, or if capacity is lacking, then the lawyer must take some action.

To determine whether a client is experiencing diminished capacity (and if so, to what extent), lawyers should consider:

  • The client’s ability to articulate his or her reasons for taking certain actions
  • The client’s ability to appreciate the consequences of his or her legal decisions
  • The variability of the client’s state of mind
  • The consistency of the client’s requested action with his or her long-term values

For example, a client who periodically misplaces her keys or glasses may have some diminished capacity, but there is likely not enough concern to require the lawyer to take action. By contrast, if a client is suddenly changing a long-standing estate plan and cannot articulate sound reasons for doing so, the lawyer should further evaluate the effect of the diminished capacity.

What kind of action the lawyer should take depends on the circumstances. The potential actions range from involving family members in the client’s decision-making process (which in most cases is consistent with client confidentiality), to pausing for a period of time to see if the client’s capacity increases, to recommending appointment of an attorney-in-fact, and finally to seeking help on the client’s behalf (in the most serious cases).

Of course, disclosing the client’s diminished capacity (even to seek help for the client) could adversely impact the client’s interests, a fact that the Ohio Supreme Court has candidly acknowledged in the comments to Rule 1.14, which indicate that “the lawyer’s position in such cases is an unavoidably difficult one.”

As a general rule of thumb, a lawyer seeking help for a client with diminished capacity should reveal no more information about the client than is reasonably necessary to protect the client’s interests.