To Counsel a Mockingbird: Clients with Diminished Capacity

On February 3, 2015, an imprint of HarperCollins Publishing announced that it had acquired the North American rights to Go Set a Watchman, a “newly discovered” novel written by Harper Lee, the reclusive and revered author of To Kill a Mockingbird. The announcement created weeks of chatter among publishing industry insiders, and among fans of Lee’s seminal American novel. Lee is as well-known not just for the publication of Mockingbird, but also for the fact that she has never published another novel (as discussed in a recent episode of American Masters on PBS).

The announcement also unwittingly set off a flurry of speculation about Lee’s mental capacity, and whether the publication decision is hers or has been engineered by her publisher and lawyer.

The questions about Lee’s mental state arise in part as the result of a lawsuit Lee herself filed in 2013 related to a transfer of the copyright for Mockingbird. In the suit, Lee alleged that she was duped into signing away the copyright, and noted that she has become increasingly deaf, her eyesight is failing, and that she’s lived in an assisted-living facility since she suffered a stroke in 2007. In a story for Vanity Fair in August of 2013, Lee’s minister and close friend Thomas Butts stated that Lee was, “Paralyzed on the left side, profoundly deaf, 95 percent blind, and has a very poor memory.”

Now, however, Lee’s publisher claims that she is fully competent to consent to the publication of Watchman, from which the publisher stands to make significant revenue. So when friends and colleagues of Lee’s began raising questions about her competence, the Alabama Securities Commission investigated, and eventually concluded that she was competent to consent to the book’s publication.

In spite of Alabama’s conclusion, a recent New York Times article discusses many lawyers in Lee’s orbit, including her own lawyer, Tonja B. Carter, and Ms. Carter’s lawyer.

The Harper Lee story raises interesting and seldom-discussed issues related to client capacity, and provides a good reason to review the relevant ethical rules for lawyers.

In Ohio, Rule 1.14 explains a lawyer’s responsibilities when interacting with clients that might have diminished capacity. There are several interesting aspects of the Rule that most lawyers know too little about.

First, the Rule commands lawyers to maintain, “as far as reasonably possible. . . a normal client-lawyer relationship with the client.” The Ohio Supreme Court has stressed that the lawyer for a client with diminished capacity has the same responsibilities to the client as any lawyer to a fully competent client.

Second, the Rule applies when a client’s “capacity to make adequately considered decisions in connection with a representation is diminished.” Rule 1.14(a). It is not only mental impairment that can result in diminished capacity. The Rule specifically mentions that a client may have diminished capacity because he or she is too young to make adequately considered decisions, and also contains a catch-all for impairment caused by “some other reason” (another example would be substance abuse). Rule 1.14(b).

Third, the lawyer is not obligated to take protective action for a client with diminished capacity. The Rule states that the attorney “may take reasonably necessary protective action,” when the attorney believes the client has diminished capacity, and that the client cannot adequately act in his or her own interest and is at risk of “substantial physical, financial, or other harm unless action is taken.”

Examples of the action an attorney can take are consulting with individuals or entities that have the ability to protect the client, and seeking the appointment of an appropriate guardian or conservator.

Finally, the Rule and the comments note that a lawyer should not disclose the client’s diminished capacity.

There are many ins and outs of the Rule and its potential application, but the Harper Lee story emphasizes that attorneys should at all times be sensitive to their client’s capacity to make adequately considered decisions, and be prepared to assess the impacts of any perceived incapacity and to take action if necessary to protect the client’s interests.

Harper’s press release is here.