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ACTEC COMMENTARIES ON THE MODEL RULES OF PROFESSIONAL CONDUCT
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(a) When a client's capacity to make adequately considered decisions in connection with a representation is diminished, whether because of minority, mental disability or for some other reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client.
(b) When the lawyer reasonably believes that the client has diminished capacity, is at risk of substantial physical, financial or other harm unless action is taken and cannot adequately act in the client's own interest, the lawyer may take reasonably necessary protective action, including consulting with individuals or entities that have the ability to take action to protect the client and, in appropriate cases, seeking the appointment of a guardian ad litem , conservator or guardian.
(c) Information relating to the representation of a client with diminished capacity is protected by Rule 1.6. When taking protective action pursuant to paragraph (b), the 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.
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| Preventive Measures for Competent Clients. As a matter of routine, the lawyer who represents a competent adult in estate planning matters should provide the client with information regarding the devices the client could employ to protect his or her interests in the event of diminished capacity, including ways the client could avoid the necessity of a guardianship or similar proceeding. Thus, as a service to a client, the lawyer should inform the client regarding the costs, advantages and disadvantages of durable powers of attorney, directives to physicians or living wills, health care proxies, and revocable trusts. A lawyer may properly suggest that a competent client consider executing a letter or other document that would authorize the lawyer to communicate to designated parties (e.g., family members, health care providers, a court) concerns that the lawyer might have regarding the client's capacity. In addition, a lawyer may properly suggest that a durable power of attorney authorize the attorney-in-fact, on behalf of the principal, to give written authorization to one or more of the client's health care providers and to disclose information for such purposes upon such terms as provided in such authorization, including health information regarding the principal, that might otherwise be protected against disclosure by the Health Insurance Portability and Accountability Act of 1996 (HIPAA). If the client wishes the durable power of attorney to become effective at a date when the client is unable to act for him- or herself, the lawyer should consider how to draft that power in light of the restrictions found in HIPAA.
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| Implied Authority to Disclose and Act. Based on the interaction of subsections (b) and (c) of MRPC 1.14, a lawyer has implied authority to make disclosures of otherwise confidential information and take protective actions when there is a risk of substantial harm to the client. Under those circumstances, the lawyer may consult with individuals or entities that may be able to assist the client, including family members, trusted friends, and other advisors. However, in deciding whether others should be consulted, the lawyer should also consider the client’s wishes, the impact of the lawyer’s actions on potential challenges to the client’s estate plan, and the impact on the lawyer’s ability to maintain the client’s confidential information. In determining whether to act and in determining what action to take on behalf of a client, the lawyer should consider the impact a particular course of action could have on the client, including the client’s right to privacy and the client’s physical, mental and emotional well-being. In appropriate cases, the lawyer may seek the appointment of a guardian ad litem, conservator or guardian or take other protective action.
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| Risk and Substantiality of Harm. For the purposes of this rule, the risk of harm to a client and the amount of harm that a client might suffer should both be determined according to a different scale than if the client were fully capable. In particular, the client’s diminished capacity increases the risk of harm and the possibility that any particular harm would be substantial. If the risk and substantiality of potential harm to a client are uncertain, a lawyer may make reasonably appropriate disclosures of otherwise confidential information and take reasonably appropriate protective actions. In determining the risk and substantiality of harm and deciding what action to take, a lawyer should consider any wishes or directions that were clearly expressed by the client during his or her competency. Normally, a lawyer should be permitted to take actions on behalf of a client with apparently diminished capacity that the lawyer reasonably believes are in the best interests of the client.
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| Disclosure of Information. ABA Informal Opinion 89-1530 (1989) stated the authority of the attorney to disclose confidential and non-confidential information as follows: |
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[T]he Committee concludes that the disclosure by the lawyer of information relating to the representation to the extent necessary to serve the best interests of the client reasonably believed to be disabled is impliedly authorized within the meaning of Model Rule 1.6. Thus, the inquirer may consult a physician concerning the suspected disability.
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| The 2002 amendments to MRPC 1.14 support this conclusion.
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| Determining Extent of Diminished Capacity. In determining whether a client’s capacity is diminished, a lawyer may consider the client’s overall circumstances and abilities, including the client’s ability to express the reasons leading to a decision, the ability to understand the consequences of a decision, the substantive appropriateness of a decision, and the extent to which a decision is consistent with the client’s values, long-term goals, and commitments. In appropriate circumstances, the lawyer may seek the assistance of a qualified professional.
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| Lawyer Representing Client with Diminished Capacity May Consult with Client’s Family Members and Others as Appropriate. If a legal representative has been appointed for the client, the lawyer should ordinarily look to the representative to make decisions on behalf of the client. The lawyer, however, should as far as possible accord the represented person the status of client, particularly in maintaining communication. In addition, the client who suffers from diminished capacity may wish to have family members or other persons participate in discussion with the lawyer. The lawyer must keep the client’s interests foremost. Except for disclosures and protective actions authorized under MRPC 1.14, the lawyer should rely on the client’s directions, rather than the contrary or inconsistent directions of family members, in fulfilling the lawyer’s duties to the client. In meeting with the client and others, the lawyer should consider the impact of a joint meeting on the attorney client evidentiary privilege.
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| Testamentary Capacity. If the testamentary capacity of a client is uncertain, the lawyer should exercise particular caution in assisting the client to modify his or her estate plan. The lawyer generally should not prepare a will, trust agreement, or other dispositive instrument for a client who the lawyer reasonably believes lacks the requisite capacity. On the other hand, because of the importance of testamentary freedom, the lawyer may properly assist clients whose testamentary capacity appears to be borderline. In any such case the lawyer should take steps to preserve evidence regarding the client's testamentary capacity.
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| In cases involving clients of doubtful testamentary capacity, the lawyer should consider, if available, procedures for obtaining court supervision of the proposed estate plan, including substituted judgment proceedings.
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| Lawyer Retained by Fiduciary for Person with Diminished Capacity. The lawyer retained by a person seeking appointment as a fiduciary or retained by a fiduciary for a person with diminished capacity, including a guardian, conservator, or attorney-in-fact, stands in a lawyer-client relationship with respect to the prospective or appointed fiduciary. A lawyer who is retained by a fiduciary for a person with diminished capacity, but who did not previously represent the disabled person, represents only the fiduciary. Nevertheless, in such a case the lawyer for the fiduciary owes some duties to the disabled person. See ACTEC Commentary on MRPC 1.2 (Scope of Representation and Allocation of Authority Between Client and Lawyer). If the lawyer represents the fiduciary, as distinct from the person with diminished capacity, and is aware that the fiduciary is improperly acting adversely to the person’s interests, the lawyer may have an obligation to disclose, to prevent, or to rectify the fiduciary’s misconduct. See MRPC 1.2(d) (providing that a lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent).
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| As suggested in the Commentary to MRPC 1.2, a lawyer who represents a fiduciary for a person with diminished capacity or who represents a person who is seeking appointment as such, should consider asking the client to agree that, as part of the engagement, the lawyer may disclose fiduciary misconduct to the court, to the person with diminished capacity, or to other interested persons.
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| Person With Diminished Capacity Who Was a Client Prior to Suffering Diminished Capacity and Prior to the Appointment of a Fiduciary. A lawyer who represented a client before the client suffered diminished capacity may be considered to continue to represent the client after a fiduciary has been appointed for the person. Although incapacity may prevent a person with diminished capacity from entering into a contract or other legal relationship, the lawyer who represented the person with diminished capacity at a time when the person was competent may appropriately continue to meet with and counsel him or her. Whether the person with diminished capacity is characterized as a client or a former client, the lawyer for the fiduciary owes some continuing duties to him or her. See Ill. Advisory Opinion 91-24 (1991) (summarized in the Annotations following the ACTEC Commentary on MRPC 1.6 (Confidentiality of Information)). If the lawyer represents the person with diminished capacity and not the fiduciary, and is aware that the fiduciary is improperly acting adversely to the person’s interests, the lawyer has an obligation to disclose, to prevent, or to rectify the fiduciary’s misconduct.
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| Wishes of Person With Diminished Capacity Who Is Under Guardianship or Conservatorship When the Fiduciary is the Client. A conflict of interest may arise if the lawyer for the fiduciary is asked by the fiduciary to take action that is contrary either to the previously expressed wishes of the person with diminished capacity or to the best interests of the person, as the lawyer believes those interests to be. The lawyer should give appropriate consideration to the currently or previously expressed wishes of a person with diminished capacity.
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| May Lawyer Represent Guardian or Conservator of Current or Former Client? The lawyer may represent the guardian or conservator of a current or former client, provided the representation of one will not be directly adverse to the other. See ACTEC Commentary on MRPC 1.7 and MRPC 1.9. Joint representation would not be permissible if there is a significant risk that the representation of one will be materially limited by the lawyer’s responsibilities to the other. See MRPC 1.7(a)(2). Because of the client’s, or former client’s, diminished capacity, the waiver option may be unavailable. See MRPC 1.0(e) (defining informed consent).
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| Cases
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Arizona: |
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Fickett v. Superior Court, 558 P.2d 988 (Ariz. Ct. App. 1976). In this malpractice action the court held
that the lawyer for a guardian owed fiduciary duties to the guardian’s ward. Privity of contract between
the lawyer and the ward was not required in order for the ward to pursue a claim for negligence against
the lawyer for the guardian.
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California:
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Moore v. Anderson Zeigler Disharoon Gallagher & Gray, 135 Cal. Rptr. 2d 888 (Ct. App. 2003). This
case is discussed in the Annotations following the ACTEC Commentary on MRPC 1.1.
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District of Columbia:
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Donnelly v. Parker, 486 F.2d 402 (D.C. Cir. 1973). This case holds that where the physical and mental
condition of a plaintiff in civil litigation might be the pivot upon which much of the case on its merits
would turn, counsel acting on behalf of the plaintiff should be permitted to continue his representation
until the question of the plaintiff’s alleged incapacity could suitably be determined in the trial court.
Therefore, the appellate court refused to enter an order requiring counsel for the plaintiff to prove his
continuing authority to represent the plaintiff whose capacity defendant had put into question.
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Florida:
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Florida Bar v. Betts, 530 So. 2d 928 (Fla. 1988). In this case an attorney was publicly reprimanded
for his actions in preparing two codicils to the will of his client at a time when the client was in a
rapidly deteriorating physical and mental state. In the first codicil the testator removed his daughter
and son-in-law as beneficiaries. The lawyer spoke with his client several times in an effort to persuade
him to reinstate his daughter as a beneficiary. Subsequently, the lawyer prepared a second codicil
to reach this result. However, when the codicil was presented to the testator, he was in a comatose
state. The lawyer did not read the second codicil to the testator, the testator made no verbal
response when the lawyer presented the codicil to him, and the lawyer had the codicil executed by
an X that the lawyer marked on the document with a pen he had placed and guided in the testator’s
hand. The court observed:
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| Improperly coercing an apparently incompetent client into executing a codicil raises serious questions
both of ethical and legal impropriety, and could potentially result in damage to the client or
third-parties. It is undisputed that [Lawyer] did not benefit by his action and was merely acting
out of his belief that the client’s family should not be disinherited. Nevertheless, a lawyer’s responsibility
is to execute his client’s wishes, not his own. 530 So. 2d at 929.
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Vignes v. Weiskopf, 42 So. 2d 84 (Fla. 1949). The Supreme Court of Florida here held that it was proper
for a lawyer to prepare and supervise the execution of a codicil for a client who was “incurably ill and
was in such pain that a great deal of medication to relieve him of his suffering was being administered,
such as phenobarbital, novatrine, demerol, cobra venom, and so forth.” The court stated that:
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| We are convinced that the lawyer should have complied as nearly as he could with the testator’s
request, should have exposed the true situation to the court, which he did, and should have then left
the matter to that tribunal to decide whether in view of all facts surrounding the execution of the
codicil it should be admitted to probate.
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| Had the attorney arrogated to himself the power and responsibility of determining the capacity of
the testator, decided he was incapacitated, and departed, he would indeed have been subjected to
severe criticism when, after the testator’s death, it was discovered that because of his presumptuousness
the last-minute effort of a dying man to change his will had been thwarted. 42 So. 2d at 86.
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Michigan:
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In re Makarewicz, 516 N.W.2d 90 (Mich. Ct. App. 1994). A lawyer who was hired by a minor’s
conservator on a contingent fee basis to pursue the minor’s claim does not, after discharge by conservator,
have standing to petition the court to replace the conservator and require acceptance of
settlement. The Presiding Judge directed the Clerk of the Court to forward a copy of the decision
to Michigan’s Attorney Grievance Committee. The opinion endorses the approach taken in the
Comment to MRPC 1.14:
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| Under MRPC 1.14(b), a lawyer may take protective action with respect to a client only when the
lawyer reasonably believes that the client cannot adequately act in the client’s own interests. The
Comment accompanying MRPC 1.14 suggests that where a legal representative has already
been appointed for the client, the lawyer ordinarily should look to the representative for decisions
on behalf of the client. However, if the lawyer represents the guardian as distinct from the
ward, and is aware that the guardian is acting adversely to the ward’s interest, the lawyer may
have an obligation to prevent or rectify the guardian’s misconduct. 516 N.W.2d at 91-92.
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New Jersey:
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Lovett v. Estate of Lovett, 593 A.2d 382 (N.J. Super. 1991). The court stated that, “[a]lthough I
agree that a lawyer has an obligation not to permit a client to execute documents if he or she
believes that client to be incompetent, I am not satisfied that the proofs establish that in 1982
[Client] was incompetent or that [Lawyer] should have concluded that he was.” 593 A.2d at 386.
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In the Matter of M.R., 638 A.2d 1274 (N.J. 1994). In a family law case the New Jersey Supreme
Court concluded that a developmentally disabled person’s choice of where to live should be honored
if she is competent. “If not, the court should determine the place of residence according to
M.R.’s best interests. Her attorney’s role should be to advocate her choice, as long as it does not
pose unreasonable risks for her health, safety, and welfare. If the court concludes that M.R. is incapable
of deciding where to live, it may appoint a guardian ad litem to represent her best interests.”
638 A.2d at 1286.
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Ohio:
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Kutnick v. Fischer, 2004 WL 2251799 (Ohio Ct. App. 2004). The court here held that the attorneys
for an incapacitated person did not breach any duty of confidentiality owed to their client by
requesting the appointment of one of the client’s lawyers as the client’s guardian since the court
appointed someone else. Acknowledging that an attorney representing an “incompetent” [sic]
client has special responsibilities under the ethical rules, the court observed:
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| We do not believe that any tort duty of loyalty precludes an attorney from pursuing the client’s
best interests by seeking a court determination of the client’s competency and the appointment
of a guardian in a proceeding separate from that in which the attorney is representing the client.
The torts of malicious prosecution and abuse of process are available to the extent the client
claims the attorney pursued the guardianship action without probable cause or for some ulterior
purpose.
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Washington:
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In re Fraser, 523 P.2d 921 (Wash. 1974). In this case the court held that the lawyer for a guardian
should not “be faulted for refusing to abandon the ward at the guardian’s request.” 523 P.2d at 928.
The court stated:
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| [T]he attorney owes a duty to the ward, as well as to the guardian. Since the guardian in this
case manifested a greater interest in herself than in serving the interest of the ward, it would
have been hazardous to the interests of the ward to turn the assets of her small estate over to
the guardian. Id.
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Morgan v. Roller, 794 P.2d 1313 (Wash. Ct. App. 1990). In this malpractice action brought by the beneficiaries
under a will to recover from the scrivener of the will the costs of successfully defending a
will contest, the court held that the scrivener of the will was not required to inform intended beneficiaries
under the will of his view, based on subsequent contacts with the testator, that she was incompetent
at the time the will was executed.
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Wyoming:
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Clark v. Alexander, 953 P.2d 145 (Wyo. 1998). Attorney who is guardian-ad-litem is obligated to
explain to the child that the attorney (GAL) is charged with protecting the child’s best interest and
that information may be provided to the court which would otherwise be protected by the attorneyclient
relationship. However, counsel appointed to represent a child must, as far as reasonably possible,
maintain a normal client-lawyer relationship with the child and is not free to determine the
child’s “best interests” if contrary to the preferences of the child.
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| Ethics Opinions
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ABA:
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Formal Op. 96-404 (1996). “Because the relationship of client and lawyer is one of principal and
agent, principles of agency law might operate to suspend or terminate the lawyer’s authority to act
when a client becomes incompetent ... ” The opinion goes on to observe that the lawyer in question
may consult with the client’s family, and may even petition the court for the appointment of a
guardian, but may not represent a third party petitioning for appointment. It is not impermissible for
the lawyer to support the appointment of a guardian who the lawyer expects will retain the lawyer
as counsel.
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Alabama:
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Ala. Op. 90-12 (1990). A lawyer who believes that a client lacks capacity to act in the client’s own
interests may divulge confidential information to an independent diagnostician without the consent of
the client.
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Ala. Op. 87-137 (1987). A lawyer whose client has become incompetent may file a petition for appointment
of a guardian. A lawyer is “required to do so” if the lawyer believes it is in the client’s best interests.
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Alaska:
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Alaska Op. 87-2 (1987). The discharged lawyer for a conservator could ethically disclose to the ward’s
personal lawyer that the conservator was not acting in the ward’s interests.
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Arizona:
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Ariz. Op. 86-13 (1986). A lawyer who was appointed as guardian ad litem for a minor may also serve as
lawyer for the minor so long as there is no conflict of interest. If a conflict exists, the lawyer must request
the court to appoint a new guardian ad litem. The lawyer may not continue to act as a guardian and ask
that a new lawyer be appointed to represent the minor. If a new guardian is appointed, the lawyer should
follow the client’s wishes although contrary to the guardian’s wishes. If the guardian believes that the
minor’s wishes are not in the minor’s best interests, the matter should be presented to the court.
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California:
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Cal. Formal Op. 1989-112 (1989). Without the consent of the client, a lawyer may not initiate conservatorship
proceedings on the client’s behalf, even though the lawyer has concluded it is in the best interests
of the client. Initiation of the proceeding would breach confidences of the client and constitute a conflict
of interest.
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L.A. Op. 450 (1988). Initiating a conservatorship proceeding for a present or former client without the
client’s authorization involves an impermissible conflict of interest.
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San Diego Op. 1990-3 (1990). The portion of this opinion dealing with the capacity of a client advised
that, “a lawyer must be satisfied that the client is competent to make a will and is not acting as a result of
fraud or undue influence.” The opinion continues, suggesting that once an issue of capacity is raised in
the attorney’s mind it must be resolved. “The attorney should schedule an extended interview with the
client without any interested parties present and keep a detailed and complete record of the interview. If
the lawyer is not satisfied that the client has sufficient capacity and is free of undue influence and fraud,
no will should be prepared. The attorney may simply decline to act and permit the client to seek other
counsel or may recommend the immediate initiation of a conservatorship.”
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S.F. Op. 99-2 (1999). Criticizing the result reached in California Formal Opinion 1989-112 (1989),
supra, this opinion concludes after a careful analysis:
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| An attorney who reasonably believes that a client is substantially unable to manage his or her own
financial resources or resist fraud or undue influence, may, but is not required to, take protective
action with respect to the client’s person and property. Such action may include recommending
appointment of a trustee, conservator, or guardian ad litem. The attorney has the implied authority
to make limited disclosures necessary to achieve the best interests of the client. [Citations omitted.]
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Connecticut:
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Conn. Op. 86-11 (1986). A lawyer serving as a testamentary trustee may institute an involuntary conservatorship
proceeding for an improvident beneficiary provided doing so would not involve the disclosure
of information obtained by the lawyer while acting as the beneficiary’s attorney.
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Florida:
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Attorney General Op. 96-94 (1996). Since a person adjudicated incapacitated is the intended beneficiary
of the guardianship, an attorney who represents a guardian of such a person and who is compensated
from the ward’s estate for such services owes a duty of care to the ward as well as to the guardian.
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Illinois:
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Op. 00-02, 2000 WL 33313185 (2000). This opinion is discussed in the Annotations following the ACTEC Commentary on MRPC 1.6.
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Advisory Op. 91-24 (1991). This opinion is discussed in the Annotations following the ACTEC Commentary on MRPC 1.6.
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Indiana:
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Op. 2-2001 (2001). This opinion is discussed in the Annotations following the ACTEC Commentaryon MRPC 1.2.
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Michigan:
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Mich. RI 176 (1993). The adverse interests of a mother and daughter preclude the same lawyer from
representing both of them in connection with the revocation of a durable power of attorney and petitioning
for the appointment of a guardian for the mother.
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Mich. RI 76 (1991). A lawyer may seek the appointment of a guardian or take other protective action
with respect to a client with a history of mental illness who has refused to accept a personal injury
settlement or pay for its appeal if the lawyer reasonably believes the client cannot adequately act in
the client’s own interest. Such action does not involve a conflict of interest.
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Nebraska:
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Neb. Op. 91-4 (1991). A lawyer who reasonably believes that a client is not able to act in the client’s
best interests may disclose confidential information to the extent necessary to protect the client’s best
interests.
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New York:
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Formal Op. 775 (2004). When a possibly incapacitated former client sends a lawyer a letter, evidently
prepared by someone else, requesting the return of the client’s original will, the lawyer may communicate
with the former client and others to make a judgment about the client’s competence and to
ascertain his or her genuine wishes regarding the disposition of the original will. In this case, the
lawyer had reason to believe that the client might be acting under the influence of a family member
who would benefit by the destruction of the will.
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Formal Op. 746 (2001). A lawyer serving as a client’s attorney-in-fact may not petition for the appointment
of a guardian without the client’s consent unless the lawyer determines that (i) the client is incapacitated,
(ii) there is no practical alternative, through the use of the power of attorney or otherwise, to
protect the client’s best interests and (iii) there is no one else available to serve as petitioner.
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Nassau County Op. 90-17 (1990). A lawyer may not reveal to the relatives of a client the lawyer’s
observations regarding the client’s competency; consultations with the client are confidential.
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New York City Op. 1987-7 (1987). A lawyer may disclose confidential information in seeking the
appointment of a guardian if that is necessary to protect the client’s interests. Request should be
made in camera and information should be filed under seal.
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Oregon:
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Op. 2000-159 (2000). A lawyer may seek the appointment of a guardian for a mentally incapacitated
parent client involved in a juvenile dependency case. Lawyer who believes that his client cannot
adequately represent his own interests must take the least restrictive action with respect to the
client. In determining whether the client can adequately act in his or her own interests, the lawyer
needs to examine whether the client can give direction on the decisions that the lawyer must ethically
defer to the client. After the guardian ad litem is appointed, the lawyer must take directions
from the guardian ad litem.
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Op. 1991-41 (1991). A lawyer who has represented Client for many years and has begun to observe
extraordinary behavior by Client that is contrary to Client’s best interests, may take action on behalf
of Client. This opinion states that, “[a]s the language of [former] DR 7-101(C) makes clear, an attorney
in such a situation must reasonably be satisfied that there is a need for protective action and must
then take the least restrictive form of action sufficient to address the situation. If, for example, Client
is an elderly individual and Attorney expects to be able to end the inappropriate conduct simply by
talking to Client’s spouse or child, a more extreme course of action such as seeking the appointment
of a guardian would be inappropriate.”
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Pennsylvania:
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Op. 91-36 (1991). A lawyer who is convinced that disclosure is necessary may disclose confidential
information to the extent necessary to protect the client’s interests, including seeking a guardianship
or other protective measures.
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Op. 90-89 (1990). If the lawyer believes a client is incompetent, the information must remain confidential
unless the lawyer determines it is necessary to pursue the appointment of a guardian.
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Op. 89-90 (1989). A lawyer for a competent client who decided to refuse medical treatment for progressively
disabling disease may serve both as her lawyer and as her guardian ad litem.
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Rhode Island:
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Op. 88-15 (1988). The lawyer for the guardian of a minor’s estate, who sent the guardian six letters
over 15 months requesting client to file accounts, without compliance by client, may withdraw based
on client’s conduct making representation difficult.
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South Carolina:
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Op. 93-04 (1993). This opinion is discussed in the Annotations following the ACTEC Commentary on MRPC 1.6.
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