Article Title: Practice Pointer: Representing a Client With Diminished Capacity
| Publication year | 2003 |
| Pages | 12-6 |
12-6 (2003). Article Title: Practice Pointer: Representing a Client With Diminished Capacity
December, 2003
Last Update: 15/11/04
Article Title: Practice Pointer: Representing a Client With
Diminished Capacity
Author: Kate A. Toomey
Article Type
Articles
Article
Since becoming a lawyer, I've often thought that it must
be especially challenging to represent a client with
diminished capacities.(fn1) Calls to the Office of
Professional Conduct's Ethics Hotline, and even some of
the informal complaints I've reviewed confirm this. The
Hotline calls involve queries about whether an attorney can
substitute the attorney's judgment for that of the
client, and whether it's consistent with the duty of
loyalty for the attorney to initiate proceedings to secure
the appointment of a legal representative for the client
especially if the client opposes it. Informal complaints have
been submitted to the OPC by family members distressed about
what they consider over-reaching by the attorney.(fn2)
Most often, elderly relatives are the subject of the informal
complaints, but consider, too, that a person need not be
elderly or mentally retarded to render
informed-decision-making difficult if not virtually
impossible - youth, dementia, illness, chemical dependency
mental illness, and communication challenges being among the
many examples.
We're all familiar with the rule that requires an
attorney to "explain a matter to the extent reasonably
necessary to enable the client to make informed decisions
regarding the representation," but in a disabled
person's case, wouldn't you necessarily fall short?
Rule 1.4(b), Utah R. Pro. Con. And what about the rule
requiring an attorney to "abide by a client's
decisions concerning the objectives of representation?"
Rule 1.2(a), Utah R. Pro. Con.
The Rules of Professional Conduct provide some guidance
"When a client's ability to make adequately
considered decisions in connection with the representation is
impaired, 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 person." Rule 1.14(a), Utah R. Pro. Con. This means
that the attorney/client relationship should be kept as
normal as possible, which of course entails a heightened duty
for the lawyer to try to communicate so as to allow the...
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