Rule of Professional Conduct 1.14 and the Diminished-capacity Client
| Jurisdiction | Colorado,United States |
| Citation | Vol. 39 No. 5 Pg. 67 |
| Pages | 67 |
| Publication year | 2010 |
2010, May, Pg. 67. Rule of Professional Conduct 1.14 and the Diminished-Capacity Client
May 2010
Vol. 39, No. 5 [Page 67]
Trust and Estate Law articles are sponsored by the CBA Trust and Estate Section. Topics include trust and estate planning and administration, probate litigation, guardianships and conservatorships, and tax planning.
Coordinating Editors
David W. Kirch, of David W. Kirch, P.C., Aurora-(303) 671-7726, dkirch@dwkpc.net; Constance D. Smith, of Rothgerber Johnson and Lyons LLP-(303) 894-4474, csmith@fwlaw.com
About the Author
Bernard A. Poskus is a shareholder with Poskus, Caton and Klein, P.C., Denver-(303) 832-1600, poskus@poskuscatonklein.com. The author gratefully acknowledges the assistance of Letitia Maxfield, second-year student at the University of Denver Sturm College of Law, and his partner Shari D. Caton, who, among other helpful things, makes sure he does not use too many commas.
The attorney-client relationship begins to break down when the client's mental capacity is diminished or absent. This article provides guidance to lawyers placed in this difficult situation.
This article addresses the problems faced by attorneys representing clients with diminished capacity. Interest in the topic was generated by a 2007 case decided by the Colorado Court of Appeals, In re Sorensen,(fn1) which appears to be one of the few Colorado appellate decisions to speak to Colorado Rule of Professional Conduct (Rule) 1.14.(fn2) Rule 1.14 addresses the relationship between an attorney and a client with diminished capacity.
Restatement of the Law Governing Lawyers § 24 Cmt. b,(fn3) which is the Restatement's counterpart to Rule 1.14, reads in part:
This Section recognizes that a lawyer must often exercise an informed professional judgment in choosing among . . . imperfect alternatives.(fn4)
The lawyer seeking a precise rule of law to follow in this situation will be disappointed. A large part of the difficulty arises in the role lawyers historically have played in their relationships with their clients.
The Conventional Relationship Between Lawyers and Clients
Lawyers have differing ways of relating to their clients.(fn5) The traditional model is that of a lawyer acting purely as an agent for his or her client (the principal).(fn6) Rule 1.2 and Comment [1] thereto make it clear that the client is the author of the goals of the representation, but allows the lawyer discretion as to the means by which those goals are to be met:
[A] lawyer shall abide by a client's decisions concerning the objectives of representation and, as required by Rule 1.4, shall consult with the client as to the means by which they are to be pursued. A lawyer may take such action on behalf of the client, as is impliedly authorized to carry out the representation.
[This rule] confers upon the client the ultimate authority to determine the purposes to be served by legal representation. . . . With respect to the means by which the client's objectives are to be pursued, the lawyer shall consult with the client as required by Rule 1.4(a)(2) and may take such action as is impliedly authorized to carry out the representation (emphasis supplied).
Problems can occur when the agent-principal paradigm breaks down. In the attorney-client setting, this can occur when the client is unable to give instructions to the attorney, or gives instructions that appear to be inconsistent with the client's best interests or appear to be inconsistent with the client's prior instructions. The question then becomes: What is the permissible scope of an attorney's activities at that point?
Rule 1.14
Rule 1.14 is the primary source of guidance for a lawyer representing a client with diminished capacity. However, the rule has been criticized for a lack of specificity:
Although Rule 1.14 is laudable because it recognizes the rights of a client with a mental disability and requires that a lawyer maintain a traditional attorney-client relationship with such clients, the rule fails to provide much guidance to lawyers in carrying out this endeavor.(fn7)
Questions arise with respect to determining how an attorney is supposed to relate to a diminished-capacity client; to what extent a lawyer can communicate with others concerning the client's incapacity; and what actions the lawyer can take without the consent of the client or even over the objection of the client. A worrisome issue is whether an attorney can be held responsible (either for a possible violation of Rule 1.14 or for attorney malpractice) for failing to take action without the consent of or over the objection of the client.
Relationship With a Diminished-Capacity Client
A lawyer's relationship with a diminished-capacity client is, perhaps with one exception, the easiest of these issues to resolve. Given that Rule 1.14 requires "as far as reasonably possible, [maintenance of] a normal client-lawyer relationship," it is not difficult to keep forwarding correspondence to the client, to communicate with the client, and to have meetings with the client when the matter requires such direct attention.(fn8) However, having meetings with the client could be "unreasonable" as contemplated by the Rule in situations where the client is unresponsive-such as when the client is in a vegetative state or in the final stages of Alzheimer's disease.
The exception to the relative simplicity of this issue concerns the manner in which a diminished-capacity individual and a lawyer form an attorney-client relationship in the first place. Much of the guidance assumes that the attorney-client relationship already is established,(fn9) but does not address how someone of diminished capacity and an attorney can enter into the relationship.
The relationship between attorney and client is essentially contractual, with the outer boundaries of the relationship being circumscribed by the attorney's ethical obligations.(fn10) "Contractual capacity" is defined as the ability to understand the terms and consequences of the contract.(fn11) It seems that capacity to enter into an attorney-client relationship would exist when the prospective client is capable of communicating with the attorney, and is mentally and emotionally capable "of weighing the advice of counsel on the particular course to pursue in her own interest."(fn12)
Depending on the nature of the representation, it may be appropriate to consult with a medical, psychological, or social work professional regarding the degree of incapacity experienced by the client. For example, the practitioner could request that a client with a diagnosis implicating diminished capacity (such as Alzheimer's disease) obtain a letter from a physician attesting to sufficient mental capacity before taking significant legal steps, such as signing a will or power of attorney.(fn13)
More innocuous matters may not require such verification. One example is a situation where the diminished-capacity client is the beneficiary of a trust and is seeking independent advice regarding proper administration of the trust so as to avoid impairment of his or her access to public benefits. If it appears that the client understands the advice given and can act on it, and the situation with respect to administration of the trust may be easily addressed without resorting to significant intervention with the trustee, there is minimal need to obtain independent corroboration of the client's capacity to retain the attorney. To do so in a situation...
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