In and Around the Bar CBA Ethics Committee Formal Opinions
Formal Opinion 126—Representing the Adult Client With Diminished Capacity, Adopted May 6, 2015
This opinion addresses ethical issues that arise when a lawyer believes that an adult client's ability to make adequately considered decisions is diminished. Although Rule 1.14 of the Colorado Rules of Professional Conduct (Colo. RPC or Rules) also addresses a client's diminished capacity due to minority, this opinion is limited to the consideration of ethical issues that arise by reason of the diminished capacity of a client due to reasons other than the client's minority. This opinion does not address representation in adult protective proceedings.
At times, a lawyer may need to consider whether an adult client's capacity to make adequately considered decisions relating to the representation is diminished. If the lawyer reasonably concludes that the client's capacity is diminished in such a manner as to impair the client's ability to make adequately considered decisions regarding the representation, including whether to give informed consent to a course of conduct by the lawyer when required, the lawyer must nevertheless maintain a normal client-lawyer relationship with the client so far as is reasonably possible. If the lawyer reasonably believes that the client's diminished capacity places the client at risk of substantial physical, financial, or other harm unless action is taken and that the client cannot adequately act in the client's own interests, the lawyer should consider whether to take reasonable protective action necessary to protect the client's interests. In taking such protective action, the lawyer should be guided by the wishes and values of the client and the client's best interests, and any protective action taken should intrude into the client's decision-making authority to the least extent feasible. When taking such protective action, the lawyer is impliedly authorized to disclose information relating to the representation that Colo. RPC 1.6 would otherwise prohibit, but the implied authorization is only to the extent reasonably necessary to protect the client's interests. The lawyer should take care to ensure that information thus disclosed will not be used against the client's interests. Differences may arise between the lawyer and client regarding whether or to what extent the client's capacity is diminished, whether the lawyer should disclose information regarding the client's condition despite the client's lack of consent to such disclosure, or whether the lawyer should take any action to protect the client. These differences may present conflicts between the client's and the lawyer's respective interests, and the lawyer must assess whether those conflicts will materially limit the representation of the client.
Summary of Opinion
A lawyer's effective and efficient representation of a client's interests depends substantially upon the client's ability to receive, analyze, and process information and advice received from the lawyer and to accurately inform the lawyer regarding information relevant to the representation. Generally, the client has the right to determine the objectives of the lawyer's representation and to be consulted by the lawyer as to the means by which such objectives are to be pursued. Colo. RPC 1.2(a).
Moreover, many actions that the lawyer takes in the course of representing the client require the client's informed consent, which the Rules define as the client's agreement to a proposed course of conduct after the client has been provided by the lawyer with adequate information and explanation a bout the material risks of and reasonably available alternatives to the proposed course of conduct. Colo. RPC 1.0(e). Thus, the client-lawyer relationship substantially depends upon the capacity of the client to make the adequately considered decisions that are required in connection with the representation.
Diminished capacity issues can arise in virtually any setting, involving any area of law, where a client-lawyer relationship exists. To illustrate different ethical issues, this opinion uses one transactional and one litigation hypothetical.
1. Transactional scenario—elderly client. A longtime, elderly client meets with you to prepare her estate plan. The client is accompanied by her son. The client directs that the bulk of her estate be left to her son and only a nominal portion be left to her daughter. You draft a will in accordance with those instructions and give it to the client to review. Days later, the client returns, this time accompanied by her daughter. The client explains that, having spoken with her daughter, she now wishes to leave the bulk of the estate to the daughter. You suspect that your longtime client is evidencing signs of dementia and that her two children are taking advantage of her mental state and attempting to unduly influence her testamentary decisions.
2. Litigation scenario—divorce. You represent a wife in a proceeding for dissolution of marriage. After the wife separated from her husband, she was diagnosed with a psychological disorder that interferes with her ability to understand and make decisions based upon your advice. She has instructed you to tell no one about this diagnosis. Your client has no separate assets, and there is a substantial marital estate. Your client tells you that she wants to settle the proceeding in a manner where she receives no assets or maintenance. You believe that a court would never enter such an order after trial or approve such a settlement upon conscionability review, but if the court did so the result would be the impoverishment of your client.
Maintaining a Normal Client Relationship
Colo. RPC 1.14 contains only one mandatory obligation: "When a client's capacity to make adequately considered decisions in connection with a representation is diminished, whether because of minority, mental impairment, or for some other reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client." Colo. RPC 1.14(a); accord Restatement (Third) of the Law Governing Lawyers § 24(1) (2000) (Restatement).
Unlike the discretionary actions permitted under Rule 1.14(b), once the lawyer forms a reasonable belief that the client has diminished capacity, Rule 1.14(a) requires that the lawyer maintain a normal relationship with the client insofar as reasonably possible notwithstanding the client's diminished capacity. The fact that the client suffers from a lack of capacity does not lessen the lawyer's obligation to treat the client with attention and respect. Colo. RPC 1.14, cmt. . This is so even if a guardian or other representative has been appointed for the client and the guardian or other representative is the legal decision-maker with regard to the representation. The lawyer representing a client with diminished capacity should continue to accord the client attention and respect; attempt to communicate and discuss relevant matters with the client; and continue, as far as reasonably possible, to take action consistent with the client's directions and decisions. See, e.g., American Bar Ass'n (ABA) Comm. on Ethics and Prof. Resp. Formal Op. 96-404, "Client Under a Disability" (1996) (ABA Op. 96-404); Or. State Bar Formal Ethics Op. 2005-159, "Competence and Diligence: Requesting a Guardian Ad Litem in a Juvenile Dependency Case" (2005) (Or. Op. 2005-159) (although a client who has become incompetent to handle his own affairs can be difficult to represent, a lawyer must maintain as regular a lawyer-client relationship as possible and must adjust the representation to accommodate the client's limited capacity); In re Flack, 272 Kan. 465, 33 P.3d 1281, (2001) (lawyer who knew that client was impaired had a duty to maintain a normal client-lawyer relationship with client, including a duty to abide by her estate planning objectives as far as reasonably possible).
Rule 1.14 recognizes that (a) "the normal client-lawyer relationship is based on the assumption that the client, when properly advised and assisted, is capable of making decisions about important matters," (b) when the client suffers from a diminished mental capacity, maintaining the normal client-lawyer relationship may not be possible "in all respects," and (c) that a client suffering from diminished capacity "often has the ability to understand and deliberate upon, and reach conclusions about matters affecting the client's own well-being." Colo. RPC 1.14, cmt. . Although Rule 1.14(b) creates a narrow exception to the normal responsibilities of a lawyer to his...