Article, 1021 UTBJ, Vol. 34, No. 5. 54

Authorby Kenneth Lougee
PositionVol. 34 5 Pg. 54

Article, Duties of an Attorney in Cases of Mental Impairment

Vol. 34 No. 5 Pg. 54

Utah Bar Journal

October, 2021

September, 2021

by Kenneth Lougee

The Utah Rules of Professional Conduct provide guidance on the duties of a lawyer representing a person whose capacity is diminished, whether because of minority, mental impairment, or some other reason. This article focuses on the duties owed a client whose capacity is diminished due to mental impairment. Utah Rule of Professional Conduct 1.14 provides the structure for a lawyer's representation of a client who appears to be mentally impaired.

The lawyer must recognize that there are a number of reasons that a person may experience mental impairment, including a traumatic brain injury, schizophrenia, bipolar disorder, autism, or other genetic disorders. A lawyer's representation must recognize the cause and effect of the mental impairment so as to judge whether the client needs immediate legal protection.

A number of factors may influence this assessment. Importantly, a person may have impairment at one time but not at another. Accidental brain injury may resolve; a person with bipolar disorder might have long periods of time with full cognizance. Thus, a lawyer cannot assume that legal protection from mental impairment continues indefinitely. A lawyer's assessment must be continuing, and recognition of improvement in mental impairment must be measured at every substantive step in the representation. Further, even if the person with mental impairment is not fully cognizant of her rights, she may otherwise be competent with respect to other aspects of the representation.

Utah Rule of Professional Conduct 1.14 Provides Guidance as to Persons with Mental Impairment

There are a number of questions that a lawyer must answer before assuming any responsibility to act for a client who is presumably mental impaired. Fortunately, Rule 1.14 gives guidance as to the lawyer's duty.

Specifically, Rule 1.14 requires that" [w] hen 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." See Utah R Pro. Conduct 1.14. Utah Rule of Professional Conduct 1.0 (q) defines substantial as "a material matter of clear and weighty importance."

Utah Rule of Professional Conduct 1.0 (m) defines reasonable belief to mean that the lawyer "believes the matter in question and that the circumstances are such that the belief is reasonable." Utah Rule of Professional Conduct 1.0(a) defines belief: "'Belief or 'believes' denotes that the person involved actually supposed the fact in question to be true. A person's belief may be inferred from circumstances."

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