"My basement is filled with pornography!" "But you don't have a basement".

• Author: Kruse, Clifton B., Jr.
• Position: Mentally disabled clients

There is no consensus regarding how a lawyer ought to respond in representing a client whose competency is questionable.

If any rule requires careful study by attorneys practicing elder law, ABA Model Rule 1.14 is such a rule. This brief article examines the effect of this rule in the context of a client's decline.

We do not overlook other important rules and considerations such as defining who the client is among conflicted family members and their aging parent or parents, a fundamental ethical issue in our practices, as well as other more novel ethical conundrums, but we leave consideration of them for another day, and suggest a reading of Frolik, Schlesinger and The Fordham Law Review(1) in the interim.

In this episode we take a real life call from Amedra, and we visit the model rule which is (and must be) no stranger to us--1.14--Client Under a Disability. It governs our response to this demented soul,(2) although there is no consensus regarding how a lawyer ought to respond in representing a client whose competency is questionable.(3)

Amedra

"My basement is filled with pornography!" This message was the initial offering of my caller after assurances from me that I was indeed "Mr. Kruse," for whom she had asked.

The call was from Amedra, no stranger to me. Over the last 20 years, my wife and I have shared many gourmet meals with her and her husband, along with several other dining companions. Five couples took turns preparing scrumptious offerings, marrying the "right" wines with very special courses, including amuse-bouche, and entremets, all of us trying to outdo each other, I suppose, when it was our respective turn to host the meal. We discovered Pugliese, a delicious crusty Italian bread, and Tenuta Del Numerouno, a perfect extra virgin Tuscany cold pressed olive oil for dipping, at one of these galas.

From this caller I also learned that Stilton cheese is not just good, but near perfect with an older Zin(4) or with an aged but still tannic Bordeaux, as well as with Stilton's more common partner, a rich, ruby-red Portugese Vinho do Porto.

Our group disbanded when Amedra's husband died. Her grief resulted in a lengthy withdrawal from things social, and she and her husband had been the catalysts of our group. They made it work, arranged for the times we met, coordinating the varying schedules of five busy couples. Following her husband's death, about six years ago, Amedra's enthusiasm for gourmet meals was understandably lost. Her amusement at our gatherings, vibrantly evidenced in her laughter and banter among the members of the group, now that she was widowed and alone, never returned.

Two months earlier, I'd received another call from my friend, the first in several years following the closing of her husband's estate. That evening call to my home also began strangely.

"Someone on your staff is taping our calls," she said.

"They are?" I replied, mystified, careful not to be defensive. "Why?" She had no idea, but she knew I would "want to know" that her calls were being taped.

"But you don't have a basement!" I replied to Amedra in response to her announcement about the pornography. I had been to my friend's home many times, all through it. It is built on a slab with no basement.

"Who else have you called about this?" I asked.

"Just you."

"Not your daughter?"

"No."

"Call her," I suggested.(5)

Two months passed. Another call. After establishing who I was, the lawyer she intended calling, she spoke, actually near-whispered, "There are cameras in my home!"

"What do you mean?"

"Someone has hidden cameras all over the house," she paused, "in the walls."

"Why?"

"I don't know."

"What do you want me to do?"

"Tell whoever put them in to take them out."

"Can you see them?"

"No. They're hidden in the walls."

"In Whatever House I Enter I Will Go ... for the Benefit of the Sick...."

--The Oath of Hippocrates

Ethical issues arise when a lawyer discovers that his or her client is mentally deranged. In the case of Amedra, what am I to do? What are my ethical responsibilities to my long-term and now demented client?

Is my paranoid(6) caller one who is suffering from a disability, a derangement contemplated by the model rule?(7) If so, what duties do I owe to her and in what activity may or must I engage to protect her?(8) Deontological concepts arise from a sense of duty or obligatory activity, because certain responsive acts are morally appropriate, the right things to do. Hippocrates reminded us of this. It dominates his oath(9) And, as in medicine, deontic study is required in law.

A lawyer who has a long-standing relationship with a client, even though such lawyer is not currently working on a project for the client, "is not for lack of [a current] assignment barred from taking appropriate action to protect [her].... "(10) But how paternalistic may the lawyer be? What duty or duties to the client must the legal agent satisfy? And what standards are controlling about which the lawyer must be aware? Rule 1.14(11) provides that "a client [lacking legal competence] often has the ability to understand, deliberate upon and reach conclusions about matters affecting [his or her] own well-being."(12) A lawyer, therefore, cannot simply take over and...