§4.4 RPC 1.14: Representing a Client With Diminished Capacity

• Jurisdiction: Washington

IV. RPC 1.14: REPRESENTING A CLIENT WITH DIMINISHED CAPACITY

Nowhere is the attorney-client relationship more difficult than when a client has diminished capacity to make informed decisions. A client's decision-making capacity may be diminished because of young age or because of a mental impairment. The impairment may be permanent, chronic, or temporary. It may be present before the attorney takes on the representation or its onset may occur during the representation. It may come to the client in a single, unexpected event, such as an accident or stroke, it may gradually come to the client over a period of months or even years, or the client may have been born with it.

The Rules of Professional Conduct offer scant guidance to an attorney confronted by such a client. RPC 1.14 instructs the lawyer "as far as reasonably possible [to] maintain a normal client-lawyer relationship with the client."¹⁸⁶ But when 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, including consulting with individuals or entities that have the ability to take action to protect the client ....¹⁸⁷

There was no counterpart to this rule in the Disciplinary Rules of the CPR, but the same principles were contained in EC 7-11 and 7-12.

The comments to RPC 1.14 make several points that are not contained in the rule itself and that demonstrate just how difficult such representations can be. First, the comments note that if a legal representative has already been appointed for a client with diminished capacity, the lawyer should "ordinarily" look to the representative for decisions on behalf of the client.¹⁸⁸ But the comment stops short of saying that the legal representative is appropriately viewed as the client in such a case. And it fails to elaborate on the word "ordinarily." As a consequence, a lawyer may well be confused as to whether he or she should be deferring to the legal representative or listening directly to the client. To reinforce this confusion, the comment points out that to an increasing extent, the law recognizes intermediate degrees of competence, so that very young children, or those of advanced age with diminished competence, may be entitled to consultation on some kinds of matters. The only guidance that the comment offers a lawyer faced with such a potential conflict between client and representative is to tell lawyers that they should "ordinarily" look to the representative.

It is possible, of course, for the legal representative of a disabled person to retain the lawyer to represent the representative directly. When that is done, the lawyer's duties should be to the representative. But here again, the situation may become murky because the legal representative owes duties, in turn, to the ward, and the lawyer's responsibility typically is to assist the representative in carrying out those duties owed another. What is the lawyer to do who believes that the legal representative is breaching those duties? The comments state that "[i]f the lawyer represents the guardian as distinct from the ward, and is aware that the guardian is acting adversely to the ward's interest, the lawyer may have an obligation to prevent or rectify the guardian's misconduct. See Rules 1.2(d) and 1.6(b)(7)."¹⁸⁹ In other words, lawyers representing guardians may not defer entirely to the client. Although the comment cross-references RPC 1.2(d), that rule provides no authority for a lawyer to take preventive or remedial action in such a case. As we have seen, RPC 1.2(d) prohibits a lawyer from assisting or counseling a client to engage in criminal or fraudulent action. So the lawyer faced with a guardian-client engaged in or proposing such conduct would, under RPC 1.2, be expected to counsel against it and resign, if necessary, before assisting it.

RPC 1.6, on the other hand, does provide some authority for a lawyer to disclose client confidences when the client is a legal representative if reasonably necessary to protect the person with diminished capacity. First, as we will discuss in more detail in Chapter 6 on confidentiality, Washington permits lawyers to reveal client confidences when the lawyer reasonably believes it necessary to prevent the client from committing a crime, even one involving only property.¹⁹⁰ Second, the Washington rules permit a lawyer to reveal to a tribunal confidences or secrets that disclose "any breach of fiduciary responsibility when the client is serving as a court appointed fiduciary such as a guardian, personal representative, or receiver."¹⁹¹ Third, as with the ABA rules, if a Washington lawyer is representing a client who has used the lawyer's services to further a fraud or crime threatening substantial financial damage and the consequences can be prevented, rectified, or mitigated, then the lawyer may disclose the client's confidences to protect innocent parties.¹⁹²

The lawyer representing a client who has diminished capacity, but who has no legal representative to speak for him or her, is in a much more difficult position. On the one hand, the lawyer is instructed and expected to relate to such a client in as normal a manner a possible. On the other, to the extent of the client's incompetence, a normal relationship is precisely what is not possible: the lawyer cannot obtain the client's informed consent to decisions and should not be acting for the client absent such consent. In such a case, the lawyer may seek the appointment of a guardian or take other protective action. But short of seeking the appointment of a guardian, what kind of protective action may a lawyer take? Perhaps the lawyer is authorized...