Expanded Ethical Obligations for Diminished-Capacity Clients

• Date: 01 April 2024

Published i n Litigation New s Volume 49, Numbe r 3, Spring 2024 . © 2024 by the Ameri can Bar Asso ciation. Rep roduced with pe rmission. A ll rights rese rved. This inf ormation or any p ortion there of

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s millions of baby boom-

ers age, questions about

legal incapacity are gain-

ing increased attention

from ethics authorities. A

recent state ethics opinion emphasizes

the need for lawyers to treat clients

with diminished capacity with height-

ened care. The opinion suggests that

when dealing with a diminished capac-

ity client, lawyers should endeavor to

obtain the client’s advanced consent to

disclose conf‌idential information and

take other appropriate measures to pro-

tect the incapacitated client from harm.

According to Formal Opinion No.

2021-207, an ethics opinion issued

by the State Bar of California’s

Standing Committee on Professional

Responsibility and Conduct, lawyers

have heightened obligations when repre-

senting clients with diminished capacity.

The opinion emphasizes that a cli-

ent with diminished capacity may not

have the ability to make informed deci-

sions about his or her legal representa-

tion. With such clients, the committee

explains that a lawyer’s many ethical

duties do not change, but that the cli-

ent’s reduced capacity may require the

lawyer to change how the lawyer fulf‌ills

those duties. The committee identif‌ied

two principles of “particular impor-

tance” to guide a lawyer’s representa-

tion of a client with diminished capacity.

First, the lawyer must maintain a

“normal” client relationship with the

incapacitated client “as far as reason-

ably possible.” This means that to the

extent feasible, the lawyer should con-

tinue to let the client makes decisions

that are typically made by clients, like

the scope of representation. The stand-

ing committee explained that adhering

to this principle, however, may require

the lawyer to implement practices

designed to foster the client’s abil-

ity to make his or her own decisions.

For example, the lawyer may need to

change his or her communication style

Expanded Ethical Obligations for

Diminished-Capacity Clients

by speaking slower or communicating

with the client only in writing.

Second, the lawyer must recognize

that representing a client with dimin-

ished capacity may require the lawyer

to make “dicult decisions” in situa-

tions of factual or legal uncertainty.

For example, there may be a dearth

of authority construing a state’s lim-

ited capacity statute. Or there may be

uncertainties about the prognosis of

a medical condition, the reliability of

those claiming to speak for a client’s

interests, or the severity and immi-

nence of harm. These and similar situ-

ations may require a lawyer to make

“an informed professional judgment in

choosing among . . . imperfect alterna-

tives,” such as enlisting the assistance

of a family member, associating with

counsel experienced with questions of

capacity, or involving a medical profes-

sional when making decisions impact-

ing the client.

A lawyer’s ethical obligations may

require the lawyer to take arma-

tive action when a client shows signs

of diminished capacity, the opinion

explains. According to the standing

committee, this action may include

making subjective judgments about

the client’s capacity, consulting with

medical or other professionals, or con-

sidering whether the Americans with

Disabilities Act or other similar laws

require accommodations for the client.

Before taking such action, ABA

Litigation Section leaders caution that

one of the biggest risks to lawyers in

these situations is making the capacity

determination alone. Diminished capac-

ity can take many forms. Alzheimer’s

disease, dementia, signs of advancing

age, and head trauma are examples of

diminished capacity. “Reliance on pain

killers or drug use, generally, might also

present a case of diminished capacity,”

explains John M. Barkett, Miami, FL, for-

mer cochair of the Litigation Section’s

Ethics & Professionalism Committee.

“Mental health is also an important

consideration” when considering a

client’s decision-making ability, com-

ments Tiany A. Rowe, Washington, DC,

cochair of the Section’s Professional

Liability Litigation Committee. The legal

profession’s “increasing focus on men-

tal health has raised awareness and is

bringing this to the forefront,” Rowe

adds.

Because of the various symptoms and

causes of diminished capacity, lawyers

should take care “not to overstep, even

when having the best intentions,” Rowe

continues. This is in part why the stand-

ing committee suggests that a lawyer

consult with other counsel experienced

in diminished capacity representations.

A client’s informed consent is nec-

essary for almost all actions by a law-

yer, the committee notes. As a client’s

capacity diminishes, though, so too may

the client’s ability to provide consent.

That is why a lawyer may want to obtain

a client’s advanced consent to disclose

conf‌idential information, such as to a

doctor or family member, for assistance.

There also are important limita-

tions on this consent. The commit-

tee explains that the consent must

be informed within the meaning of

the Rules of Professional Conduct, in

that Rule 1.0.1(e) requires that a law-

yer has communicated “(i) the relevant

circumstances and (ii) the material

risks, including any actual and rea-

sonably foreseeable adverse conse-

quences of the proposed course of

conduct.” The consent also must be

revocable at any time, assuming the

client has the capacity to revoke in

the future. Additionally, if advanced

consent is necessary, Section lead-

ers suggest getting such consent in

writing or on video. An oral advanced

waiver is “strongly discouraged,” coun-

sels Barkett, especially one “without

witnesses present or that was not

recorded by video.”

By Anna K. Tsiotsias, Litig ation News Contributing Editor

SPRING 20 24 • VOL. 49 NO. 3

7 | A BA LITIGATION SECTION

ETHICS STRU GGLES IN THE LEGAL WOR LD