TRUST AND ESTATE LAW
GERARD (“G.”) DEFFENBAUGH AND DAVID W. KIRCH, J.
This article discusses CBA Formal Ethics Opinions 126, 130, 131, and 132, which provide guidance for handling clients and case information in trust and estate and elder law matters.
The Colorado Bar Association Ethics Committee (the Committee) recently released several Formal Ethics Opinions that directly impact Colorado trust and estate and elder law practitioners. Formal Ethics Opinions are issued for “advisory” purposes only.1 This article summarizes four recent Formal Ethics Opinions and discusses their impact. Practitioners are cautioned to review opinions in full when dealing with a specific issue and to be mindful that the opinions are not dispositive of every ethical quandary that may arise.
CBA Formal Ethics Opinion 126
In Formal Ethics Opinion 126, Representing the Adult Client with Diminished Capacity, the Committee addressed ethical issues that arise when an attorney believes an adult client has diminished mental capacity.2 This Formal Ethics Opinion does not address a client’s diminished capacity due to being a minor nor representation of a client in an adult protective proceeding.3
Maintaining the Attorney–Client Relationship
Rule 1.14 of the Colorado Rules of Professional Conduct (the Rules) requires an attorney representing a client with diminished mental capacity, as far as reasonably possible, to maintain a “normal” attorney–client relationship with the client, on the basis that he or she may have legally sufficient ability to understand, deliberate upon, and reach conclusions about matters affecting the client’s own well-being.4
Frequently, a client in this situation may wish for family members to participate in conferences with the attorney. Te presence of such persons generally should not affect the applicability of the attorney–client evidentiary privilege.5However, in such situations the attorney must keep the client’s interests foremost and look to the client to make decisions on the client’s behalf, with the exception of authorized protective action under Rule 1.14(b).6
Applying this guideline to real-life situations involving clients with diminished capacity is rarely simple or easy. Te attorney must exercise professional judgment regarding the extent to which the client understands the matters under consideration. Further, the attorney must distinguish between situations in which the client is merely making poor decisions but has sufficient capacity and situations in which poor judgment may be the result of diminished capacity.
Rule 1.14 does not define “capacity,” but simply refers to the client’s “capacity to make adequately considered decisions in connection with rep-resentation.”7 An attorney should consider and balance the following factors with regard to a client’s diminished capacity:
■ the ability to articulate reasoning leading to a decision,
■ the variability of state of mind and ability to appreciate consequences of a decision,
■ the substantive fairness of a decision, and
■ the consistency of a decision with the known long-term commitments and values of the client.
If an attorney is uncertain about the client’s mental state, the attorney can recommend that the client obtain a written opinion from a doctor about the client’s mental abilities.9 Te attorney should retain such a letter in the client’s file, possibly as evidence of the client’s capacity near the time the client executed estate planning documents.10
Managing the Client
The type and degree of complexity of the document the client executes (e.g., will, trust, power of attorney, or contract) can affect the legal standard for capacity. For example, to make a valid will the testator or testatrix must be “of sound mind,” which reflects a potentially low bar for capacity.12
An attorney may ask the client questions as a way for the attorney to gauge the client’s mental status and assess how to proceed with regard to the client’s representation. Questions about the current date, the current president, the names and ages of children and grandchildren, and the types and value of assets the client possesses are instructive. Attorneys should be sensitive to how they ask such questions and how they interpret the answers. Answers to such questions are not determinative of the client’s capacity, and an attorney is not necessarily an expert on mental capacity issues. However, such answers can be helpful in determining the extent and course of the attorney’s representation and services. In some instances, more formal testing may be desirable.
CBA Formal Ethics Opinion 130
In Formal Ethics Opinion 130, Online Posting and Sharing of Materials Related to the Representation of a Client, the Committee addressed the interaction between matters of public record and the Rules on confidentiality. Formal Ethics Opinion 130 expressly identifies the general practices of posting and sharing litigation materials, which includes probate litigation, as being subject to the Rules.13 As specified in Formal Ethics Opinion 130, the Rules cover information contained in public records that relates to the representation of a current client.14