Maryland's Major Rethinking of Model Rule 1.14

• Date: 01 July 2023
• Author: Charles P. Sabatino

Bifocal July - August 2023Vol. 44, No. 6

116

You’ve been appointed to represent Mr. Jones,

an older man who is the respondent in a

guardianship case. His adult son is the petitioner who

believes his father, who has been living alone for the

last 10 years, is no longer able to live independently

and manage his own aairs. As you patiently

interview your client, you learn of two worrisome

incidents that the petitioner and court do not even

know about. Mr. Jones made two substantial transfers

of money as a victim of an obvious sweetheart scam.

Relying on Model Rule 1.14(b) and (c), you believe

that an appropriate protective action is to inform

the plainti’s son of the incidents since your own

assessment of Mr. Jones convinces you that he really

does need a guardian.I

I Use of the terminology “guardian” or “guard-

ianship” in this article also includes that of “conserva-

tor.”

Whether you feel the lawyer’s action is ethically

justied or ethically reprehensible, the truth is that

Model Rule 1.14 does not clearly tell you. Take a

moment to revisit the Model Rule:

Rule 1.14. Client with Diminished

Capacity

(a) When a client’s capacity to make ade-

quately considered decisions in connection

with a representation is diminished, wheth-

er because of minority, mental impairment

or for some other reason, the lawyer shall,

as far as reasonably possible, maintain a

normal client-lawyer relationship with the

client.

(b) When the lawyer reasonably believes

that the client has diminished capacity, is

at risk of substantial physical, nancial or

other harm unless action is taken and can-

not adequately act in the client’s own inter-

est, the lawyer may take reasonably necessary

protective action, including consulting with in-

dividuals or entities that have the ability to take

action to protect the client and, in appropriate

cases, seeking the appointment of a guardian ad

litem, conservator or guardian.

(c) Information relating to the representation of

a client with diminished capacity is protected by

Rule 1.6. When taking protective action pursu-

ant to paragraph (b), the lawyer is impliedly au-

thorized under Rule 1.6(a) to reveal information

about the client, but only to the extent reason-

ably necessary to protect the client’s interests.

The Maryland Courts version of Rule 1.14 was

essentially identical to this and cited as Md. Rules

Maryland’s Major Rethinking of

Model Rule 1.14

By Charles P. Sabatino