Professional Conduct and Legal Ethics, 0218 COBJ, Vol. 47, No. 2 Pg. 44

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47 Colo.Law 44

PROFESSIONAL CONDUCT AND LEGAL ETHICS

Vol. 47, No. 2 [Page 44]

The Colorado Lawyer

February, 2018

PROFESSIONAL CONDUCT AND LEGAL ETHICS

This article discusses the ethical representation of clients with diminished capacity and examines the Colorado Rules of Professional Conduct and CBA Formal Ethics Opinions that address this issue.

As more of the American population ages, the prevalence of dementia and associated medical issues increases as well. Much of that diminished capacity1 goes undiagnosed. An estimated 11% of the population aged 45 or older has some degree of self-perceived diminished capacity, yet three-quarters of these cases are undiagnosed.2 As this population grows, so do its legal needs. This presents a difficult dilemma for lawyers, sworn by the Colorado Rules of Professional Conduct (Colo. RPC or Rules) to keep client confidences while compelled by those same Rules to “maintain a normal client–lawyer relationship” with diminished-capacity clients.3 Yet few lawyers have any professional training in psychology or geriatrics.

The professional guidance on the ethics of representing clients with diminished capacity is limited. In 1996, the American Bar Association (ABA) Standing Committee on Ethics and Professional Responsibility published Formal Opinion 96-404, “Client Under a Disability.”4 Some state bar ethics and disciplinary committees have also issued opinions touching on the subject, but far too often lawyers learn about the perils of their conduct in representing clients with diminished capacity through formal disciplinary actions when they stray beyond the ethical limits.

In 2015, the CBA Ethics Committee took a major step forward in publishing Formal Opinion 126, “Representing the Adult Client with Diminished Capacity.”5 This opinion took on the challenge of providing guidance to Colorado lawyers when a lawyer realizes that the client might be suffering from some diminishment in capacity, and the lawyer’s representation of the client is not related to the client’s capacity.6 In 2017, the CBA Ethics Committee published a companion opinion, Formal Opinion 131, “Representing Clients with Diminished Capacity Where the Subject of the Representation is the Client’s Diminished Capacity.”7 Like bookends, these opinions look at the ethical implications both from the perspective of the lawyer who incidentally discovers or suspects that a client has diminished capacity, and from the perspective of the lawyer who is representing a client in a protective proceeding or who is appointed by the court as a guardian ad litem in such a proceeding.8

The reality is that all lawyers judge the capacity of their clients, typically at the first meeting. Yet the vast majority of lawyers would probably deny that they do any client capacity assessment. This is likely because for lawyers whose representation takes place in any subject area other than elder law and capacity-related representation, the capacity assessment is limited and minimal. The typical lawyer’s “capacity assessment” consists of meeting the client and asking about his desire for representation. The client typically relates the most basic information about himself and his reason for seeing the lawyer, and the “capacity assessment” ends there. The lawyer likely does not even realize she has done an assessment. The mere fact that the client holds a rational conversation and is able to explain why he needs the lawyer’s assistance is sufficient for the lawyer to “determine” capacity.

But after the brief introductory discussion, what happens if the lawyer becomes uncomfortable with the client’s ability to form a client–lawyer relationship? And with an ongoing representation, what should the lawyer do if she begins to notice a change in the client’s behaviors and responses, or simply begins to suspect something is not quite right? Most lawyers have no formal training or background in psychological evaluation. How are lawyers to appropriately proceed?

Assessing Diminished Capacity

Colo. RP C 1.14, Client with Diminished Capacity, is the primary resource for the lawyer in these circumstances. This Rule is short but packed with guidance. That guidance, however, is largely subject to the lawyer’s interpretation. As such, the comments to the Rule are particularly instructive. While it is highly recommended to always read Rule comments, it is especially important when parsing Rule 1.14.

Paragraph 1.14(a) is the only mandatory directive within the Rule. It requires that when a client’s capacity is diminished, the lawyer “shall, as far as reasonably possible, maintain a normal client–lawyer relationship with the client.” But how does one determine if the client has diminished capacity? CBA Opinion 126 addresses in some detail how to assess the client’s capacity and how to maintain a “normal client–lawyer relationship with the client.”

The question of how to proceed brings the lawyer to paragraph (b), which states that when the lawyer “reasonably believes” the client has some level of diminished capacity, the lawyer may take “reasonably necessary protective actions.” Comment 6 tells us that such actions include seeking guidance from an appropriate diagnostician. What that guidance entails is left to the lawyer’s interpretation.

The threshold question is, what is a reasonable belief? Rule 1.0, Terminology, provides a definition: “‘Reasonable belief’ or ‘reasonably believes’ when used in reference to a lawyer denotes that the lawyer believes the matter in question and that the circumstances are such that the belief is reasonable.” But this definition is circular and does not answer the question.

Even expanding the review of Rule 1.0 to include its individual definitions of “belief” and “reasonable” does not provide much better guidance. A “belief” “denotes that the person involved actually...

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