Vol 30, No. 6, #3. Ethically Speaking - Prospective Clients and Clients with Diminished Capacity.

• Author: Author: John M. Burman

Wyoming Bar Journal

2007.

Vol 30, No. 6, #3.

Ethically Speaking - Prospective Clients and Clients with Diminished Capacity

Wyoming Bar JournalVol 30, No. 6, #3Issue: December, 2007Author: John M. BurmanEthically Speaking - Prospective Clients and Clients with Diminished CapacityA common reason that a person needs legal representation is that the person is not legally able to act for himself or herself. The person may be a minor, who until reaching the age of majority is legally precluded from doing some things alone: "Upon becoming eighteen (18) years of age, an individual reaches the age of majority and as an adult acquires all rights and responsibilities granted or imposed by statute or common law, except as otherwise provided by law." Or the person may be incapacitated by old age or a physical, emotional, or mental disorder. Whatever the reason for the disability, the person may need someone to act on his or her behalf, at least in some respects, and lawyers are often called upon to assist in facilitating that end. As discussed below, entering into an attorney-client relationship with a person who lacks the capacity to enter into a contract (the attorney-client relationship in Wyoming is considered to be contractual) is problematic, though it can, and often must, be done.

Even if a prospective client has the requisite capacity to enter into an attorney-client relationship, problems may arise later. A client may become incapacitated after the representation has begun. All of us, for example, either die or grow older. A common consequence of growing older is losing one's mental faculties, at least in part. A client in the prime of life may fall ill or become the victim of an accident, either of which may render a once competent individual unable to act on his or her behalf in some respect(s). If that occurs, an attorney's responsibilities shift. How they shift and how an attorney should behave are also discussed below.

Changes to the Rules of Professional Conduct

The Wyoming Rules of Professional Conduct ("the Rules") have long contained provisions relating to an attorney's obligations to a client who lacks capacity. The new Rules, and the ones previously in effect, both contained a Rule (1.14) devoted to the issue. New Rule 1.14, however, has been revised and expanded, giving additional direction to lawyers who represent an incapacitated person. Not surprisingly, this column addresses an attorney's duties under the new Rule 1.14, with the goal of informing attorneys about the changes and the new possibilities that are open to them given those changes.

Unfortunately, neither the old Rules nor the new ones discuss the formation of an attorney-client relationship with any client, let alone a client who lacks capacity. As the Scope section of the new Rules notes, "for purposes of determining the lawyer's authority and responsibility, principles of substantive law external to these Rules determine whether a client-lawyer relationship exists." We turn first, therefore, to a consideration of the "substantive law" in Wyoming to determine how an attorney should form an attorney-client relationship with a prospective client who lacks capacity.

Prospective Clients with Diminished Capacity

One of the general prerequisites to entering a contract is that the person have the capacity to do so. Capacity is not a static condition. Rather, "[c]apacity to contract may be partial and its existence in respect of a particular transaction may depend upon the nature of the transaction or...