Vol. 76 No. 7. Thinking Ethics: Revised Rule for Representing Clients with Diminished Capacity.

Author:By Professor Sheila Reynolds

Kansas Bar Journal

Ethics Columns.


Vol. 76 No. 7.

Thinking Ethics: Revised Rule for Representing Clients with Diminished Capacity

Vol. 76 No. 7 July/August 2007Thinking Ethics: Revised Rule for Representing Clients with Diminished CapacityBy Professor Sheila Reynolds Kansas lawyers who represent clients with diminished capacity have lamented the lack of ethical guidance in the relevant Kansas Rule of Professional Conduct 1.14, with its accurate but unhelpful comment that "the lawyer's position in such cases is an unavoidably difficult one." Amended Rule 1.14, effective July 1, provides substantially more guidance. The Kansas Supreme Court adopted the exact revision recommended by the ABA Ethics 2000 Commission, which placed in the Rule and Comments law developed in the past 25 years by court decisions, ABA Ethics Opinions, and the Restatement of Law Governing Lawyers, § 24.

To emphasize the fact that client capacity exists on a continuum, terminology describing the client's condition has been changed from "mental impairment" to "diminished capacity."(fn1 )Capacity continues to be measured in connection with decisions in the representation, rather than on a wider variety of life issues. Thus a lawyer evaluating client capacity must concentrate on the client's ability to make decisions about the issues involved in the current representation.

New Comment 6 implies that it is usually the lawyer alone who makes the decision of whether the client's capacity is so diminished as to permit some protective action, noting that in certain circumstances, the lawyer may seek guidance from an appropriate diagnostician. The comment provides that in making the evaluation, the lawyer should consider factors, such as the client's ability to explain reasons for a decision, inconsistent state of mind, appreciation of the consequences of a decision, the fairness of the decision, and whether the decision is consistent with what the lawyer knows of the client's long-term commitments and values.

Paragraph (a) also continues the requirement that the lawyer as far as reasonably possible maintain a normal client-lawyer relationship, even when the client's capacity is diminished. Paragraph (b) of the previous Rule gave a lawyer discretion to seek guardianship for the client or take other protective action when the lawyer reasonably believed that...

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