Normal Relationship First

Protective Action for Diminished Capacity

Normal Relationship First

Rule 1.14 begins with a duty, not a power. Paragraph (a) provides that when a client's capacity to make adequately considered decisions in connection with a representation is diminished, “whether because of minority, mental impairment or for some other reason,” the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship.¹ Paragraph (b) speaks more softly: the lawyer may take reasonably necessary protective action, and only when its conditions are met.² The trigger in (a) is diminished capacity itself. Minority and mental impairment are examples, and “some other reason” covers the rest.

The disciplinary exposure under paragraph (a) is real but narrow. Professors Hazard and Hodes and attorney Jarvis call its “chief mission” “simply to ensure that lawyers adequately think through the difficult problems associated with representation of clients with some form of diminished capacity.” A lawyer who acts reasonably and in good faith under such circumstances should not fear sanction, but “a lawyer who is oblivious to the special needs of clients with diminished capacity could be disciplined.”³

The starting point is respect for the client. Each situation is addressed in light of the individual circumstances, with a general presumption in favor of allowing the client the dignity of self-determination to the extent possible.⁴ Protective action is the exception to that presumption, not an alternative way of practicing.

Capacity is not an all-or-nothing question, and the lawyer should not treat it as one. If the client can understand and evaluate some matters but not others, the lawyer should accept the client's directions on the subjects the client is competent to decide and take protective measures on the rest.⁵ Those measures still have to satisfy paragraph (b).⁶

A diagnosis will not settle the question for the lawyer. Comment 6 to Rule 1.14 allows a lawyer to “seek guidance from an appropriate diagnostician,” but the approach is no panacea. A medical diagnosis of “dementia” can vary enormously with the diagnostic methodology used, and because legal capacity is pivotal, that variation can be very discomforting to a lawyer facing a possibly impaired client.⁷ The diagnosis informs the lawyer's judgment. It does not replace the question paragraph (a) actually asks: can this client make an adequately considered decision in connection with this representation?

The lawyer's first tool is a change in method. A lawyer who represents a client with diminished capacity must be prepared to devote greater personal attention, give more detailed and repeated explanations, consult other important persons in the client's life, and accommodate the client's disabilities.⁸ Specific techniques include shorter meetings in place of lengthy conferences, documents in larger type, less ambient noise and background glare, facing the client during interviews, speaking more slowly than usual, and asking open-ended questions rather than questions that call only for “yes” or “no.” Videotaping is more controversial, with proponents and detractors equally confident of their positions.⁹ Allowing the client to bring along family members or friends may give the client comfort and confidence, and it brings in people who know the client and better understand her communications.¹⁰

The duty has an outer edge, marked by the words “as far as reasonably possible.” When “any attempt at maintaining a normal attorney-client relationship is futile because the client simply is incapable of meaningful participation in the representation,” “an especially heavy and delicate responsibility falls upon [the client's] lawyer.”¹¹ Futility, however, is not a license. Paragraph (b) permits protective action only when the lawyer reasonably believes the client has diminished capacity, is at risk of substantial physical, financial, or other harm unless action is taken, and cannot adequately act in the client's own interest.¹² The common error is to leap from the words “diminished capacity” to guardianship or other protective action. The first question is whether accommodation and ordinary representation still work. For the client in the boundary dispute they did, because the accommodations preserved that client's ability to decide. The next section takes up the conditions of paragraph (b).