Written by attorneys · grounded in primary & secondary sources — see below
A measure that a lawyer may take to safeguard the interests of a client whose capacity to make decisions is diminished. The lawyer must reasonably believe the client faces substantial physical, financial, or other harm and cannot adequately protect those interests. Such measures include consulting appropriate individuals or entities and, when warranted, seeking appointment of a guardian, conservator, or guardian ad litem.
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Model Codes
Course Outlines
How it applies
Common Examples
2
Attorney Seeks Guardianship for Widow
Perry Pratt represents Paula Pierce, a widow who insists on gifting her sole asset, an apartment building worth over eight hundred thousand dollars, to her handyman for one dollar because her deceased husband approved the transfer in a dream. Pierce accurately recalls lease details and deposits rents each month yet remains convinced her husband will return to manage the property. Pratt reasonably concludes that Pierce cannot protect her financial interests and petitions the court for appointment of a guardian to review the proposed transfer.
Attorney Consults Family About Manic Episode
Preston Pratt represents Phuong Pham, who discloses a history of bipolar disorder and admits she stopped taking medication weeks earlier. During the meeting Pham speaks rapidly, projects tripled sales for a new store, and demands that Pratt immediately sign a personal guarantee exposing her to liability far beyond her assets. Pratt contacts Pham's adult children to arrange medical evaluation and stabilization while disclosing only the facts necessary to prevent execution of the guarantee.
Common questions
Frequently Asked
4
When may a lawyer take protective action for a client?+
A lawyer may take protective action when the lawyer reasonably believes the client has diminished capacity, faces substantial physical, financial, or other harm unless action is taken, and cannot adequately act in the client's own interest. The lawyer must first attempt to maintain a normal client-lawyer relationship to the extent possible. Protective steps are limited to those reasonably necessary to protect the client.
Supporting sources
Does taking protective action permit disclosure of confidential information?
Rule 1.14(c) provides that information relating to the representation remains protected by Rule 1.6. When taking protective action the lawyer is impliedly authorized to reveal information, but only to the extent reasonably necessary to protect the client's interests. Disclosures must therefore be narrowly tailored to the protective purpose.
Supporting sources
What factors support a reasonable belief that a client cannot act in her own interest?+
Evidence of cognitive lapses, such as drifting off mid-sentence or repeating questions, combined with a fixed delusion about a proposed transaction and lack of awareness of its financial consequences, can establish that the client cannot adequately protect her interests. Sustained competence in routine matters does not necessarily negate the need for protection when the specific decision at issue carries substantial risk of harm.
Supporting sources
May a lawyer seek appointment of a guardian without first consulting family members?+
The rule permits a lawyer to consult individuals or entities that can protect the client and, in appropriate cases, to seek appointment of a guardian. The choice of measure depends on what is reasonably necessary under the circumstances. When family members are available and positioned to intervene, consultation is often the least intrusive first step before pursuing formal guardianship.
Supporting sources
Professional ResponsibilityCompetence, legal malpractice, and other civil liability · Exercising diligence and careMPREFoundational