Login | October 19, 2017

Clients with diminished capacity require attention and respect

GLENN E. HEILIZER
Law Bulletin columnist

Published: August 14, 2017

In the critically acclaimed television series “Better Call Saul,” the main character is Jimmy McGill, a lawyer with mixed motives and a shaky ethical compass.

In a recent episode, McGill boards a busload of senior citizens — after paying the driver to fake a mechanical breakdown — then skillfully manipulates the vulnerable pensioners into joining his class action against their nursing home.

Beyond McGill’s plainly improper solicitation methods, his tactics could more subtly violate Rule 1.14 of the Rules of Professional Conduct, which protects clients with diminished mental capacity.

Rule 1.14 applies 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.”

Under Subsection (a), lawyers must try to maintain a “normal client-lawyer relationship.” As the comments explain, this includes full and open communication, advice and other assistance, so that client can understand options and make meaningful decisions to the greatest possible extent.

In more severe instances involving a risk of physical or financial harm, Subsection (b) authorizes “reasonably necessary protective action, including consulting with individuals or entities that have the ability to take action to protect the client and, in appropriate cases, seeking the appointment of a guardian ad litem, conservator or guardian.”

Sole practitioners should become familiar with Rule 1.14, and be prepared if they suspect a client may have diminished capacity.

Assessment of the client

Though lawyers are not qualified to make psychiatric diagnoses, the comments to Rule 1.14 require best efforts in determining whether a client may lack capacity. To assist with this process, the American Bar Association and American Psychological Association have issued a useful handbook.

The handbook advises practitioners to watch for certain “red flag” behaviors, such as difficulty remembering recent events, repetition of questions, complete deference to a spouse or child, disorientation and inappropriate or excessive emotions. Ragged physical appearance, sloppy or unsuitable clothing and poor hygiene also could signal an impairment.

If a client’s behavior raises a concern, the comments to Rule 1.14 advise counsel to reflect on whether the individual’s decisions appear rational, and to consider further assessment, including “guidance from an appropriate diagnostician.”

Maintaining a “normal” attorney-client relationship

Lawyers must take seriously the obligation under Rule 1.14(a) to maintain a “normal client relationship,” if permitted by the circumstances. The comments make clear that impaired individuals may be able to “understand, deliberate upon and reach conclusions about matters affecting [their] own well-being” and any disability “does not diminish the lawyer’s obligation to treat the client with attention and respect.”

Accordingly, counsel must communicate and consult with an impaired client to the fullest degree possible, even where the client has a legal representative. See In re Szymkowicz, 124 A.3d 1078 (D.C. 2015) (attorney violated Rule 1.14 when she failed to communicate with client regarding decisions by person holding client’s power of attorney).

Further, if the assistance of family members or other individuals could foster the attorney-client relationship, per the comments to Rule 1.14, their presence “generally does not affect the applicability of the attorney-client evidentiary privilege.”

Taking steps to protect the client

When circumstances indicate potential physical or financial harm could occur, the comments to Rule 1.14 suggest various options, including family consultations, involvement of support groups, other professional services, a durable power of attorney or referral to adult-protective agencies. If warranted, a guardian ad litem, conservator or guardian may be appointed.

However, taking protective action may not be considered mandatory in Illinois.

According to a recent Attorney Registration & Disciplinary Commission Hearing Board panel, “[W]e do not read Rule 1.14(b) to impose an affirmative duty on attorneys. Rather, the [r]ule guides attorneys as to when they may take protective steps when they believe a client has diminished capacity. … The [r]ule and [c]omments do not state that a lawyer shall, or is required to, take such measures, nor has our research revealed another Illinois disciplinary case in which Rule 1.14(b) was the basis of a finding of misconduct.” In re Bascos, Commission No. 2013PR00052 (Dec. 9, 2016).

Beware of conflicts

Representing an impaired client requires extra vigilance to avoid potential conflicts of interest.

For example, an attorney should not simultaneously represent the client and the petitioning guardian, or act for other third parties, due to potential conflicts. See Attorney Grievance Commission v. Framm, 144 A.3d 827 (Md. 2016) and Wyatt’s Case, 982 A.2d 396 (N.H. 2009).

Additionally, counsel should not obey the wishes of family or close friends, if they conflict with the client’s reasoned instructions. See Runge v. Disciplinary Board, 858 N.W.2d 901 (N.D. 2015) (rejecting disciplinary complaint by daughter of elderly client where attorney assisted client in revoking daughter’s power of attorney and obtaining discharge from nursing home against medical advice; there was no guardianship and the attorney’s communications with the client “demonstrated [the client’s] ability to articulate the reasons for his desire to leave the nursing home and to appreciate the consequences of his decision”).

Even when a lawyer represents a guardian, not the impaired client, the comments to Rule 1.14 impose an obligation to “prevent or rectify” misconduct by the guardian that is adverse to the client.

Lastly, billing an impaired client for legal services could be subject to later challenge. See Dayton Bar Association v. Parisi, 965 N.E.2d 268 (Ohio 2012) (attorney “engaged in conduct prejudicial to the administration of justice” by paying her own fees during guardianship proceeding and charging fees considered excessive by the court).

In sum, clients with diminished capacity require special attention and respect. If impairment is suspected, counsel should document his or her observations, conclusions and actions taken, together with all client communications and decisions.

Appropriate measures will protect the client in the short term and could prevent future lack-of-capacity challenges to a transaction, estate plan or court settlement.

Glenn E. Heilizer is a veteran litigator and sole practitioner based in Chicago, and is the founder of the Sole Practitioners Bar Association of Illinois. Heilizer handles commercial disputes in the federal, state and appellate courts in Illinois and Wisconsin. He welcomes all questions and comments, and can be reached at glenn@heilizer.com.


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