The Forgotten Rule Of Professional Conduct – Representing A Client With Diminished Capacity

Abstract

FIRST PARAGRAPH(S)|All attorneys who maintain client-lawyer relationships must continually, or at least periodically, assess each client's mental capacity. Under the Model Rules of Professional Conduct, this assessment is a two-step process. First, the attorney must ensure that an individual has enough mental capacity to establish or maintain a normal client-lawyer relationship, and second, the attorney must ensure that the individual has enough mental capacity to legally bind him or herself in the desired transaction or intended course of action. If the attorney determines that at any point in time, a particular client has diminished capacity, then Model Rule 1.14 requires the attorney to take whatever extra steps are required to maintain a normal client-lawyer relationship. However, if the client does have diminished capacity and such diminished capacity puts the client at risk of substantial harm, then the attorney is allowed under Model Rule 1.14 to take certain protective actions on behalf of the client, even though the diminished capacity means that the client cannot consent to those actions, and even if the attorney's actions permitted under this rule actually violate other canon rules governing the client-lawyer relationship...