February 17, 2023
If the client’s decision-making abilities are impaired, the lawyer must attempt to maintain as normal a client-lawyer relationship as is reasonably possible under the circumstances. If the client has been diagnosed with a condition that impairs the client’s decision-making capabilities, the lawyer may consider protective action as allowed under MRPC 1.14. If the client has not been diagnosed with a mental incapacity, and the lawyer suspects that the client’s decision-making abilities are impaired, the lawyer may ask the client to submit to an appropriate medical evaluation to corroborate the lawyer’s beliefs.
References: MRPCs 1.2(a), 1.4, 1.6, 1.14, 3.3; RI-51, RI-76, RI-176, RI-261.
Lawyers inquire what steps they may take when faced with representing a client who is either legally incompetent or otherwise has been diagnosed with a mental incapacity. There are also times when lawyers may represent a client that the lawyer perceives may have a capacity issue and have concerns regarding the client’s ability to make competent decisions regarding the representation. MRPC 1.2(a) provides:
… A lawyer shall abide by a client’s decision whether to accept an offer of settlement or mediation evaluation of a matter. …
The commentary to MRPC 1.2(a) states:
In a case in which the client appears to be suffering mental disability, the lawyer’s duty to abide by the client’s decisions is to be guided by reference to Rule 1.14.
MRPC 1.14 provides:
(a) When a client’s ability to make adequately considered decisions in connection with the representation is impaired, whether because of minority or mental disability or for some other reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client.
(b) A lawyer may seek the appointment of a guardian or take other protective action with respect to a client only when the lawyer reasonably believes that the client cannot adequately act in the client’s own interest.
The commentary to MRPC 1.14 states:
… The fact that a client suffers a disability does not diminish the lawyer’s obligation to treat the client with attention and respect. If the person has no guardian or legal representative, the lawyer often must act de facto as guardian.
Importantly, MRPC 1.6 provides that a lawyer may not reveal confidences and secrets.
MRPC 1.6(c) provides the limited circumstances in which a lawyer may reveal confidences or secrets including:
- With the consent of the client;
- When required by law or by court order;
- To rectify the consequences of a client’s illegal or fraudulent act for which the lawyer’s services have been used;
- The intention of the client to commit a crime and information necessary to prevent that crime; and
- To establish or collect a fee or defend against accusations towards the lawyer or lawyer’s employees or associates of wrongful conduct.
The ethical rules must be read in tandem to assist the lawyer in assessing a client’s capacity to assist in the client’s own matter and to determine what protective action, if any, is necessary. For example, the requirements built within MRPC 1.6 must be balanced with the duties outlined in MRPC 3.3.
Lawyers who represent a client with a diagnosed disability often refer to MRPC 1.14 for guidance. MRPC 1.14(b) provides that a lawyer may “seek the appointment of a guardian or take other protective action with respect to a client only when the lawyer reasonably believes that the client cannot adequately act in the client’s own interest (emphasis added).” A lawyer may only have reasonable belief when there is a diagnosis from a medical professional, as a non-medically trained lawyer is not qualified to make such a determination. When a lawyer has a client who has been diagnosed with a mental incapacity and the lawyer has concerns that the client cannot act in his or her own interest, then an attorney must “as far as reasonably possible, maintain a normal client-lawyer relationship with the client” (see MRPC 1.14(a)) and may take reasonable protective actions including seeking the appointment of a guardian, conservator, guardian ad litem, next friend, or other protective action as deemed necessary.1 It is not required for the lawyer to seek protective action, but is instead discretionary where deemed necessary to carry out the objectives of the representation competently.
Lawyers should take the least intrusive steps necessary to protect the client’s interests. The lawyer must also ensure that they maintain a good working relationship with the client. In order to do so, the lawyer must communicate with the client regarding the lawyer’s concerns and possible options for protective action as required under MRPC 1.4.
If the client already has a protective action that has been put in place, i.e., a guardian, the client may not have any power to make legally binding decisions. In this circumstance, it is necessary for the lawyer to review the probate court order(s) as to what decisions the client may or may not take. However, it should be noted that “a client lacking legal competence often has the ability to understand, deliberate upon, and reach conclusions about matters affecting the client’s own well-being. Furthermore, to an increasing extent the law recognizes intermediate degrees of competence. …If a legal representative has already been appointed for the client, the lawyer should ordinarily look to the representative for decisions on behalf of the client.”2 However, the lawyer should not necessarily ignore the client’s own conclusions and beliefs as to how the matter should proceed.
A lawyer may be concerned with how to move forward with representation if the client seems to have a capacity issue that may limit the client’s decision-making abilities. Some potential signs of diminished capacity include3:
- Circular conversations
- Paranoid statements or accusations
- Hallucinations, illusions, or misperceptions
- Nonsensical speech, incoherence, or use of made-up language
- Expressing erratic suspicions or hostility
Many individuals attempt to hide or compensate for indications of incapacity. Therefore, a lawyer must be vigilant in the lawyer’s communications with the client to ensure the client understands the legal process and decisions to be made. “If a lawyer believes 89 a client is unable to make decisions concerning the representation or is incompetent, the lawyer should seek independent corroborating reports from professionals or seek the appointment of a guardian or conservator.” See Ethics Opinion RI-51.
If the lawyer intends to petition4 the probate court to request that the client be found legally incompetent, the lawyer must first weigh how this protective action may affect the client’s current case. The lawyer must also balance the maintenance of the attorney-client relationship and the potential conflict of interests with the proposed protective action. Further, the lawyer must be careful when providing information to the probate court or any other third party when determining a client’s incapacity. “A lawyer may not disclose to third parties observations or impressions formed about a current or former client as a result of representing that client unless disclosure is permitted by MRPC 1.6(c).” See RI-261. Therefore, a lawyer who learns through representation that the client may be incapacitated or unable to make decisions on the subject of the representation may struggle with whether he or she may disclose the client’s condition to anyone as this is not an allowable reveal of confidences or secrets under MRPC 1.6(c).
If the person has no medical diagnosis and the person has no guardian or legal representative, the best course of action for the lawyer is to communicate the lawyer’s concerns to the client and request that the client submit to an evaluation by an appropriate medical professional to determine what, if any, steps should be taken.
If the client refuses to submit to a proper medical evaluation, but the lawyer is able to continue representation, he or she must do so to the best of the lawyer’s ability. See MRPC 1.14 Commentary. If the lawyer is unable to continue representation due to the client’s refusal to communicate, refusal to take into account the lawyer’s legal advice, demonstration of hostility towards the lawyer, etc. due to the client’s possible mental incapacity, the lawyer may have no option other than to request to withdraw from the matter.5 This should be a last resort and all other options should be explored first.
Despite the client having or possibly having a mental incapacity that affects decision making, the lawyer must exercise professional judgment and continue legal representation to safeguard the client’s best interests and the attorney-client relationship. If there is a diagnosis, the lawyer may seek protective action following communication with the client. If there is no diagnosis, the lawyer should consult with the client to encourage a medical evaluation but continue to assess what ramifications that discussion and any evaluation results may have on the representation.
1. See Ethics Opinion RI-76.
2. See MRPC 1.14 Commentary.
3. This is not an all-inclusive list. These are examples of issues relayed by attorneys regarding their clients on the ethics helpline.
4. “A lawyer may not undertake representation which requires a client to possess the requisite competence to execute legal documents and also subjects the client to proceedings which, if successful, would adjudge the client to be incompetent to handle legal affairs.” See Ethics Opinion RI-176.
5. If the lawyer is considering withdrawal, it is recommended that the lawyer contact the Ethics Helpline to consider all options prior to filing the request for withdrawal.