Challenging and unique ethical considerations
By Helen Hierschbiel
With the aging of America, more lawyers may find themselves in the difficult and unexpected position of representing a client whose mental capacity is impaired. In the normal lawyer-client relationship, the lawyer acts as the client’s agent to carry out the client’s lawful wishes. The lawyer advises the client on the law, presents options and ultimately leaves the important decision-making to the client. The smooth operation of this relationship presumes the client is capable of understanding the options presented and of making important decisions. It also presumes the lawyer can and does clearly communicate with the client.1 When a client’s mental capacity is limited, whether by reason of infirmity or minority,2 maintaining a working normal lawyer-client relationship presents challenging and unique ethical considerations for the lawyer.
WHERE TO BEGIN?
The lawyer should start with the assumption that the client is competent. Cloud v. U.S. Bank, 280 Or. 83, 90, 570 P2d 350 (1977). Even a client who has been appointed a guardian is not presumed to be incompetent. ORS 125.300(2). Whether representing adults with diminished capacity or minors who are considered under a legal incapacity, the lawyer should take the time to personally assess the client’s actual mental capacity as well as the legal framework of the particular case. ABA Model Rule of Professional Conduct 1.14 [comment 6] provides examples of factors for lawyers to consider in making the capacity assessment. The lawyer should keep in mind that the client’s capacity may change depending on the client’s condition or depending on the specific task presented.3
Recognizing the limitations of the client, the lawyer must endeavor to maintain a normal relationship with the client. OSB Formal Op. No. 2000-159. ABA Model RPC 1.14(a) explains, '[w]hen a client’s ability to make adequately considered decisions in connection with the representation is impaired, whether because of minority, mental disability or for some other reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship.' ABA Model RPC 1.2(a) defines a normal attorney-client relationship as one in which the attorney 'shall abide by a client’s decisions concerning the objectives of representation.' Thus, the lawyer owes the impaired client, just like any other client, the duty to communicate, the duty of zealous representation, the duty to preserve confidentiality and the duty of loyalty, to mention a few. See, e.g., DR 6-101, DR 7-101(A), DR 4-101, DR 5-101 and DR 5-105.
Because a lawyer is obligated to maintain a normal relationship with the client, his duty of communication with an impaired client is heightened. Stevens, Representing the Impaired Client, OSB Bulletin 31 (May 1995). See also, People ex re. Myers v. Briggs, 263 NE 2d 109 (Ill SupCt 1970)(attorney’s inability to communicate with illiterate deaf mute does not justify delays in case). OSB Formal Op No. 2000-159 examines the lawyer’s duties to a parent with diminished capacity in dependency and termination of parental rights proceedings. The opinion states, '[s]hort of a client’s being totally noncommunicative or unavailable due to his or her condition, a lawyer can most often explain the decisions that the client faces in simple terms and elicit a sufficient response to allow the lawyer to proceed with the representation.'4 Although the lawyer should be mindful when doing so, he may also look to third parties for assistance in understanding a client’s wishes. See e.g., ABA Model RPC 1.14 [comment 3]. Ultimately, the lawyer should not substitute his judgment for the client’s in decisions that the lawyer must ethically defer to the client.
PROTECTIVE ACTION—When, What and How
DR 7-101(C), which tracks ABA Model RPC 1.14(b), provides:
A lawyer may seek the appointment of a guardian or take other protective action which is least restrictive with respect to a client only when the lawyer reasonably believes that the client cannot adequately act in the client’s own interest, whether because of minority, mental disability or for some other reason.
Thus, if a lawyer reasonably believes a normal attorney-client relationship cannot be maintained, then the lawyer may take the least restrictive protective action to advance the client’s interests. Such action may include consulting with family members, mental health professionals or other social service agencies that have the ability to protect the client. See e.g., ABA Model RPC 1.14 [comment 5]. The language of both DR 7-101(C) and ABA Model RPC 1.14(b) makes clear that seeking guardianship5 should only be done as a last resort. See also, Tremblay, On Persuasion and Paternalism: Lawyer Decisionmaking and the Questionably Competent Client, 1987 Utah L. Rev. 515, 566-567 (1987) (guardianship should be pursued only when 'serious harm is imminent, intervention is necessary, no other ameliorative development is foreseeable, and nonlawyers would be justified in seeking guardianship.') Particular care should be taken when requesting appointment of a guardian ad litem in a juvenile dependency case or termination of parental rights case because of the significant liberty interest at stake. OSB Formal Opinion No. 2000-159.6
When considering whether and what type of protective action to take, the lawyer must bear in mind the continuing duty to maintain client confidences and secrets pursuant to DR 4-101. A lawyer may reveal confidences or secrets 'which the lawyer reasonably believes need to be revealed to effectively represent the client.' DR 4-101(C)(2). Similarly, ABA Model RPC 1.14(c) provides that a lawyer may reveal confidences 'only to the extent reasonably necessary to protect the client’s interests.' Whether and to what extent client confidences or secrets may be revealed in order to take protective action must be examined on a case by case basis with an eye on whether the person or entity to whom disclosure is being made will act adversely to the client. Not all ethics opinions which address this issue are in agreement about the disclosure of client confidences or secrets when seeking appointment of a fiduciary for the client. Cf. Illinois Ethics Opinion 89-12 (1990)(under former Code of Professional Responsibility, it is improper for attorney to suggest that client may need guardian if attorney bases the suggestion on confidential information), and ABA Informal Op. No. 89-1530 (1989)(attorney may disclose to the court information necessary to show client’s need for guardian).
In considering protective action, the lawyer must also guard against conflicts of interest. For example, if dealing with unrepresented family members, the lawyer must be clear about who the client is or run the risk of creating the expectation that he is counsel for the family member. In re Weidner, 310 Or. 757, 801 P2d 828 (1990). While the lawyer may act as the petitioner for appointment of a fiduciary for the client, the lawyer may not represent a third party petitioning for guardianship over the lawyer’s client. In re Snell, 15 DB Rptr 166 (2001)(attorney representation of third party to file Petition for Appointment of Conservator/Guardian for a former client in estate planning matters resulted in actual or likely conflict of interest in violation of DR 5-105(C)); See also, ABA Formal Op. No. 96-404, 415 (1996). Furthermore, the lawyer should not seek to have himself appointed guardian except in the most extreme circumstances. Id.
Once a fiduciary has been appointed, the lawyer must take direction from the fiduciary unless she is acting improperly or contrary to the client’s best interests. See e.g., Brode v. Brode, 298 SE2d 443 (SC SupCt 1982)(improper for lawyer to appeal from decision authorizing sterilization of disabled minor where guardian ad litem did not choose to appeal). However, the appointment of a fiduciary does not absolve the attorney of the duty to act on behalf of the client’s interests. Thus, the attorney should monitor the fiduciary to ensure he is asserting the client’s interests and periodically question the client’s continued incompetence and need for the fiduciary. OSB Formal Op.No. 2000-159. See also, Stevens at 34.
CAN’T I JUST WITHDRAW?
Withdrawal is generally disfavored because it leaves the client without assistance when assistance may be most needed. Nevertheless, withdrawal may be required under the principals of agency law if the client’s disability is so extreme that it operates to revoke the attorney’s authorization to act as the client’s agent. ABA Formal Op.No. 96-404, 410 (1996), citing, Restatement (Second) of Agency Section 122 (1958). If withdrawing, the attorney must ensure that client confidences are protected and that the withdrawal complies with the requirements found in DR 2-110(A).
CONCLUSION
A lawyer should always treat the impaired client with respect and seek to advance the client’s lawful legal objectives. The lawyer may consult with others in an effort to maintain a normal attorney-client relationship, being cognizant of the duties of confidentiality and loyalty to the client. If a client is unable to advance his own interests, a lawyer may take protective action, including seeking appointment of a fiduciary. The appropriate protective action will vary depending on the circumstances, but should always be the least restrictive on the client and his autonomy.
Helen Hierschbiel is assistant general counsel in the OSB Client Assistance Office. She can be reached at (503) 620-0222, or toll-free in Oregon at (800) 452-8260, ext. 361, or by e-mail at hhierschbiel@osbar.org.
Endnotes
1. Communication problems with attorneys were the basis of nearly 200 inquiries received from the public by the Client Assistance Office in 2003. OSB CAO 2003 Annual Report to the Oregon Supreme Court. Representing an impaired client promises even greater communication challenges for the attorney.
2. Representing children in juvenile delinquency, dependency, adoption, dissolution and custody matters presents similar, albeit somewhat distinct, ethical issues. For further guidance in the ethical representation of children in these cases, see, Oregon State Bar Indigent Defense Task Force II Report, Principles and Standards for Counsel in Criminal, Delinquency, Dependency and Civil Commitment Cases (1996), and ABA Standards of Practice for Lawyers Who Represent Children in Abuse and Neglect Cases (1996).
3. Whether a person has the capacity to perform a particular act is examined as of the time of the act. Even if several signs point to mental incapacity, it is possible for a person to have 'lucid intervals' during which he or she has requisite capacity to enter into a contract or make a testamentary disposition of property. Uribe v. Olson, 42 Or App 647, 651, 601 P.2d 818 (1979); Gentry v. Briggs, 32 Or App 45, 49, 573 P2d 322, rev den’d 282 Or 189 (1978).
4. The OSB Indigent Task Force II Report, Standard 4.2, says, '[i]t is the unusual circumstance where the client [in civil commitment proceedings] cannot express the ultimate goal, i.e. ‘I want out of this hospital, jail, custody situation.’'
5. Neither the ABA Model Rules of Professional Conduct nor the Oregon Code of Professional Responsibility makes the distinction between guardian, guardian ad litem, and conservator. Most cases which discuss this issue use the term 'guardian' interchangeably to mean any one of these fiduciary roles. Under Oregon law, these are distinct fiduciary roles. See, ORS 125.315, ORS 125.400-125.460 and ORCP 27. Nevertheless, appointment of any one of these fiduciaries is a serious deprivation of individual autonomy and therefore raises similar ethical concerns.
6. The opinion notes that when a GAL is appointed in dependency or termination cases, '[n]ot only is the parent effectively deprived of counsel and the authority to make case decisions, but also a finding by the court that a GAL is required arguably establishes a parent’s unfitness.' OSB Formal Op.No. 2000-159.
© 2004 Helen Hierschbiel
ABOUT THE AUTHOR
Helen Hierschbiel is assistant general counsel in the OSB Client Assistance Office. She can be reached at (503) 620-0222, or toll-free in Oregon at (800) 452-8260, ext. 361, or by e-mail at hhierschbiel@osbar.org.
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