The Challenge of Dealing with a Client with Diminished Capacity: CA OP 2021-207
There is not much guidance beyond the legal ethics rules for attorneys who represent a client that may have diminished capacity. The State Bar of California’s Committee on Professional Responsibility & Conduct (COPRAC) has provided some specific guidance in its recently issued Formal Opinion CAL 2021-207: Client with Diminished Capacity, regarding an attorney’s ethical obligations for a client who suffers from diminished capacity, specifically in “civil litigation, transactional, and estate planning matters[.]”
While not defined in California’s Rules of Professional Conduct, a client’s diminished capacity may involve instances in which the client is wholly unable to make or communicate any relevant decision or only a particular decision. Alternatively, the client may only have the capacity to make certain decisions with assistance or accommodation.
In addition to decisions regarding the formation and termination of an attorney-client relationship, the law of capacity “governs decisions occurring within that relationship in the many situations where a particular action requires the client’s informed consent.”
As such, an attorney who represent a client who has or may have diminished capacity “must be alert to the risk of concluding too readily that the client is not capable of making decisions about the representation, without due attention to the legal presumption of capacity, without assessing capacity on a decision by decision basis, and without taking any measures to enhance the client’s ability to make and communicate an effective decision.” The lawyer must simultaneously be aware that the client still may not be able to make a legally effective decision, or make a decision adverse to the client’s best interest, even with assistance.
The Opinion cites two principals of particular importance regarding the representation of clients with diminished capacity. First, to the extent possible, the lawyer must “‘maintain a normal client-lawyer relationship with the client[.]’” “This principle will often require the lawyer to propose or adopt practices and procedures designed to enhance or protect the client’s capacity to decide” those decisions which are normally decided by the client.
Second is the recognition that “representing a client with diminished capacity may require a lawyer to make difficult decisions relating to capacity in situations of factual and legal uncertainty.” COPRAC makes clear that a lawyer exercising informed professional judgment toward a client with diminished capacity “should not be viewed as having acted unethically simply because in hindsight the judgment is later determined to have been mistaken[,]” a holding that is consistent with the American Bar Association’s Formal Opinion 491.
COPRAC cites to the duties of competence, communication, loyalty, nondiscrimination, and confidenatiality as particularly pertinent to the representation of clients with diminished capacity. Regarding a lawyer’s duty of competence when a client shows signs of diminished capacity, the lawyer may be required to make judgments concerning the client’s capacity or consult with a more qualified lawyer to make that determination.
Further, “the lawyer may consider, with the client’s consent where required, consulting medical, psychological, or other professionals with an understanding of the cognitive and emotional issues involved in determining the client’s capacity and how the attorney-client relationship should be adjusted to reflect them.” Further, the attorney may need to implement special measures to support the client’s capacity to make legally effective decisions.
Where a client’s diminished capacity affects how an attorney complies with the duty to communicate with the client under California Rule of Professional Responsibility 1.4, the lawyer may want to consider or implement similar special measures to support attorney-client communications.
Regarding a lawyer’s duty of loyalty to their client who has or may have diminished capacity, “[i]n determining and acting in the client’s interest, the lawyer’s obligation to exercise independent judgment requires attention to the client’s expressed wishes, if known or reasonably knowable.”
Further, it requires “putting aside any conventional prejudices associated with the client’s condition[,]” and that the lawyer “keep in mind the statutory presumption of capacity” and avoid paternalism. The Opinion discusses instances in which third parties have strong interests in the outcome of the client’s decisions, reiterating that lawyers must “‘keep the client’s interests foremost,’ and consider the interests of others only insofar as they matter to the client.”
The Opinion discusses in depth the consequences of a lawyer’s determination that a client with diminished capacity is exposed to harm as a result of that incapacity: “absent a final determination of incapacity, a lawyer’s reasonably belief that a client is incapacitated should not by itself terminate the lawyer’s authority to take protective action in the client’s best interest if such action is within the scope of the representation.”
Importantly, “[e]ven when a lawyer for a client with diminished capacity continues to have authority to act, the duties of confidentiality and loyalty will sometimes limit the steps that a lawyer may take to respond to a client’s diminished capacity.” As such, where an attorney feels it necessary to disclose the client’s confidential information regarding their diminished capacity for the purpose of obtaining protective measures for the client, the attorney must obtain the client’s informed consent to do so. The attorney further must make an assessment of their client’s capacity to provide informed consent to those protective measures.
Finally, COBRAC discusses the ethical propriety of a lawyer obtaining advance consents to disclose confidential information on specified conditions “if such disclosure is necessary to protect [the client] from substantial harm[.]” For earlier coverage on this issue in New York, click here.
The Opinion holds that such advance consent may be ethically proper so long as the lawyer discloses the relevant circumstances and material risks of such a consent, “including any actual and reasonably foreseeable adverse consequences of the proposed course of conduct[,]” Further, “the consent must be revocable at any time, so long as the client has the legal capacity to revoke, and the right to revoke should be highlighted in the informed consent.”
