November is Alzheimer’s Awareness Month, a time when we increase awareness of Alzheimer’s disease and the more than 6.2 million Americans living with it. And as our population ages, the chances that a lawyer may interact with a client with cognitive decline may increase too.
The Alzheimer’s Association predicts that 12.7 million Americans 65 and older (almost 1 in 6) will have Alzheimer’s by 2050.
Someone showing signs of diminished capacity may be experiencing acute symptoms, while others may be encountering a chronic and eventually debilitating condition impacting one’s mental and physical functioning.
Few lawyers are medical professionals, qualified to make a diagnosis, let alone properly spot the signs of true cognitive decline. Nevertheless, the Illinois Rules of Professional Conduct (IRPC) demand that lawyers keep client confidence (IRPC 1.6) while maintaining a normal client-lawyer relationship (IRPC 1.14(a)).
Fortunately, the IRPC provide lawyers with guidance on how to properly maintain the attorney-client relationship under these circumstances while staying within the boundaries of our ethical obligations. Some questions that often arise include:
- How might a lawyer properly assess their client’s apparent diminished capacity?
- What impacts can a client’s cognitive decline have on the lawyer-client relationship and how legal services are delivered?
- Are there protective measures that a lawyer should or must take while meeting their ethical obligations?
Should lawyers access cognitive decline?
As IRPC 1.14(a) directs, a lawyer “shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client” when a client’s capacity is diminished.
It’s one thing if a client discloses their condition to the lawyer, but what if the lawyer notices the change themselves, as is often the case?
Part (b) of IRPC 1.14 invokes the reasonableness standard: “When the lawyer reasonably believes that the client has diminished capacity, is at risk of substantial physical, financial or other harm unless action is taken and cannot adequately act in the client’s own interest, the lawyer may take 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.”
This triggers the circular logic definition of reasonableness under IRPC 1.0(i), “ ‘Reasonable belief’ or ‘reasonably believes’ when used in reference to a lawyer denotes that the lawyer believes the matter in question and that the circumstances are such that the belief is reasonable.” But this offers no help when it comes to what behaviors to look for in your client.
Fortunately, when you dig deeper into the comments of IRPC 1.14, you find Comment 6, which provides some guiding factors to “consider and balance” in identifying and evaluating such circumstances. These include:
- The client’s ability to articulate reasoning leading to a decision, variability of state of mind, and ability to appreciate consequences of a decision.
- The substantive fairness of a decision.
- The consistency of a decision with the known long-term commitments and values of the client.
Clients, however, may make foolish or impulsive demands or decisions aside from any diminished capacity. Poor judgment on the part of the client alone shouldn’t trigger the protective action sought by IRPC 1.14.
In fact, ABA Formal Ethics Opinion 96-404 states:
“A client who is making decisions that the lawyer considers to be ill-considered is not necessarily unable to act in his own interest, and the lawyer should not seek protective action merely to protect the client from what the lawyer believes are errors in judgment. [Model] Rule 2.1 permits the lawyer to offer his candid assessment of the client’s conduct and its possible consequences, and to suggest alternative courses, but he must always defer to the client’s decisions. Substituting the lawyer’s own judgment for what is in the client’s best interest robs the client of autonomy and is inconsistent with the principles of the ‘normal’ relationship.”
Comment 6 also permits lawyers to seek guidance from an “appropriate diagnostician” under “appropriate circumstances.” The ability to seek the opinion of a professional in evaluating diminished capacity could offer an important perspective in understanding the abilities of your client, especially in situations where the onset of symptoms has been slow and likely not so apparent to the lawyer.
In certain cases, such as the execution of estate planning documents when a client’s mental capacity is in question or challenged, it may be wise to recommend that the client obtain a doctor’s written opinion about their mental abilities at that time.
Remember, while your client’s confidentiality of information is protected under IRPC 1.6, you do have the flexibility to reveal such information to the extent necessary to protect that client under IRPC 1.14(c). Likewise, any advice the lawyer receives from the professional diagnostician is protected by IRPC 1.6.
Impact on the client relationship
As mentioned above, IRPC 1.14 allows a client with diminished capacity to make decisions and manage their affairs as any other client would when reasonably possible. The totality of each client’s circumstances will determine the extent and degree of their ability to participate should capacity be a legitimate concern.
As IRPC 1.14, Comment 1 states, in part:
“[A] client with diminished capacity often has the ability to understand, deliberate upon, and reach conclusions about matters affecting the client’s own well-being. For example, children as young as five or six years of age, and certainly those of ten or twelve, are regarded as having opinions that are entitled to weight in legal proceedings concerning their custody. So also, it is recognized that some persons of advanced age can be quite capable of handling routine financial matters while needing special legal protection concerning major transactions.”
Communication remains the linchpin in the attorney-client relationship, diminished capacity or not. IRPC 1.4 is built on keeping the client informed so they can make decisions about the objectives of their representation and the means of achieving those objectives.
Just as you’re forced to reconcile confidentiality of information with maintaining a normal relationship (IPRC 1.6 and 1.14), attorneys must do their best to give clients “sufficient information to participate intelligently in decisions concerning the objectives of the representation and the means by which they are to be pursued, to the extent the client is willing and able to do so” (IRPC 1.4, Comment 5).
Attorneys must provide sufficient information to their clients while attempting to reasonably evaluate the client’s comprehension of the information. When there is a cognitive concern at play, this cyclical process of inform-and-assess by lawyers carries even greater importance as part of delivering legal services.
Taking protective measures
IRPC 1.14 may seem harsh in tethering a lawyer to a matter when a client’s competency cannot allow for diligent representation. Yet, while allowing a lawyer to withdraw may remedy the lawyer’s dilemma, it would leave the impaired client without help at a time when they likely need it most.
A lawyer can abandon representation only when they’re unable to establish or maintain a lawyer-client relationship imposed by IRPC 1.14. In this event, the lawyer must seek permission from the court to withdraw, if applicable, or take further protective actions allowed under IRPC 1.14(b) outside the bounds of a normal lawyer-client relationship.
The lawyer is permitted, even against the client’s wishes and direction, to take action to appoint a guardian ad litem, conservator, or guardian. Comments 5-7 guide what constitutes appropriate “protective action” and to what extent.
Comment 7 states:
“If a legal representative has not been appointed, the lawyer should consider whether appointment of a guardian ad litem, conservator or guardian is necessary to protect the client’s interests. Thus, if a client with diminished capacity has substantial property that should be sold for the client’s benefit, effective completion of the transaction may require appointment of a legal representative. In addition, rules of procedure in litigation sometimes provide that minors or persons with diminished capacity must be represented by a guardian or next friend if they do not have a general guardian. In many circumstances, however, appointment of a legal representative may be more expensive or traumatic for the client than circumstances in fact require. Evaluation of such circumstances is a matter entrusted to the professional judgment of the lawyer. In considering alternatives, however, the lawyer should be aware of any law that requires the lawyer to advocate the least restrictive action on behalf of the client.”
Before taking protective actions, the lawyer should inform the client of their concerns about the client’s capacity. While the lawyer is permitted to act independently of the client’s direction concerning taking protective actions, the lawyer must continue to follow their other ethical obligations including communications (IRPC 1.4) and candid advice (IRPC 2.1).
For example, considerations surrounding the onset of dementia may have implications beyond legal matters, such as moral, economic, social, and political factors, which may be relevant to the client’s situation.
Lastly, as you navigate the additional demands of serving a client with diminished capacity, don’t lose sight of keeping your client’s interests first and consider the interests of others only insofar as they matter to the client.
While it may seem appropriate or even comforting to involve other parties, especially family members, in the client’s deliberative process, lawyers must consider the impact of outside involvement. This involvement could lead to undue influence or the disclosure of confidential information.
A lawyer’s ethical obligation remains
When a lawyer suspects diminished capacity in a client, the lawyer’s ethical obligations don’t recede. In fact, the client’s diminished capacity may require the lawyer takes additional steps in servicing and representing the client.
The duties of competence, communication, confidentiality, and advice may require additional measures to ensure that the client’s decision-making ability and authority are upheld and prioritized. A lawyer may be faced with making difficult determinations and, when necessary, take protective measures, even when they may go against the client’s wishes.
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“Ethical Issues in Representing Elderly Clients with Diminished Capacity,” ISBA Bar Journal, Vol. 99, No. 11, p.572, November 2011.
ISBA Professional Conduct Advisory Opinion No. 12-10, Withdrawal from Representation; Impaired Client; Confidentiality.
ABA Formal Opinion 96-404, Client Under a Disability.
Colorado Bar Association, Formal Opinion 126: Representing the Adult Client With Diminished Capacity.
New York City Bar, Formal Opinion 2018-1: Protective Action, and Disclosures of Confidential Information, to Benefit a Prospective Client with Diminished Capacity.
“Assessment of Older Adults with Diminished Capacities: A Handbook for Lawyers, 2nd Edition” by the ABA Commission on Law and Aging and the American Psychological Association.