Representing a Client With Diminished Capacity
A recent Ethics Opinion from the Colorado BAR Association analysis the ethical issues and delicate balance between protecting a client and maintaining a normal lawyer-client relationship when an attorney is representing an adult client with diminished capacity when the representation is not in protective proceedings, such as guardianship and conservatorship. Provided below is the syllabus from the opinion:
There are times when a lawyer may need to consider whether the adult client’s capacity to make adequately considered decisions relating to the representation is diminished. Should the lawyer reasonably conclude that the client’s capacity is diminished in such a manner as to impair the client’s ability to make adequately considered decisions regarding the representation or to give informed consent to a course of conduct by the lawyer when required, the lawyer must maintain a normal lawyer-client relationship with the client insofar as reasonably possible. If the lawyer reasonably believes that the client’s diminished capacity places the client at risk of substantial physical, financial or other harm unless action is taken, and that the client cannot adequately act in the client’s own interests, the lawyer should consider whether to take reasonable protective action necessary to protect the client’s interests. In taking such protective action the lawyer should be guided by the wishes and values of the client and the client’s best interests, and any protective actions taken should intrude into the client’s decision making authority to the least extent feasible. In taking protective action the lawyer is impliedly authorized to disclose information relating to the representation which Colo.RPC Rule 1.6 would otherwise prohibit, but only to the extent reasonably necessary to protect the client’s interests. Care should be taken to insure that information disclosed cannot be used against the interests of the client. Differences may arise between the lawyer and client regarding whether or to what extent the client’s capacity is diminished; whether the lawyer should reveal information regarding the client’s condition, or whether the lawyer should take any actions to protect the client. These differences may present conflicts between the interests of the client and those of the lawyer and the lawyer must assess whether representation of the client will be materially limited as a result.
Special thanks to Michael Kirtland (Attorney, Colorado Springs, CO) for bringing this opinion to my attention.