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Representing Clients with Diminished Representing Clients with Diminished Capacity in Civil Matters

Assessing the Client, Taking Protective Action and Meeting the Ethical Challenges

T d ’ f l f

1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific TUES DAY, DECEMBER 14, 2010

Today’s faculty features:

Michele Mathes, Director of Education and Research Programs

Center for Advocacy for the Rights and Interests of the Elderly, Philadelphia Katherine G. Weiss, Proj ect Attorney, SeniorLAW Center, Philadelphia

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Katherine G Weiss SeniorLAW Center

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Katherine G. Weiss, SeniorLAW Center Michele Mathes, CARIE

h bl k h l f l l h “Capacity is the black hole of legal ethics. Many questions find their way into the b f capacity category, but few answers ever emerge.” – Peter Margulies

5

 Capacity is understood to exist along a

continuum – there is no bright line d l l f f l d d

 Model Rules of Professional Conduct do not

provide effective guidance f h h d h d

 Many (if not most) cases in which diminished

capacity is an issue require action in d f conditions of uncertainty

 Implications for client can be profound either

way

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 (a) When a client's capacity to make

adequately considered decisions in h connection with a representation is diminished, whether because of minority, l f h mental impairment or for some other reason, the lawyer shall, as far as reasonably possible, l l l l h maintain a normal client‐lawyer relationship with the client.

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b h h l bl b l h h

 (b) When the lawyer reasonably believes that the

client has diminished capacity, is at risk of substantial physical financial or other harm unless substantial physical, financial or other harm unless action is taken and cannot adequately act in the client's own interest, the lawyer may take , y y 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 guardian ad litem, conservator or guardian.

8

f

 (c) Information relating to the representation

• f a client with diminished capacity is

d b l h k protected by Rule 1.6. When taking protective action pursuant to paragraph (b), h l l dl h d d l the lawyer is impliedly authorized under Rule 1.6(a) to reveal information about the client, b l h bl but only to the extent reasonably necessary to protect the client's interests.

9

 In 2002, the language of Rule 1.14 of the ABA’s

Model Rules of Professional Conduct (MRCP) was changed to reflect an nderstanding of capacit as a changed to reflect an understanding of capacity as a matter of degree rather than a black and white determination determination

 Title of rule changed from “Client Under a

g Disability” to “Client with Diminished Capacity”

10

 Lawyers are not trained to make capacity

assessments, but d k

 Lawyers sometimes need to make capacity

assessments

• To decide if an attorney‐client relationship is possible
• Because a physician or other diagnostician is not

available or time does not allow seeking one out

• Because referral for professional assessment may

l d l f f d l f involve disclosure of confidential information

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 In determining whether an attorney‐client

relationship can be created in the first place bl h h l f

 In establishing the goals of representation  When goals of representation change

d d f l

 In deciding terms of settlement  When considering whether it is appropriate

d l f d to disclose confidences

12

La ers’ ethical g idelines for assessing

 Lawyers’ ethical guidelines for assessing

client capacity

 Approaches to capacity under state

guardianship or conservatorship laws guardianship or conservatorship laws

 Legal standards of capacity for specific tasks  Legal standards of capacity for specific tasks

• r legal transactions

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 Functional assessment

• The effectiveness of client’s decision‐making

process

S b i

 Substantive assessment

• The quality of the client’s decisions

14

f

 Functional components of decision‐making

• Ability to articulate reasoning behind a decision
• Variability of state of mind
• Appreciation of consequences of decisions

 Substantive components of decision‐making

• Irreversibility of decision
• Substantive fairness of decision
• Consistency with lifetime commitments of client

y

15

St t t it i

 Statutory criteria vary  May include, in “mix ‘n’ match” fashion, findings

regarding: regarding:

• Disabling condition
• Functional behavior regarding essential needs
• Functional behavior regarding essential needs
• Cognitive function
• Need for guardianship
• Need for guardianship
• Guardianship is the “least restrictive

alternative” alternative

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U if G di hi d P i

 Uniform Guardianship and Protective

Proceedings Act (1997) includes

“[A] i di id l h i bl t i d

• “[A]n individual who . . . is unable to receive and

evaluate information or make or communicate decisions to such an extent that [Cognitive test] [ g ] +

• The individual lacks the ability to meet essential

y requirements of physical health, safety, or self‐ care, even with appropriate technological assistance [Essential needs test] assistance [Essential needs test]

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 North Dakota  North Dakota

• Any adult person who is impaired by reason of mental illness,

mental deficiency, physical illness or disability or chemical dependency [Disabling condition criterion] dependency . . . [Disabling condition criterion] +

• . . . to the extent that the person lacks capacity to make or

communicate responsible decisions . . . [Cognitive criterion] +

• . . . concerning that person’s matters of residence, education,

medical treatment, legal affairs, vocation, finance, or other matters [Essential needs criterion] matters . . . [Essential needs criterion] +

• . . . or which incapacity endangers the person’s health or safety.

[Endangerment criterion] [Endangerment criterion]

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 Virginia  Virginia

• An adult who has been found by a court to be incapable of

receiving and evaluating information effectively or responding to people events or environments to such an extent to people, events, or environments to such an extent . . . [Cognitive criterion] +

• . . . that the individual lacks the capacity to (1) meet the

essential requirements for his health, care, safety, or therapeutic needs . . . [Essential needs/person criterion] +

• . . .without the assistance or protection of a guardian . . .

[Necessity criterion]

• r

(ii) t fi i l ff i id f hi /h

• (ii) manage property or financial affairs or provide for his/her

support or for the support of his/her legal dependants . . . [Essential needs/property criterion] +

• w/o the assistance or protection of a conservator [Necessity

. . . w/o the assistance or protection of a conservator [Necessity criterion]

19

f

 Contractual (including contracting for legal

services)

 Testamentary  Donative

l l d

 Executory (executing a legal document, e.g.,

Power of Attorney document) l ll h l h d

 Decisional (especially health care decisions)

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f f

 Understand the nature of the act of making a

will l d d f h

 Have a general understanding of the nature

and extent of her/his property l f h

 Have a general recognition of those persons

who are “the natural objects of his bounty” d d h d b h

 Understand the distribution scheme  Appreciate all of the above elements in

l h h relation to each other

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Wh h h i h i

 Whether, at the time the instrument was

executed the grantor possessed sufficient mental capacity to understand the nature of mental capacity to understand the nature of the transaction and to agree to its provisions

 Each case must depend mainly on the facts

Each case must depend mainly on the facts surrounding the execution of the instrument in question q

• E.g., level of cognitive ability/understanding

required may be higher for more complex t t l t contractual arrangement

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 Similar to contractual capacity

• i.e., at time of execution, person must have

sufficient mental capacity to understand the nature of the transaction ▪ Legal significance of document ▪ Nature of powers granted Nature of powers granted ▪ Express choice of agent

23

D f it i d t k ift i l

 Degree of capacity required to make a gift is less

than that required for the conduct of ordinary

• business. However, the capacity required to

, p y q make a gift may be held to be greater than that required for testamentary purposes because a gift operates in the present gift operates in the present

 The requisite capacity to make a gift is an

intelligent perception and understanding of the dispositions made of property and the persons dispositions made of property and the persons and objects one desires to be the recipients of

• ne’s bounty

24

f f

 Ability to understand the significant benefits

and risks of the proposed and any alternative d l d h b l k medical treatments and the ability to make and communicate a consistent health care decision

25

Cli ’ h bi l id d d d

 Client’s own habitual or considered standards

• f behavior and values

I t i li t l

• Interview client alone
• Accommodate sensory changes (impaired

i ht h i ) sight or hearing)

• Accommodate cognitive changes (select

ti f d k l l i t time of day, speak slowly, use appropriate language) P it

• Presume capacity

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 Focus on decisional abilities, not

cooperativeness or affability h

 Pay attention to changes over time

• History is important

 Guard against ageist stereotyping  Consider factors other than mental capacity

that might be influencing behavior

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 Interview the client alone  Adjust the interview environment to enhance

h h l communication with the client

• Speak slowly
• Make sure room is quiet
• Make sure room is well‐lit
• Arrange furniture to avoid glare
• Provide any necessary audio or visual

y y amplification

28

 Cognitive signs

• Short‐term memory problems
• Language/communication problems
• Comprehension problems
• Comprehension problems
• Lack of mental flexibility

l l f l

• Calculation/financial management

problems

• Disorientation (time, place)

29

 Emotional signs

• Emotional distress
• Emotional lability

30

 Behavior signs

• Delusions
• Hallucinations
• Poor grooming or hygiene
• Poor grooming or hygiene
• Indications of undue influence

31

f f f

 If further formal assessment is required

• Use of screening tool
• Referral to diagnostician

▪ Does not violate duty of confidentiality under MRPC 1.6a i f i i h i insofar as it is necessary to carry out the representation

 Consent required

If li t bl t i t id h th

• If client unable to give consent, consider whether

legal surrogate is available

▪ Power of attorney for health care ▪ Power of attorney for health care ▪ State default surrogate law

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C l i

 Consultation

• A lawyer’s conversation with a clinician to discuss

concerns about a client Usually the client is not concerns about a client. Usually the client is not identified; consultation usually does not require client consent

 Referral

• A formal referral to a clinician for evaluation,

hi h l i i which may or may not result in a written report from the clinician to the lawyer; requires client consent consent

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E i i b d i i

 Expert testimony in a subsequent deposition

• r courtroom hearing

 Clarification of the areas of diminished  Clarification of the areas of diminished

capacity and of retained strengths

 Affirmation of the client’s capacity

Affirmation of the client s capacity

 Justification of the attorney’s capacity

concerns to disbelieving clients and family g y members

 Expert advice on strategies to compensate

f d f d l d f for identified mental deficits

34

 Rule 1.14(b) – “When the lawyer reasonably

believes that the client has diminished k f b l h l capacity, is at risk of substantial physical, financial or other harm unless action is taken d d l h l and cannot adequately act in the client’s own interest, the lawyer may take reasonably i i necessary protective action …”

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 “. . . including consulting with individuals or

entities that have the ability to take action to h l d protect the client and, in appropriate cases, seeking the appointment of a guardian ad l d litem, conservator or guardian.”

36

f

 Rule 1.14 (c) – “Information relating to the

representation of a client with diminished d b l h capacity is protected by Rule 1.6. When taking protective action pursuant to h b h l l dl paragraph (b), the lawyer is impliedly authorized under Rule 1.6 (a) to reveal f b h l b l h information about the client, but only to the extent necessary to protect client’s interests.”

37

f

 Taking Protective Action: if lawyer has

reasonable belief that client is at risk of b l h d h l substantial harm and that normal attorney/client relationship cannot be d l k maintained, lawyer can take protective measures deemed necessary

38

f

 1. Consulting with family members  2. Using a reconsideration period before

l d implementing decisions

 3. Voluntary surrogate decision‐making tools

h d bl f such as durable powers of attorney

 4. Consulting with support groups,

f l d l professional services, adult protective service agencies or others to protect client

39

f

 1. Wishes & values of client to extent known  2. Client’s best interests

l d

 3. Least intrusion into client’s decision‐

making autonomy l

 4. Maximizing client capacities  5. Respecting client’s family & social

connections

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f

 Attorney should consider and balance factors

such as:

• client’s ability to articulate reasoning

behind a decision

• variability of state of mind
• ability to appreciate consequences of
• ability to appreciate consequences of

decision

41

f f

• The substantive fairness of a decision
• The consistency of a decision with the

known long‐term commitments and values

• f the client

When appropriate lawyer may seek When appropriate, lawyer may seek guidance from an appropriate diagnostician

42

 Lawyer should consider whether

appointment of a guardian ad litem, d conservator or guardian is necessary to protect the client’s interests

 Many times, too expensive or traumatic to

client to be warranted by circumstances d h h l l

 Consider whether any law requires lawyer to

advocate for least restrictive action on behalf f l

• f client

43

f

 In an emergency where health, safety or

financial interests of a person with seriously d h d h d h diminished capacity is threatened with imminent and irreparable harm: lawyer may take legal action even if person bl bl h l unable to establish attorney/client relationship or make or express considered d b h judgments about the matter

44

 Even in such case, lawyer should not act

unless lawyer reasonably believes the person h h l has no other lawyer, agent or representative h ld b k l h

 Action should be taken only to the extent

necessary to maintain status quo or h d d bl

• therwise avoid imminent and irreparable

harm

45

f f

 Lawyer must maintain the confidences of the

person as if dealing with any client

 Disclosure of information should be only to

h l h h the extent necessary to accomplish the intended protective action

46

 Although taking protective action is couched

in permissive language – in some situations h l d k ethical mandates require taking protective action l d l b

 Failure to protect incapacitated clients can be

a risk to attorney (duty of due diligence) l l f

 Incremental implementation of protective

actions may be considered

47

 Rule 1 14 is “well intended and progressive”  Rule 1.14 is well‐intended and progressive

• Allows a lawyer to provide legal services where

s/he otherwise could not s/he otherwise could not

• Provides for legal representation of most

vulnerable older adults vulnerable older adults

• Recognizes that the lawyer has a special

responsibility when the client cannot exercise the responsibility when the client cannot exercise the normal decision‐making functions of ordinary client

• Establishes “mid‐point” strategy

48

 “When a client's capacity to make adequately

considered decisions in connection with a d h d h h representation is diminished, whether because of minority, mental impairment or f h h l h ll f for some other reason, the lawyer shall, as far as reasonably possible, maintain a normal l l l h h h l client‐lawyer relationship with the client.”

49

 Communication

f d l

 Confidentiality

l

 Loyalty

fl f

 Conflicts of interest

50

 MRPC 1.14 Comment [2]

• The fact that a client suffers a disability does not

diminish the lawyer's obligation to treat the client with attention and respect. Even if the person has a legal representative the lawyer should as far as a legal representative, the lawyer should as far as possible accord the represented person the status

• f client, particularly in maintaining
• f client, particularly in maintaining

communication

51

f f f

 MRPC 1.6 (a) – Confidentiality of Information

• A lawyer shall not reveal information relating to

the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation authorized in order to carry out the representation

• r the disclosure is permitted by paragraph (b).

52

 Three situations where issues of

Three situations where issues of confidentiality may arise in representation of client with diminished capacity client with diminished capacity

• Confidential communications may provide

evidence of need for guardianship evidence of need for guardianship

• Confidentiality may be concern in the concurrent

representation of multiple clients p p

• In a new representation of a related or interested

client in connection with the management of the g former client’s personal or financial affairs

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 MRPC 1.14 Comment [3]

• “The client may wish to have family members or
• ther persons participate in discussions with the
• lawyer. When necessary to assist in the

t ti th f h representation, the presence of such persons generally does not affect the applicability of the attorney‐client evidentiary privilege attorney client evidentiary privilege. . .

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 MRPC 1.14 Comment [8]

• “Disclosure of the client's diminished capacity

could adversely affect the client's interests. For example, raising the question of diminished capacity could in some circumstances lead to capacity could, in some circumstances, lead to proceedings for involuntary commitment. Information relating to the representation is Information relating to the representation is protected by Rule 1.6. Therefore, unless authorized to do so, the lawyer may not disclose such information. . . .”

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 MRPC 1.14 Comment [8]

MRPC 1.14 Comment [8]

• “. . . . When taking protective action pursuant to paragraph

(b) [of MRPC 1.14] the lawyer is impliedly authorized [under l k h d l h Rule 1.6(a)] to make the necessary disclosures, even when the client directs the lawyer to the contrary. Nevertheless, given the risks of disclosure, paragraph (c) [of MRPC 1l14] g , p g p ( ) [ 4] limits what the lawyer may disclose in consulting with other individuals or entities or seeking the appointment of a legal representative At the very least the lawyer should

• representative. At the very least, the lawyer should

determine whether it is likely that the person or entity consulted with will act adversely to the client's interests b f di i l d h li Th l ' before discussing matters related to the client. The lawyer's position in such cases is an unavoidably difficult one.”

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 MRPC 1.14 Comment [3]

• [Notwithstanding the permissibility of including

family members in discussions with the lawyer]. . . . the lawyer must keep the client's interests foremost and except for protective action foremost and, except for protective action authorized under paragraph (b), must to look to the client, and not family members, to make the client, and not family members, to make decisions on the client's behalf.

• Guardianship serves some interests of the client

p but violates others

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 MRPC 1.14 Comment [4]

• “If a legal representative has already been

appointed for the client, the lawyer should

• rdinarily look to the representative for decisions
• n behalf of the client If the lawyer represents
• n behalf of the client . . . If the lawyer represents

the guardian as distinct from the ward, and is aware that the guardian is acting adversely to the aware that the guardian is acting adversely to the ward's interest, the lawyer may have an obligation to prevent or rectify the guardian's misconduct.”

58

f

 (b) Notwithstanding the existence of a

concurrent conflict of interest under h l l paragraph (a), a lawyer may represent a client if:

• (4) each affected client gives informed

consent, confirmed in writing.

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 MRPC 1.7 comment [4]

 If a conflict arises after representation has been undertaken,

the lawyer ordinarily must withdraw from the the lawyer ordinarily must withdraw from the representation, unless the lawyer has obtained the informed consent of the client under the conditions of paragraph (b) Wh h li i i l d h h h

 . . .Where more than one client is involved, whether the

lawyer may continue to represent any of the clients is determined both by the lawyer's ability to comply with y y y p y duties owed to the former client and by the lawyer's ability to represent adequately the remaining client or clients, given the lawyer's duties to the former client the lawyer s duties to the former client.

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 In 1916, while being challenged by a skeptical

Senate on charges of conflict of interest, d k d h h h d Justice Brandeis was asked who he had represented in a particularly convoluted l d d h commercial transaction. He responded that he had been “counsel for the situation”. f l h d l l d

 Unfortunately the Model Rules don’t

recognize the ability to represent “the h f l situation” or “the family”

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Wh i h li ?

 Who is the client?

• Who actually consulted the lawyer? In what stated

capacity? capacity?

• Who made the appointment?
• Who is paying the bills and from what source?
• Who has regular communication with the lawyer?
• Who makes decisions about approaches?
• Who personally benefits?
• How easily can others obtain representation?

 Does client with (suspected) diminished capacity have ability  Does client with (suspected) diminished capacity have ability

to waive a conflict?

62

f

 “Ideal” model of the attorney‐client relationship

• Autonomy is the guiding value
• Lawyer presents options, client chooses
• BUT there are limits to client autonomy

 Paternalism to protect client from bad choices is

not justified

63

 Rule 1.14 Comment [1] recognizes that

• “The normal client‐lawyer relationship is based on

the assumption that the client, when properly advised and assisted, is capable of making decisions about important matters When the decisions about important matters. When the client is a minor or suffers from a diminished mental capacity, however, maintaining the mental capacity, however, maintaining the

• rdinary client‐lawyer relationship may not be

possible in all respects.”

64

 Client is making a poor decision

but l k k ll

 Protective action seems like over‐kill

65

f

 Client is not incapable of managing his/her

affairs or making decisions, but l l f

 On a particular issue, client “refuses” to see

the “real facts”

• Particular “crazy” investment won’t go bad
• A caregiver and her cocaine‐addicted boyfriend

are not running a con game

66

Coercion implicating the se of force or

 Coercion, implicating the use of force or

threats, is clearly not permissible Manipulation vs persuasion

 Manipulation vs. persuasion

• Both have goal of changing the client’s mind

b h bl

• Are both acceptable?
• If not, what is the point beyond which persuasion

b i l ti ? becomes manipulation?

67

 Manipulation has negative impact on both

the lawyer and the client

• To the extent that manipulation includes

use of lying, distorting, or withholding information it harms the attorney’s integrity

• Impact on client is disrespect, control, and

infringement of her/his autonomy g / y

68

f

 Deliberate ordering and emphasis of options?

• Emphasis as a counterweight to refusal to hear “the

true facts”

• Emphasizing risks

dl h b f f

 Repeatedly presenting the “benefits” of

preferred choice? N i li ’ f f

 Not accepting client’s statements of preferences

at face value?

• Not taking “no” for an answer

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d h Regarding MRPC 1.14, the consensus among commentators is that the rule is “a work in progress” but that “it remains one of the most well intended of but that it remains one of the most well‐intended of the rules. It is a rule of protection for those who most need it – whether that protection is from the client p himself, third parties, or the over‐eager lawyer. Hopefully, when placed in a difficult and complex situation, the attorney will strive to meet the spirit and goodness behind Model Rule 1.14.” – Elizabeth Lafitte 17 Geo J Legal Ethics Winter 2004 Lafitte, 17 Geo. J. Legal Ethics, Winter 2004

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Katherine G. Weiss, Esq. Michele Mathes JD Katherine G. Weiss, Esq. Projects Coordinator SeniorLAW Center 100 South Broad Street Michele Mathes JD Education Director CARIE 100 South Broad Street 100 South Broad Street Suite 1810 Philadelphia, PA 19110 100 South Broad Street Suite 1500 Philadelphia, PA 19110 Tel: 215.701,3204 Email: KWeiss@SeniorLAWCenter.org Tel: 215.545.5728 Email: mathes@carie.org KWeiss@SeniorLAWCenter.org .

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