PRACTICAL ETHICS:

Maintaining a “Normal Relationship” with Clients with Diminished Capacity

By Professor Roberta K. Flowers

10 practical tips for ethically dealing with clients with diminished capacity.

It is the epitome of life.

The first half of life consists of the capacity to enjoy without the chance.

The last half consists of the chance without the capacity.

– Mark Twain

Rule 1.14 of the1 ABA Model Rules of Professional Conduct2 requires an attorney when representing a client whose capacity to “make adequately considered decisions in connection with a representation is diminished…, [to] maintain as far as reasonably possible, a normal client-lawyer relationship with the client.”3 The Rule goes on to recognize that an attorney’s position in dealing with clients with diminished capacity is an “unavoidable difficult one.”4 So, how does an attorney maintain a “normal relationship” when dealing with a client with diminished capacity?

The attorney needs to recognize what a “normal” relationship entails. The client/attorney relationship requires the attorney to fully communicate with the client, protect the client’s confidence, and allow the client to make the core decisions of the representation, sometimes called the objectives of representation.

The duty of communication requires an attorney to “explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.”5 The Rule recognizes that communication must be adjusted to the comprehension and needs of the client, even “delaying transmission of information” if the delay is not “to serve the lawyer’s own interest or convenience or the interests or convenience of another person.”6

Confidentiality is a core value of the client/attorney relationship. All information relating to the representation is confidential,7 including any observations made by the attorney about the client’s capacity. Confidentiality is no less vital when the client has diminished capacity. In the absence of the need for protective action, an attorney must maintain the client’s confidences even from concerned family members unless the client has consented to the disclosure.

One author suggests that an “effective way to determine the client’s objective and legal problem is through a three-staged interview. The three stages are ‘Preliminary Problem Identification,’ ‘Chronological Overview,’ and ‘Theory Development and Verification.’”8

The lawyer should explain to the client that the interview will be conducted in a three-stage manner and explain to the client why the lawyer is proceeding in that manner. During the Preliminary Problem Identification stage, the lawyer asks the client open-ended questions to allow the client to relay the legal problem and the relief he or she seeks in a way that is most comfortable for the client. In the Chronological Overview stage, the lawyer asks the client to relay the legal problem in a systematic successive manner which begins when the legal problem was created to the present. After the Chronological Overview stage, and the lawyer moves to the Theory Development and Verification stage, the lawyer determines the possible causes of action available or defenses available.9

Ed Boyer,10 a NAELA Past President, suggests the following practical tips for ethically dealing with clients with diminished capacity.

1. Capacity is like a lava lamp; it can ebb and flow so you have to go with the flow.11 An attorney must be willing to meet the client where and when he is at his most lucid.
2. Remember that sometimes our client’s diminished capacity might be more of a reflection of our incompetency in adjusting to the emotional, physical, and physiological needs of the client. We have an ethical obligation to presume and enhance a client’s capacity.
3. Look around your office; are there distractions that might impact the client’s capacity. For example, is there outside noise or glare that make it difficult for the client to hear or see?
4. Representing clients with diminished capacity requires more time to explain matters fully. A series of shorter, more focused meetings may be necessary.
5. Plan ahead for incapacity by asking permission and receiving consent to speak to others if the client’s capacity comes into question.
6. Intently listen to the client and follow up before jumping to conclusions. The attorney must assume capacity, so if the client says something that seems to indicate incapacity, follow up with questions to clarify what the client meant. Do not jump to the conclusion that what they are saying is inappropriate or evidencing the client has become incapacitated.
7. Watch for indications from one meeting to the next that the client is declining. The attorney should always be observant of declining hygiene or physical deterioration.
8. The attorney should attempt to meet in private with the client, however, if the client wishes to have other people accompany the client,12 the attorney must talk directly to the client and not be distracted by the other people. Although it is sometimes a challenge, the attorney must insist that it is the client who speaks and not someone else speaking for the client.
9. The attorney should sit facing the client so that the client may be able to obtain visual clues as well the words themselves.
10. Respect and dignity — that is the key.