The State Bar of California Standing Committee on Professional Responsibility (COPRAC) recently published Formal Opinion 2021-207, addressing the ethical obligations of a lawyer who has a client with diminished decision-making capacity. Representing clients with diminished capacity involves unique challenges, including difficult decisions that have a long-lasting effect on both client and lawyer.
Most states have adopted some version of ABA Model Rule 1.14, which addresses this issue. California did not. COPRAC issued this opinion to provide additional guidance for California lawyers. For other considerations and guidance, see the following: COPRAC Formal Opinion 1999-2; Bar Association of San Francisco Ethics Opinion 1999-1; and San Diego Bar Association Ethics Opinion 1978-1. Out of state ethics opinion include: Oregon Formal Opinion No. 2005-41; Florida Bar Ethics Opinion 85-4; ABA Formal Opinion 96-04; and New Hampshire Bar Association Ethics Opinion #2014-15/05. The ABA also publishes a helpful handbook on assessing capacity. See https://www.americanbar.org/products/inv/book/411701219/.
COPRAC’s opinion is limited to addressing the representations of adults with diminished capacity in civil litigation, transactional, and estate planning matters, and provides four factual scenarios to illustrate its guidance. In short, lawyers are advised to maintain, as much as possible, a normal attorney-client relationship with the client, in which the client makes the decisions reserved by rule or other law to the client. While a lawyer’s ethical obligations (competence, communication, loyalty, etc.) remain unchanged, the means of fulfilling those duties may require different or supplemental actions by the lawyer.
For example, the duty of competence may require the lawyer to “inquire into or make judgements concerning the client’s capacity,” and if the lawyer feels he or she is not qualified to do so, consultation with a lawyer with more experience in capacity assessments is prudent. These type of judgment calls, both from a legal and factual perspective, are inherently difficult. Thus, the opinion recognizes a safe harbor for judgments that are “informed and disinterested,” even when hindsight proves that the judgments were mistaken. The opinion also discusses situations in which a lawyer may seek the client’s informed consent to take protective measures against harm potentially caused by the client’s diminished capacity. In other words, if future incapacity of the client is reasonably foreseeable, the lawyer should consider obtaining advance consent to disclosures intended to prevent harm.
Questionable decisions by the client are not necessarily an indication of lack of capacity. Whether a client lacks capacity is situational, and depends on the substantive law involved and the particular decision to be made. For example, a client with diminished capacity may be able to make decisions about a simple will but not a complex trust instrument. The opinion also describes measures that a lawyer may need to employ in order to “enhance or protect the client’s capacity to decide.” This may include modifying “how lawyer-client communications are conducted by adjusting the interview environment, communicating more slowly or in writing, spending extra time or having multiple sessions, or communicating with the client at times when the client is less fatigued, more lucid or more receptive.” With client consent, the lawyer may also involve family members, friends or mental health professionals.
In sum, no client can be required to follow a lawyer’s direction or advice. To the extent possible, lawyers should maintain a normal client relationship with diminished-capacity clients. Client capacity must be determined based on state substantive law. When entering into client relationships that might give rise to capacity questions, lawyers should consider planning for potential future incapacity by immediately addressing the issue with the client.