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Presenting a live 90‐minute webinar with interactive Q&A
Representing Clients with Diminished Representing Clients with Diminished Capacity in Civil MattersAssessing the Client, Taking Protective Action and Meeting the Ethical Challenges
T d ’ f l f
1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific
TUESDAY, 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, Project Attorney, SeniorLAW Center, Philadelphia
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Katherine G Weiss SeniorLAWCenter
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Katherine G. Weiss, SeniorLAWCenter
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 fcapacity category, but few answers ever emerge.” – Peter Margulies
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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 fconditions 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
hconnection with a representation is diminished, whether because of minority,
l f hmental impairment or for some other reason, the lawyer shall, as far as reasonably possible,
l l l l hmaintain 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 yreasonably 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 guardianguardian ad litem, conservator or guardian.
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f (c) Information relating to the representation of a client with diminished capacity is
d b l h kprotected by Rule 1.6. When taking protective action pursuant to paragraph (b), h l l dl h d d lthe lawyer is impliedly authorized under Rule 1.6(a) to reveal information about the client, b l h blbut only to the extent reasonably necessary to protect the client's interests.
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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 determinationdetermination
Title of rule changed from “Client Under a gDisability” to “Client with Diminished Capacity”
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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 finvolve 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 dto disclose confidences
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La ers’ ethical g idelines for assessing Lawyers’ ethical guidelines for assessing client capacity
Approaches to capacity under state guardianship or conservatorship lawsguardianship or conservatorship laws
Legal standards of capacity for specific tasks Legal standards of capacity for specific tasks or 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
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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 clienty
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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 yrequirements 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] or(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]
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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 hrelation to each other21
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 questionq 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 grantedNature of powers granted▪ Express choice of agent
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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 qmake a gift may be held to be greater than that required for testamentary purposes because a gift operates in the presentgift 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 one’s bountyy
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f f Ability to understand the significant benefits and risks of the proposed and any alternative
d l d h b l kmedical treatments and the ability to make and communicate a consistent health care ddecision
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Cli ’ h bi l id d d d Client’s own habitual or considered standards of behavior and valuesI 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 lcommunication 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 yamplification
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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)
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Emotional signs Emotional distress Emotional lability
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Behavior signs Delusions Hallucinations Poor grooming or hygiene Poor grooming or hygiene Indications of undue influence
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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 iinsofar as it is necessary to carry out the representation
Consent requiredIf 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 consentconsent
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E i i b d i i Expert testimony in a subsequent deposition or courtroom hearing
Clarification of the areas of diminished Clarification of the areas of diminished capacity and of retained strengths
Affirmation of the client’s capacityAffirmation of the client s capacity Justification of the attorney’s capacity concerns to disbelieving clients and family g ymembers
Expert advice on strategies to compensate f d f d l d ffor identified mental deficits
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Rule 1.14(b) – “When the lawyer reasonably believes that the client has diminished
k f b l h lcapacity, is at risk of substantial physical, financial or other harm unless action is taken
d d l h land cannot adequately act in the client’s own interest, the lawyer may take reasonably
i inecessary protective action…”
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“. . . including consulting with individuals or entities that have the ability to take action to
h l dprotect the client and, in appropriate cases, seeking the appointment of a guardian ad l dlitem, conservator or guardian.”
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f Rule 1.14 (c) – “Information relating to the representation of a client with diminished
d b l hcapacity is protected by Rule 1.6. When taking protective action pursuant to
h b h l l dlparagraph (b), the lawyer is impliedly authorized under Rule 1.6 (a) to reveal f b h l b l hinformation about the client, but only to the
extent necessary to protect client’s interests.”
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f Taking Protective Action: if lawyer hasreasonable belief that client is at risk of b l h d h lsubstantial harm and that normal
attorney/client relationship cannot be d l kmaintained, lawyer can take protective
measures deemed necessary
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f 1. Consulting with family members 2. Using a reconsideration period before
l dimplementing decisions 3. Voluntary surrogate decision‐making tools
h d bl fsuch as durable powers of attorney 4. Consulting with support groups,
f l d lprofessional services, adult protective service agencies or others to protect client
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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
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f f The substantive fairness of a decision The consistency of a decision with the known long‐term commitments and values of the client
When appropriate lawyer may seek When appropriate, lawyer may seek guidance from an appropriate diagnostician
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Lawyer should consider whether appointment of a guardian ad litem,
dconservator 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 lof client
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f In an emergency where health, safety or financial interests of a person with seriously d h d h d hdiminished capacity is threatened with imminent and irreparable harm:
lawyer may take legal action even if person bl bl h lunable to establish attorney/client
relationship or make or express considered d b hjudgments about the matter
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Even in such case, lawyer should not act unless lawyer reasonably believes the person h h lhas 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 blotherwise avoid imminent and irreparable
harm
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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 hthe extent necessary to accomplish the intended protective action
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Although taking protective action is couched in permissive language – in some situations h l d kethical mandates require taking protective
actionl 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
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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 nots/he otherwise could not Provides for legal representation of most vulnerable older adultsvulnerable 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
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“When a client's capacity to make adequately considered decisions in connection with a
d h d h hrepresentation is diminished, whether because of minority, mental impairment or f h h l h ll ffor some other reason, the lawyer shall, as far as reasonably possible, maintain a normal l l l h h h lclient‐lawyer relationship with the client.”
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Communication
f d l Confidentiality
l Loyalty
fl f Conflicts of interest
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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 of client, particularly in maintaining of client, particularly in maintaining communication
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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 representationauthorized in order to carry out the representationor the disclosure is permitted by paragraph (b).
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Three situations where issues of Three situations where issues of confidentiality may arise in representation of client with diminished capacityclient with diminished capacity Confidential communications may provide evidence of need for guardianshipevidence 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 gformer client’s personal or financial affairs
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MRPC 1.14 Comment [3] “The client may wish to have family members or other 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 hRule 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 pbut 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 ordinarily look to the representative for decisions on behalf of the client If the lawyer represents on 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.”
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f (b) Notwithstanding the existence of a concurrent conflict of interest under
h l lparagraph (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 yduties 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 dJustice Brandeis was asked who he had represented in a particularly convoluted
l d d hcommercial 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 lsituation” or “the family”61
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?
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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
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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 ordinary client‐lawyer relationship may not be possible in all respects.”
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Client is making a poor decision
bbut
l k k ll Protective action seems like over‐kill
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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
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Coercion implicating the se of force or Coercion, implicating the use of force or threats, is clearly not permissibleManipulation 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?
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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 autonomyg / y
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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 hRegarding 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 phimself, 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 2004Lafitte, 17 Geo. J. Legal Ethics, Winter 2004
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Katherine G. Weiss, Esq. Michele Mathes JDKatherine G. Weiss, Esq.Projects CoordinatorSeniorLAW Center100 South Broad Street
Michele Mathes JDEducation DirectorCARIE100 South Broad Street100 South Broad Street
Suite 1810Philadelphia, PA 19110
100 South Broad StreetSuite 1500Philadelphia, PA 19110
Tel: 215.701,3204Email:[email protected]
Tel: 215.545.5728Email: [email protected]
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