The Rules of Professional Conduct

Daniel W. Kunz, Esq.

ABA: A LAWYER'S RESPONSIBILITIES

• Every lawyer performs various functions: • As an advisor who provides the client with an informed

understanding of their rights

• As an advocate who asserts the client’s position under the rules of the adversary system

• As a negotiator who seeks the result that is advantageous to the client but still consistent with the requirement of dealing honestly with others

• As an evaluator who examines the client’s legal affairs

What Lawyers Should Know about Clients with Mental Disabilities

• Patients may have psychiatric illnesses that deprive them of the capacity to assess reality accurately.

• Even when people have delusions, they may remain legally competent to make decisions not affected by these delusions.

• Patients who are depressed may also make decisions unwisely. Their thinking may be prone to distortions.

Attorney-client Relationships

• In order to enter into an attorney-client relationship, the client must possess the requisite level of capacity to conduct ordinary business transactions and must be able to, on some level, participate in the representation (PA Rule 1.2)

• Once an individual is adjudicated incapacitated, any legal proceedings will be instituted through the guardian and the guardian will have the power to choose legal representation. (Pa. R. C. P. 2053 (2002))

Protective Action v. Emergency

• 2002 Model Rule Amendments: • There is a distinction between taking protective action with

an existing client and providing emergency legal assistance to a person with serious diminished capacity and with whom the lawyer is unable to establish an attorney-client relationship.

• Emergency legal assistance is only authorized where the individual is “threatened with imminent and irreparable harm.”

• However, when a lawyer does provide such assistance, the lawyer is still directed to deal with the individual as if he was his own client despite the fact that the individual exhibits the diminished capacity.

Competence

PA Rule 1.1

• A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.

• “Capacity” is what mental health professionals determine; legal “competency,” what judges decide, usually based on these determinations. (ABA)

Diligence

PA Rule 1.3

• A lawyer shall act with reasonable diligence and promptness in representing a client.

Communication PA Rule 1.4 • (a) A lawyer shall: • (1) promptly inform the client of any decision or circumstance with respect to which the

client’s informed consent, as defined in Rule 1.0(e), is required by these Rules; • (2) reasonably consult with the client about the means by which the client’s objectives

are to be accomplished; • (3) keep the client reasonably informed about the status of the matter; • (4) promptly comply with reasonable requests for information; and • (5) consult with the client about any relevant limitation on the lawyer’s conduct when

the lawyer knows that the client expects assistance not permitted by the Rules of Professional Conduct or other law.

• (b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.

• (c) A lawyer in private practice shall inform a new client in writing if the lawyer does not have professional liability insurance of at least $100,000 per occurrence and $300,000 in the aggregate per year, subject to commercially reasonable deductibles, retention or co-insurance, and shall inform existing clients in writing at any time the lawyer’s professional liability insurance drops below either of those amounts or the lawyer’s professional liability insurance is terminated. A lawyer shall maintain a record of these disclosures for six years after the termination of the representation of a client.

Determining Mental Capacity

Requirements

• In addition to the general requirement that the lawyer reasonably believes that the client is unable to “adequately act in the client's own interest” (Rule 1.4), the lawyer must also: • (1) Reasonably believe that the client has “diminished

capacity” (See Comment 6)

• (2) The lawyer must reasonably believe that the client “is at risk of substantial physical, financial or other harm unless action is taken (Id.)

Practical Question Checklist

Determining the Capacity of the Client

• 1. What is the capacity that is necessary for the action the client wishes to take?

• 2. Does the client currently have the capacity to complete the action he or she wishes to take?

Actions Necessary if Client Has Diminished Capacity

• 1. Are there actions the attorney can take to

maximize the client’s capacity so that the client can take the desired action?

• 2. How does the attorney continue to treat the client in a normal attorney/client relationship?

• 3. Does the client need protective action?

• 4. If so, what protective actions should be taken?

Five Steps

There are five steps an attorney should take when considering whether to represent a client with diminished capacity.

• (1) the attorney must determine whether the client is suffering from diminished capacity;

• (2) the attorney must evaluate whether the client has sufficient capacity to make a legally sound decision;

• (3) it must determined whether the attorney can use techniques to enhance a client’s capacity;

• (4) if the client lacks capacity, the attorney should determine whether he should take protective action pursuant to Rule 1.14(b);

• (5) if required, the attorney should determine what protective action should be taken.

Client with Diminished Capacity

Rule 1.14

• (a) When a client’s capacity to make adequately considered decisions in connection with a representation is diminished, whether because of minority, mental impairment or for some other reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client.

• (b) When the lawyer reasonably believes that the client has diminished capacity, is at risk of substantial physical, financial or other harm unless action is taken and cannot adequately act in the client’s own interest, the lawyer may take 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.

• (c) Information relating to the representation of a client with diminished capacity is protected by Rule 1.6. When taking protective action pursuant to paragraph (b), the lawyer is impliedly authorized under Rule 1.6(a) to reveal information about the client, but only to the extent reasonably necessary to protect the client’s interests.

Factors to Balance

• ABA Model R. Prof. Conduct 1.14 cmt. 6 provides: • In determining the extent of the client's diminished capacity,

the lawyer should consider and balance such factors as: the client's ability to articulate reasoning leading to a decision, variability of state of mind and ability to appreciate consequences of a decision; the substantive fairness of a decision; and the consistency of a decision with the known long-term commitments and values of the client.

• Additionally, "in appropriate circumstances, the lawyer may seek guidance from an appropriate diagnostician.”

• In all states the law starts with the presumption of capacity

Three Stages

Considerations of the mental capacities of a client arise in three general ways:

• Initially, before representation begins, an attorney must be sure that his potential client has the capacity to contract.

• Retaining an attorney requires that the client has such capacity. If the client lacks the capacity to contract, the attorney cannot be retained and representation cannot begin.

• Throughout representation an attorney must remain confident that the client has the mental capacity to give informed consent to the legal actions that the client is undertaking.

PA Rule 1.14

• Although no definition is found in Rule 1.14(a) provides guide-lines by establishing that “when [the] client’s capacity to make adequately considered decisions in connection with a representation is diminished .. . , [the attorney must,] as far as reasonably possible, maintain a normal client-lawyer relationship with the client.”

• So what is “normal”?

“Normal”

• A normal relationship is established when the client is able to define the scope of representation under Model Rule 1.2.

• The attorney must satisfy the core values of the attorney/client relationship, including: • Communication with the client (Rule 1.4); • confidentiality (Rule 1.6); • the client’s ability to give informed consent (Rule 1.2); • and finally, the attorney’s commitment to the client

(Rule 1.7).

1.14 Comment 1

• 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 client . . . suffers from a diminished mental capacity, however, maintaining the ordinary client-lawyer relationship may not be possible in all respects.

• In particular, a severely incapacitated person may have no power to make legally binding decisions. Nevertheless, a client with diminished capacity often has the ability to understand, deliberate upon, and reach conclusions about matters affecting the client’s own well-being.

NAELA Aspirational Standard E.1

• “Attorneys have special ethical responsibilities when representing clients whose capacity for making decisions may be diminished. Clients with diminished capacity are entitled to the same respect and attention as any other client.”

Black’s Law Dictionary

“Capacity”

• [t]he power to create or enter into a legal relation under the same circumstances in which a normal person would have the power to create or enter into such a relation; specif[ically], the satisfaction of a legal qualification, such as legal age or sound- ness of mind, that determines one’s ability to sue or be sued, to enter into a binding contract, and the like. . . .2

Uniform Guardianship and Protective Proceedings Act

“Incapacitated Person”

• an individual who . . . is unable to receive and evaluate information or make or communicate decisions to such an extent that the individual lacks the ability to meet essential requirements for physical health, safety, or self-care, even with appropriate technological assistance.

NAELA Aspirational Standard

• The attorney should follow a consistent and deliberate process to preliminarily screen clients for capacity.

• The attorney should document the observations that support the attorney’s conclusion that capacity is an issue. A number of different tests may be used to assess capacity. The attorney’s process should be followed and documented in every file.

Maximizing a Client’s Capacity

• After the requirements of Rule 1.14 are met, an attorney must also consider steps that can be taken to maximize a client’s capacity and thus preserve her decision making ability.

• These steps include: • Adjusting for physical limitations

• Developing effective new interview techniques

• Creating comfortable environments

• Providing clients with proper information

Criteria for Taking Protective Action

Confidentiality of Information

Rule 1.6 • (a) A lawyer shall not reveal information relating to representation

of a client unless the client gives informed consent, except for disclosures that are impliedly authorized in order to carry out the representation, and except as stated in paragraphs (b) and (c).

• (b) A lawyer shall reveal such information if necessary to comply with the duties stated in Rule 3.3.

• (c) A lawyer may reveal such information to the extent that the lawyer reasonably believes necessary: • (1) to prevent reasonably certain death or substantial bodily harm;

(2) to prevent the client from committing a criminal act that the lawyer believes is likely to result in substantial injury to the financial interests or property of another; (3) to prevent, mitigate or rectify the consequences of a client’s criminal or fraudulent act in the commission of which the lawyer’s services are being or had been used; or

PA Rule 1.6 Cont.

• (4) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim or disciplinary proceeding against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer’s representation of the client; or

• (5) to secure legal advice about the lawyer’s compliance with these Rules; or

• (6) to effectuate the sale of a law practice consistent with Rule 1.17; or • (7) to detect and resolve conflicts of interest from the lawyer’s change of

employment or from changes in the composition or ownership of a firm, but only if the revealed information would not compromise the attorney-client privilege or otherwise prejudice the client.

• (d) A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.

• (e) The duty not to reveal information relating to representation of a client continues after the client-lawyer relationship has terminated.

1.6 and 1.14 Working Together

• According to Rule 1.14(c) the attorney is authorized to reveal confidential information relating to the representation of a client with diminished capacity is protected by Rule 1.6.

• When taking protective action pursuant to paragraph (b), the lawyer is impliedly authorized under Rule 1.6(a) to reveal information about the client, but only to the extent reasonably necessary to protect the client’s interests.

• This information must also be disclosed with caution because of the potential impact it could have on the client.

Comment on Rule 1.6

• A fundamental principle in the client-lawyer relationship is that, in the absence of the client’s informed consent, the lawyer must not reveal information relating to the representation.

• “Informed Consent” • denotes the consent by a person to a proposed course of

conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct.

Hallmark of Trust

Comment 2

• There must exist a relationship of trust between the client and the attorney.

• The client is thus encouraged to seek legal assistance and to communicate fully and honestly with the attorney, no matter the subject matter.

• A lawyer needs this information to represent the client effectively and, if necessary, to advise the client to refrain from any wrongful conduct.

Attorney Client Privilege

Comment 3 • The attorney-client privilege and work-product doctrine apply

in judicial and other proceedings in which an attorney may be called as a witness or otherwise required to produce evidence concerning a client.

• The rule of client-lawyer confidentiality applies in situations other than those where evidence is sought from the lawyer through compulsion of law.

• The confidentiality rule, applies not only to matters communicated in confidence by the client but also to all information relating to the representation, whatever its source.

• A lawyer may not disclose such information except as authorized or required by the Rules of Professional Conduct or other law.

Revealing information

Comment 4

• Paragraph (a) prohibits a lawyer from revealing information relating to the representation of a client. This prohibition also applies to disclosures by a lawyer that do not in themselves reveal protected information but could reasonably lead to the discovery of such information by a third person.

• A lawyer’s use of a hypothetical to discuss issues relating to the representation is permissible so long as there is no reasonable likelihood that the listener will be able to ascertain the identity of the client or the situation involved.

Detection of Conflict of Interest

• Once gaining information relating to clients, the confidentiality rule is subject to limited exceptions.

• After learning certain information, lawyer may foresee that a client intends or learn that a client has caused serious harm to another person

• However, to the extent that a lawyer is required or permitted to disclose a client’s purposes or conduct, the client may be inhibited from revealing facts that would enable the lawyer effectively to represent the client.

• Generally, the public interest is better served if full disclosure by clients to their lawyers is encouraged rather than inhibited.

• With limited exceptions, information relating to the representation must be kept confidential by a lawyer, as stated in paragraph (a).

Threat to Life

Comment 8

• Where human life is threatened, the client is or has been engaged in criminal or fraudulent conduct, or the integrity of the lawyer’s own conduct is involved, the principle of confidentiality may have to yield, depending on the lawyer’s knowledge about and relationship to the conduct in question.

Bodily Harm

Comment 10

• A lawyer may foresee certain death or serious bodily harm to another person. Paragraph (c)(1) recognizes the overriding value of life and physical integrity and permits disclosure reasonably necessary to prevent reasonably certain death or substantial bodily harm.

• Such harm is reasonably certain to occur if it will be suffered imminently or there is a present and substantial threat that a person will suffer such harm at a later date if the lawyer fails to take action necessary to eliminate the threat.

Disclosure

Comment 11

• Paragraph (c)(2) is a limited exception to the rule of confidentiality that permits the lawyer to reveal information to the extent necessary to enable affected persons or appropriate authorities to prevent the client from committing a crime that is reasonably certain to result in substantial injury to the financial or property interests of another.

• Disclosure is permitted under paragraph (c)(2) only where the lawyer reasonably believes that such threatened action is a crime; the lawyer may not substitute his or her own sense of wrongdoing for that of society at large as reflected in the applicable criminal laws. The client can, of course, prevent such disclosure by refraining from the wrongful conduct.

Criminal Conduct

Comment 12

• A lawyer may not counsel or assist a client in conduct that is criminal or fraudulent.

• To avoid assisting a client’s criminal or fraudulent conduct, the lawyer may have to reveal information relating to the representation. Rule 1.6(c)[(2)](3) permits doing so.

Complicity

Comment 14 • Where a legal claim or disciplinary charge alleges complicity of

the lawyer in a client’s conduct or other misconduct of the lawyer involving representation of the client, the lawyer may respond to the extent the lawyer reasonably believes necessary to establish a defense.

• The same is true with respect to a claim involving the conduct or representation of a former client. Such a charge can arise in a civil, criminal, disciplinary or other proceeding and can be based on a wrong allegedly committed by the lawyer against the client or on a wrong alleged by a third person; for example, a person claiming to have been defrauded by the lawyer and client acting together.

• If the lawyer is charged with wrongdoing in which the client’s conduct is implicated, the rule of confidentiality should not prevent the lawyer from defending against the charge.

Legal Advice

Comment 16

• A lawyer’s confidentiality obligations do not preclude a lawyer from securing confidential legal advice about the lawyer’s personal responsibility to comply with these Rules.

• In most situations, disclosing information to secure such advice will be impliedly authorized for the lawyer to carry out the representation. Even when the disclosure is not impliedly authorized, paragraph (c)(5) permits such disclosure because of the importance of a lawyer’s compliance with the Rules of Professional Conduct.