Attorneys strive to provide the best representation to their clients. Yet, sometimes lawyers are confronted with clients who have a diminished mental capacity.
This can be especially true if an attorney's practice focuses on elder law, disability benefits, or estate planning.
Lawyers may be presented with an ethical dilemma. How do you represent these individuals without breaking confidentiality, and how do you ensure their interests are met?
It may very well depend on the ethical rules in your jurisdiction. The ABA Model Rules of Professional Conduct has a specific section on point: Rule 1.14.
Under the model rules, an attorney is required maintain a normal attorney-client relationship as much as reasonably possible.
When an attorney finds that the client cannot "adequately act" in their own interest, the lawyer can take "protective action." This includes consulting with individuals that have the ability to assist and protect the client. And it could mean seeking a guardian ad litem or conservator.
The model rule also addresses the issue of confidentiality. Attorneys representing clients with diminished capacity are expected to conform to the standard rules that apply to all clients. When lawyers seek "protective action" under Rule 1.14, they are impliedly authorized to reveal only as much information that is necessary in order to safeguard the client's interest.
But what should you do if a client with diminished capacity comes to a meeting with a child or guardian? At that point, you likely need to clearly establish who the client is. And lay out the boundaries and scope of your representation.
Of course, not all states will conform to the ABA Model Rules. Lawyers may need to do their own legal research into their state's ethics rules when dealing with clients with diminished mental capacities.
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