One of the most confoundingly difficult challenges we all face as lawyers is what to do when a client’s cognitively declining in a way that’s clearly affecting her decision-making abilities, but it’s just as clear that she’s still able to understand your advice and make up her own mind about what she wants.
No matter what kind of lawyering you do, if you practice in Florida and haven’t dealt with this problem yet, just wait, sooner or later you will. Florida has the highest percentage of senior citizens of any state in the nation (21%), and by 2040 that percentage is estimated to grow to over 25%. A natural consequence of a “graying” population is an increased prevalence of dementia.
Against this backdrop our supreme court recently published an opinion that (among many other ethics-rule changes) dramatically revised ethics rule 4-1.14 (Client Under a Disability) — now rule 4-1.14 (Client with Diminished Capacity). These much needed changes add new subdivisions to the rule, extensive new commentary, and generally bring Florida’s version of the rule in line with the current version of ABA Model Rule 4.14.
Florida’s Revised Rule 4-1.14 (Client with Diminished Capacity):
Florida’s new and improved rule 4-1.14 is an important and much needed tool for lawyers representing clients with diminished capacity. The rule now squarely addresses the key questions you’ll want answered when faced with this kind of situation, such as:
- How is the lawyer-client relationship altered when a client has diminished capacity?
- What constitutes a reasonable belief that a client has diminished capacity?
- When may a lawyer take protective action on behalf of a client with diminished capacity?
- What protective actions may a lawyer ethically take on behalf of a client with diminished capacity?
- When may a lawyer disclose a client’s diminished capacity to third parties?
Fortunately, we’re not the first state to adopt the ABA model rule. Which means there’s lots of solid commentary out there if you’re interested in taking a deeper dive into the intricacies of this rule change or, more practically, understanding how these changes could profoundly impact your day-to-day practice. One of the best articles I found is The Delicate Ethical Requirements of Representing a Person With Diminished Capacity, by Del O’Roark, Loss Prevention Consultant, Lawyers Mutual Insurance Company of Kentucky.
Is taking “protective action” for clients with diminished capacity mandatory? NO
According to a Florida Bar News report entitled Rule amendment provides guidance for dealing with clients with diminished capacities, one of the primary reasons for why the newly-adopted revisions to rule 4-1.14 were introduced was to address a lack of clarity under the old rule regarding whether a lawyer’s required to seek the appointment of a guardian for a client with diminished capacity or required take any other form of protective action in these cases. That ambiguity is now gone. The revised rule
“… now makes it clear that a lawyer is not required to seek a determination of incapacity, or the appointment of a guardian, or take other protective action with respect to a client,” [said Andrew Sasso, chair of the Real Property, Probate and Trust Law Section’s Ethics and Professionalism Committee]. “I think there was some debate before this change whether a lawyer was required to petition a court to have their own client’s capacity determined and appoint a guardian.” …
Many lawyers will [also] welcome the removal of a sentence from the comment section, Sasso said. The sentence stated that “if the person has no guardian or legal representative, the lawyer often must act as de facto guardian.” “Nobody understood what that meant,” Sasso said. “Exactly what is a ‘de facto guardian,’ and what are your obligations and fiduciary duties as a ‘de facto guardian?’”
The reason the old rule’s ambiguity was a problem is that no one wants to get caught up in one of those nightmare scenarios where you’re damned if you do, damned if you don’t. As in, if your client has diminished capacity and a deal goes south or an estate plan’s overturned in a will contest you could get disbarred if someone files a Bar complaint alleging — in hindsight — that you should’ve taken protective action for your client or, alternatively, that you should not have taken protective action for your client. Either way, the professional risk was ever present.
For example, in In re Eugster, 166 Wn. 2d 293 (Wash. 2009), a Washington lawyer got his license suspended for 18 months (and a dissenting justice wanted to disbar him) for filing a petition for appointment of a guardian for an elderly estate planning client the lawyer believed was “vulnerable, and unable to understand her financial affairs, and perhaps being taken advantage of.” Sound familiar? And oh by the way, the lawyer in this case was operating under the same version of rule 1.14 Florida had in place prior to the latest round of revisions.
To avoid this catch-22 trap our new and improved rule 4-1.14 has a sentence that’s not found in the ABA model rule making clear that being someone’s lawyer doesn’t obligate you to insert yourself into their personal lives if you believe they’re sliding into incapacity (no one says you can’t, you’re just not required to do so). Here’s the new Florida-specific sentence, which was inserted at the beginning of new subsection (b) entitled “protective action”:
Florida’s Revised Bar Rule 4-1.14 (Client with Diminished Capacity): … (b) Protective Action. A lawyer is not required to seek a determination of incapacity or the appointment of a guardian or take other protective action with respect to a client.
But wait, why do we even need an ethics rule tailored just for clients with diminished capacity anyway?
Normal attorney-client relationships are premised on the assumption that we’re working with clients that have the cognitive ability to understand the legal advice we’re giving them and make reasoned decisions based upon that advice all by themselves. In other words, it’s not a group project involving consultations with family members or the possibility of court intervention in some guardianship proceeding.
ABA Formal Opinion 96-404 (which explains much of the theory underpinning the current version of the ABA model rule) describes the normal interaction between a lawyer and client as follows:
A normal client-lawyer relationship presumes that there can be effective communications between client and lawyer, and that the client after consultation with the lawyer, can make considered decisions about the objectives of the representation and the means of achieving them.
However, again as noted in ABA Formal Opinion 96-404:
When the client’s ability to communicate, to comprehend and assess information, and to make reasoned decisions is partially or completely diminished, maintaining the ordinary relationship in all respects may be difficult or impossible.
It’s once you cross into that grey area of diminished (but still intact) capacity that the specially-tailored provisions of rule 4-1.14 kick in.
For example, it’s now a group project. Is that OK?
When working with an elderly client whose cognitive capacity is diminished, but she’s still very much able to understand your advice when properly communicated and make reasoned decisions about what she wants, it often helps to involve family members in the representation. It’s now a group project. Is that OK? It is under rule 4-1.14, which provides the following guidance in the rule’s commentary:
The client may wish to have family members or other persons participate in discussions with the lawyer. When necessary to assist in the representation, the presence of these persons furthers the rendition of legal services to the client and does not waive the attorney-client privilege. Nevertheless, the lawyer must keep the client’s interests foremost and, except for protective action authorized under subdivision (b), must look to the client, and not family members, to make decisions on the client’s behalf. A lawyer should be mindful of protecting the privilege when taking protective action.
And “consulting with family members” is one of the specific protective-action examples provided in the rules commentary under the “Taking protective action” subheading.
But what about the client’s right to confidentiality? Doesn’t that bar disclosure of the client’s diminished capacity to family members? Not under rule 4-1.14. New subsection (c) of the rule provides as follows:
(c) Confidentiality. Information relating to the representation of a client with diminished capacity is protected by the rule on confidentiality of information. When taking protective action under this rule, the lawyer is impliedly authorized under the rule on confidentiality of information to reveal information about the client, but only to the extent reasonably necessary to protect the client’s interests.
The commentary to this portion of the rule expands on the confidentiality issue with the following additional guidance.
Disclosure of client’s condition
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 proceedings for involuntary commitment. Information relating to the representation is protected by rule 4-1.6. Therefore, unless authorized to do so, the lawyer may not disclose confidential information. When taking protective action under subdivision (b), the lawyer is impliedly authorized to make the necessary disclosures. Nevertheless, given the risks of disclosure, subdivision (c) 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 determine whether it is likely the person or entity consulted with will act adversely to the client’s interests before discussing matters related to the client. The lawyer’s position in these cases is an unavoidably