North Carolina Administrative Code › Title 27 - STATE BAR › Chapter 02 - RULES OF PROFESSIONAL CONDUCT OF THE NORTH CAROLINA STATE BAR › Section .0100 - CLIENT LAWYER RELATIONSHIP › Section 02 RULE 1.14 - CLIENT WITH DIMINISHED CAPACITY

Current through Register Vol. 39, No. 2, July 15, 2024
(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 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.
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 is a minor or 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. For example, children as young as five or six years of age, and
				certainly those of ten or twelve, are regarded as having opinions that are
				entitled to weight in legal proceedings concerning their custody. So also, it
				is recognized that some persons of advanced age can be quite capable of
				handling routine financial matters while needing special legal protection
				concerning major transactions.
[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 possible accord the
				represented person the status of client, particularly in maintaining
				communication.
[3] 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
				such persons generally does not affect the applicability of the attorney-client
				evidentiary privilege. Nevertheless, the lawyer must keep the client's
				interests foremost and, except for protective action authorized under paragraph
				(b), must to look to the client, and not family members, to make decisions on
				the client's behalf.
[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. In
				matters involving a minor, whether the lawyer should look to the parents as
				natural guardians may depend on the type of proceeding or matter in which the
				lawyer is representing the minor. If the lawyer represents the guardian as
				distinct from the ward, and is 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.
See
Rule 1.2(d).
Taking Protective Action
[5] If a lawyer reasonably believes that a
				client is at risk of substantial physical, financial or other harm unless
				action is taken, and that a normal client-lawyer relationship cannot be
				maintained as provided in paragraph (a) because the client lacks sufficient
				capacity to communicate or to make adequately considered decisions in
				connection with the representation, then paragraph (b) permits the lawyer to
				take protective measures deemed necessary. Such measures could include:
				consulting with family members, using a reconsideration period to permit
				clarification or improvement of circumstances, using voluntary surrogate
				decision-making tools such as durable powers of attorney or consulting with
				support groups, professional services, adult-protective agencies or other
				individuals or entities that have the ability to protect the client. In taking
				any protective action, the lawyer should be guided by such factors as the
				wishes and values of the client to the extent known, the client's best
				interests and the goals of intruding into the client's decision-making autonomy
				to the least extent feasible, maximizing client capacities and respecting the
				client's family and social connections.
[6] 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. In appropriate
				circumstances, the lawyer may seek guidance from an appropriate
				diagnostician.
[7] If a legal
				representative has not been appointed, the lawyer should consider whether
				appointment of a guardian ad litem or guardian is necessary to protect the
				client's interests. Thus, if a client with diminished capacity has substantial
				property that should be sold for the client's benefit, effective completion of
				the transaction may require appointment of a legal representative. In addition,
				rules of procedure in litigation sometimes provide that minors or persons with
				diminished capacity must be represented by a guardian or next friend if they do
				not have a general guardian. In many circumstances, however, appointment of a
				legal representative may be more expensive or traumatic for the client than
				circumstances in fact require. Evaluation of such circumstances is a matter
				entrusted to the professional judgment of the lawyer. In considering
				alternatives, however, the lawyer should be aware of any law that requires the
				lawyer to advocate the least restrictive action on behalf of the client.
Disclosure of the Client's Condition
[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
				proceedings for involuntary commitment. Information relating to the
				representation is protected by Rule 1.6. Therefore, unless authorized to do so,
				the lawyer may not disclose such information. When taking protective action
				pursuant to paragraph (b), the lawyer is impliedly authorized to make the
				necessary disclosures, even when the client directs the lawyer to the contrary.
				Nevertheless, given the risks of disclosure, paragraph (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 that 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 such cases is an unavoidably difficult
				one.
Emergency Legal Assistance
[9] In an emergency where the health, safety
				or a financial interest of a person with seriously diminished capacity is
				threatened with imminent and irreparable harm, a lawyer may take legal action
				on behalf of such a person even though the person is unable to establish a
				client-lawyer relationship or to make or express considered judgments about the
				matter, when the person or another acting in good faith on that person's behalf
				has consulted with the lawyer. Even in such an emergency, however, the lawyer
				should not act unless the lawyer reasonably believes that the person has no
				other lawyer, agent or other representative available. The lawyer should take
				legal action on behalf of the person only to the extent reasonably necessary to
				maintain the status quo or otherwise avoid imminent and irreparable harm. A
				lawyer who undertakes to represent a person in such an exigent situation has
				the same duties under these Rules as the lawyer would with respect to a client.
[10] A lawyer who acts on behalf
				of a person with seriously diminished capacity in an emergency should keep the
				confidences of the person as if dealing with a client, disclosing them only to
				the extent necessary to accomplish the intended protective action. The lawyer
				should disclose to any tribunal involved and to any other counsel involved the
				nature of his or her relationship with the person. The lawyer should take steps
				to regularize the relationship or implement other protective solutions as soon
				as possible.