Pennsylvania Code › Title 204 - JUDICIAL SYSTEM GENERAL PROVISIONS › Part V - PROFESSIONAL ETHICS AND CONDUCT › Subpart A - PROFESSIONAL RESPONSIBILITY › Chapter 81 - RULES OF PROFESSIONAL CONDUCT › Subchapter A - RULES OF PROFESSIONAL CONDUCT › CLIENT-LAWYER RELATIONSHIP › Rule 1.14 - Client with Diminished Capacity

Current through Register Vol. 54, No. 28, July 13, 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, 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.
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
						diminished capacity 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 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, conservator 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. Normally, a lawyer
						would not seek compensation for such emergency actions taken.