Clients on the Cusp: How to Reconcile a Normal Lawyer-Client Relationship With the Heightened Duty to Protect a Client Under a Mental Impairment

The Bencher—January/February 2021

By Tami L. Augen Rhodes, Esquire

My client was brilliant, but somewhere in the deep recesses of his mind, turmoil existed. My knowledge of that, and the trajectory of that particular litigation, led me to evaluate my role and responsibilities to a client with a mental impairment. Rule 4-1.14 of the Rules Regulating the Florida Bar, Client Under a Disability, tracks the language of the American Bar Association (ABA) Model Rules of Professional Conduct, Rule 1.14, Client with Diminished Capacity, (MR 1.14). This article will cite to the ABA Model Rule as a version of the same has been adopted in nearly all 50 states.

MR 1.14 (a) states, “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.” The first step in determining whether your client has a diminished capacity is to ascertain what the status of your client is. If your client is a minor, the analysis is easy.

However, how can an attorney, someone who is trained in the law, and not in evaluating mental health issues, begin to determine if a client is under a mental impairment? Law professor David A. Green discusses the difficulty inherent in this analysis in a 2003 article. He outlines several types of mental disabilities or impairments, such as developmental disabilities, mental disabilities, mental illness, and substance abuse. See article “I’m OK—You’re OK: Educating Lawyers to Maintain a Normal Client-Lawyer Relationship with a Client with a Mental Disability,” 28 J. Legal Prof. 65. Further, a mental impairment may not be something that is initially observable to the attorney, nor freely disclosed by the client. Attorneys should be alert to inconsistencies, keenly observe situations, and critically analyze all aspects of attorney-client interaction to ascertain whether a mental impairment may be present.

The overriding purpose of MR 1.14 (a), however, is the mandatory language that an attorney shall maintain a normal client-lawyer relationship with the client. The attorney should advocate according to the goals of the client. Moreover, clients are permitted to make unwise decisions and bad bargains. Accordingly, even a client under a mental impairment is permitted to make a decision that would be contrary to the client’s best interest. The attorney’s ethical obligation is to take appropriate steps to ensure that the client-lawyer relationship is honored. To comply with this obligation when representing someone under a mental impairment, the attorney needs to take steps uniquely tailored to the client. Some steps you can take include taking extra time to explain concepts to the mentally impaired client, providing additional details and examples when discussing concepts, conducting more frequent “check-ins” to ask the client if he or she understands or has questions, and offering the client additional time to make decisions.

Scholarly articles evaluating MR 1.14 indicate an overall lack of specific guidance that would provide clarity to the practitioner. You may be left floundering and wondering if you are, in fact, acting in your impaired client’s best interest. The confusion is further exacerbated by the dichotomy between part (a) and part (b). While the first part of MR 1.14 instructs that we shall have a normal client-lawyer relationship, the second part of MR 1.14 appears to place a heightened requirement on counsel.

MR 1.14 (b) reads, “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.” This subpart is permissive and appears to fracture the requirement that you shall have a normal client-lawyer relationship with a client suffering from a mental impairment.

The internal conflict that stems from the different subparts of the MR becomes more apparent the more you attempt to reconcile part (a) with part (b). Consider these statements:

• A client under a mental impairment with a diminished capacity is permitted to select the goals of legal representation, unless there is a substantial risk of harm if the client were to achieve his or her stated goal.
• A client under a mental impairment with a diminished capacity is permitted to make a bad decision, unless the decision is so bad that it is not in the client’s best interest.
• A client under a mental impairment with a diminished capacity is permitted to enter into a contract, unless the contract would cause substantial financial harm.

How can you maintain a normal client-lawyer relationship with a client under a mental impairment while at the same time adhering to a heightened duty to that same client?

Tip No. 1: Ascertain the nature of the mental impairment. Has your client disclosed a diagnosis by a mental health professional? Is your client under a physician’s care or taking prescription medication? Is the client alert and appropriately responsive during your conversations? Is he or she in a stupor or erratic in thought and demeanor? It is easy to determine if someone is under the age of majority or is an elderly client with a dementia diagnosis. What is more difficult is to ascertain different mental illness, some of which may remain undiagnosed. Cognitive or processing disorders may go undiagnosed for a lifetime, and you are now being tasked with a professional obligation to impairments that elude even medical professionals. To the extent possible, attempt to ascertain your client’s ability to understand your advice and explanations and to appropriately act upon that advice.

Tip No. 2: Confirm, confirm, confirm. First, speak with your client. Provide clear, detailed, and simple explanations and analysis. Be aware of your client’s feedback—both verbal and nonverbal—during these conversations. Next, follow up with your client in writing. Provide this client with an opportunity to see and read information that you have already gone over with him or her verbally in person (or, these days, face-to-face via Zoom). Finally, circle back with your client to test his or her understanding of the legal concepts and options available as well as your advice.

Tip No. 3: Ascertain your client’s selected course of action. Are your client’s decisions within the realm of reasonableness for someone similarly situated? Do you believe there has been contemplation in regard to the legal decision? Do you believe the client understands the ramifications of the decision? Is the decision in line with your legal advice? Can your client express reasoning for the decision? If your client’s selected course of action is so outside the norm, this is a red flag that may indicate that you need to discuss the matter further and ensure that the client fully understands the legal issues and ramifications of his or her decisions. You may want to consider different support persons to be involved in these discussions to ensure that sufficient safeguards are in place for the client suffering from an impairment. Typically, the involvement of such individuals does not violate the attorney-client privilege.

Tip No. 4: Ascertain if undue influence has come to bear upon your client. You need to continue your communication with your client and ask if anyone has spoken to him or her about the matter. Is your client afraid of what the outcome of a decision may be and is someone promising a better outcome if your client makes certain legal decisions over other decisions? If your client is being unduly influenced due to mental impairment, is he or she still truly capable of making decisions in his or her best interest? At this point, you will want to consider what other resources are available to ensure that either the client can make decisions in his or her best interest or you may want to seriously contemplate what additional assistance the client needs pursuant to part (b) of MR 1.14.

Tip No. 5: Protect your client. Finally, if you have come to a point during the course of your representation in which you find that your client is suffering from a mental impairment, does not fully appreciate the ramifications of his or her decisions, and those decisions, in your professional opinion, are bound to cause serious harm to your client or have risen to a degree in which his or her own best interests are jeopardized, then you have come to the point where you must take further action to protect your client. While the “must” is not mandated by the rule, when you get to this point, the “must” comes from your practice, your ethics, and your professionalism. You have ever-increasing options available that go from using your professional judgment to act in the best interest of your client, to seeking involvement of others to protect your client, to ultimately seeking a
guardian ad litem or even guardian for your client. While this article does not focus on MR 1.14 (c), which provides for protection against disclosure of client information to the extent necessary to protect your client, know that most states adopt this provision within the diminished capacity rule itself or as a separate numbered rule. Accordingly, you are authorized to disclose otherwise confidential information to the extent necessary to protect your client.

These are not easy decisions to make and what is required of you is about as clear as mud. From an attorney needing to recognize circumstances that trained medical professionals have difficulty identifying, to navigating the different degrees of harm that may befall your client, to taking action that your client may view as the ultimate betrayal such as seeking a guardian to substitute his or her judgment for that of the impaired client, you need to bring your highest lawyering skills to bear upon this process. As Professor James R. Devine stated in his 1984 article in reference to the newly adopted 1983 ABA Model Rule of Professional Conduct 1.14, “it thus appears that Rule 1.14 (b) takes away what Rule 1.14 (a) has given. On one hand, a normal attorney-client relationship is required when the client is disabled. On the other hand, the lawyer can also take actions that the lawyer believes are in the client’s interest. As noted in the comment to the rule, ‘the lawyer’s position in such cases in an unavoidably difficult one.’” See James R. Devine, “The Ethics of Representing the Disabled Client: Does Model Rule 1.14 Adequately Resolve the Best Interest/Advocacy Dilemma,” 49 Mo. L. Rev. (1984).

Nearly four decades since it was first adopted, MR 1.14 continues its nebulous existence, leaving lawyers in the unavoidably difficult position of ascertaining just how to protect the most vulnerable among us. You are up to this task. You will be able to see through the haze and balance advocating for your client with a mental impairment with taking appropriate action to protect the client who strays too far from his or her ability to act in one’s best interest, so long as you keep your client’s best interest as the focus.

Tami L. Augen Rhodes, Esquire, is the immediate past president of the Craig S. Barnard American Inn of Court in West Palm Beach, Florida. Augen Rhodes practices exclusively marital and family law as a litigator, mediator, and collaborative attorney. She is the president and founder of the Palm Beach Academy of Collaborative Professionals.