Ethical Issues in Representing Clients with Diminished Capacity
Representing People with Disabilities, 4th Ed., NYSBA, 2013
37 Pages Posted: 19 Feb 2013
Date Written: October 18, 2012
Clients with diminished capacity due to disability are entitled to the same competent and diligent representation from their lawyers as are all clients. They have a right to confidentiality in communication and a right to the independent judgment of their lawyers. When a client’s decision-making capacity is impaired by a disability, however, it may be more difficult for the lawyer to ensure these rights or to maintain a conventional lawyer-client relationship. A lawyer representing a client with questionable capacity may be faced with ethical questions: When, if at all, should the lawyer substitute his or her judgment for that of an incapacitated or questionably capacitated client? To whom should the lawyer look for decision-making assistance when a client is impaired? May a lawyer seek assistance from the client’s family, other third parties or the courts without violating the duty of confidentiality to the client? Finally, is it legally or ethically permissible for a lawyer to refuse to represent a client with a disability or to withdraw from representation if a client becomes disabled? This chapter in the New York State Bar Association forthcoming publication, REPRESENTING PEOPLE WITH DISABILITIES, focuses on some of the issues a lawyer may encounter in representing clients with diminished capacity, and examines the ways in which these issues are addressed in New York under the New York Rules of Professional Conduct and other ethical guidance.
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