Lawyers' Obligations When Representing Clients With Diminished Capacity

21 Pages Posted: 1 Dec 2016

See all articles by Elissa Germaine

Elissa Germaine

Elisabeth Haub School of Law at Pace University

Date Written: October 26, 2016

Abstract

Lawyers have a significant role to play in protecting clients with diminished capacity from financial exploitation. Clients with diminished capacity present significant challenges, and the existing rules might not provide every answer. Of course, the relevant jurisdiction’s ethical rules should always serve as a starting point, most likely at the jurisdiction’s equivalent of ABA Model Rule 1.14, Clients with Diminished Capacity. Though laudable in its goal to balance the competing interests and concerns, Rule 1.14 leaves much unanswered. Moreover, it is not the only source of ethical considerations concerning clients with diminished capacity. Thus, attorneys should refer to the “Four C’s” of legal ethics: (1) client identification, (2) conflicts of interest, (3) confidentiality, and (4) competence. In addition, the National Academy of Elder Law Attorneys (NAELA) created a set of guidelines in 2005 – the “Aspirational Standards for the Practice of Elder Law” – to assist attorneys practicing in the area of Elder Law. The Aspirational Standards aim to fill in the gaps and answer questions that might not be fully answered by the ABA Model Rules of Professional Conduct and each state’s professional responsibility rules. Lawyers should conduct an integrated analysis that addresses the issues of client identity, multiple representation and conflicts of interest, confidentiality, and the interests of third parties to determine how to best represent the interests of the identified client. This article provides an overview of the issues that attorneys must consider to meet their ethical duties to clients who may suffer from diminished capacity. Section I provides an overview of the Four C’s of client representation, unpacking the ethical obligations and choices the attorney must make. Section II outlines the guidelines for representing a client with diminished capacity, focusing on keeping the relationship as normal as reasonably possible and, when protective action is needed, taking the least restrictive action possible.

Keywords: legal ethics, legal profession, diminished capacity, incapacity, cognitive decline, legal practice

JEL Classification: K19, K49

Suggested Citation

Germaine, Elissa, Lawyers' Obligations When Representing Clients With Diminished Capacity (October 26, 2016). Available at SSRN: https://ssrn.com/abstract=2877811 or http://dx.doi.org/10.2139/ssrn.2877811

Elissa Germaine (Contact Author)

Elisabeth Haub School of Law at Pace University ( email )

78 North Broadway
White Plains, NY 10603
United States

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