Model Rules changes aim to help avoid ableism when representing clients with disabilities
Lawyers, when representing an individual with disabilities, can make assumptions, and some might not want to spend time trying to figure out how best to communicate with that client, says Shannon Cogan, the associate executive director and general counsel at the Sacramento, California-based Disability Rights California.
And they might make a quick assessment of a client’s mental capacity, she adds.
“There’s a continual stigma against people with all kinds of disabilities as to whether they can make their own decisions,” Cogan says.
But there’s been a push in recent years to shift to a more nuanced understanding of mental ability and strengthen clients’ rights to make decisions for themselves as much as possible, legal experts say.
Language changes for ABA Model Rule 1.14, which provides guidance for representing clients who have challenges making reasoned decisions, was approved by the House of Delegates during the midyear meeting in February.
The revision modernized the language and gives more specific guidance.
The changes shift the focus toward helping lawyers find ways to work with their clients in the decision-making process and away from inadvertently encouraging more restrictive moves, such as formal proceedings for guardianship or conservatorship, says Robert Dinerstein, a former chair of the ABA Commission on Disability Rights and professor emeritus at American University Washington College of Law.
In addition, the new language spells out ways for lawyers to use supports and accommodations, such as text-to-speech software, to help build and maintain an “ordinary lawyer-client relationship,” he says.
Examples of client conditions for which the Model Rule would apply are cognitive disabilities, age and substance abuse.
Cogan says the changes reflect that “every person is a human being with a right to make their own decisions.” She adds that she’s not sure whether California will adopt the new Model Rule.
Also, the rule change replaces the term “client with diminished capacity” with “client with decision-making limitations.”
The old language was “ableist,” Dinerstein says.
“Now we have a greater awareness about the broad range of abilities clients bring in when they come to the table. We hope [the revised rule] will provide more guidance to lawyers trying to do right by their clients.”
The Model Rule describes a person with decision-making limitations as someone who “has substantial difficulty receiving and understanding information, evaluating information, or making or communicating decisions even with appropriate supports or accommodations.”
With the changed wording, law- yers can reveal confidential infor- mation without the client’s informed consent when needed, but only “to the extent the lawyer reasonably be- lieves necessary to protect the client’s interests.”
Sari Montgomery specializes in legal ethics and professional responsibility at Robinson, Stewart, Montgomery & Doppke in Chicago.
She says that while states have yet to adopt the new language, she’s hopeful they will implement the changes soon.
“We have a better understanding of decision-making limitations now than we did 20 years ago, and the changes reflect that,” says Montgomery, chair of the ABA Standing Committee on Professional Regulation. Montgomery also points out that Maryland led in this area by updating its version of Rule 1.14 in 2023 to modernize the language and emphasize finding ways to connect with and support clients.
‘The last option’
Nina A. Kohn, a professor at Syracuse University College of Law who helped draft the updated language, says the rule approaches the options of guardianship and conservatorship differently than it has in the past.
The requirements and definitions of adult guardianships and conservatorships vary considerably state by state. In Virginia, for example, a guardianship manages an individual’s personal decisions while a conservatorship involves financial decisions only, although these roles can be combined into a single appointment.
Guardianship and conservatorship, Kohn says, are “really, really consequential actions” that should “never be the go-to or first step, but the last resort.”
The Model Rule also now makes clear that people subject to guardianship or conservatorship are allowed to challenge the arrangement, and lawyers can help them in that process, Kohn says.
John Craft is a professor at Faulkner University’s Thomas Goode Jones School of Law, where he supervises the law school’s elder law clinic.
The new Model Rule, he says, will have practical implications, particularly by emphasizing that a lawyer must first “determine who the client is” and build on that relationship—even if there are family members “who are going to say what they think should happen to the client.
“Sometimes when you have an older client, you get a call from the client’s son or daughter saying that they need power of attorney or something,” he says. “That’s a tricky situation. It’s a good reminder to get that right,” Craft adds.
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