Representation of clients with 'decision-making limitations' addressed in new ABA ethics opinion
Lawyers who have clients with “decision-making limitations” must maintain the ordinary lawyer-client relationship as much as possible, according to a new ethics opinion from the ABA Standing Committee on Ethics and Professional Responsibility.
A client with decision-making limitations is one who has “substantial difficulty” understanding information or communicating decisions, according to Model Rule 1.14(a) of the ABA Model Rules of Professional Conduct.
Language changes for the rule, which provides guidance for representing clients who have challenges making reasoned decisions, were approved by the ABA House of Delegates during the ABA Midyear Meeting in February.
According to Formal Opinion 525, released Wednesday, a lawyer should determine whether a client fits into this category by evaluation. Things to consider are whether the client has decision-making limitations, is at risk of substantial harm, and can’t adequately act in their own interest, according to the opinion.
If the answer is yes to the three questions and the lawyer determines that protective action is needed, according to the opinion, that could in limited circumstances help the client obtain guardianship, particularly if no less restrictive action under the circumstances will help the client.
The opinion cautions that “the appointment of a guardian is a serious deprivation of the client’s rights and should not be pursued if other, less drastic solutions are available.”
Less restrictive measures might include consulting with family members, use of durable power of attorney, or the appointment of only a guardian ad litem—if the lawyer-client relationship consists of only a single litigation matter, according to the opinion.
It also said if a guardianship is the only option, the lawyer may file the petition, though the lawyer may prefer someone else, such as a family members of the client, to seek guardianship.
But again, seeking guardianship is an extreme measure, according to the opinion. The basic rule is that a lawyer should “strive to maintain an ordinary client-lawyer relationship when a client has decision-making limitations.”
A Sept. 2 press release from the ABA is here.
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