Code of Conduct and Incapacitated Clients

General rule when a client has diminished capacity

Rule 3.2-9  When a client’s ability to make decisions is impaired because of minority or mental disability, or for some other reason, the lawyer must, as far as reasonably possible, maintain a normal lawyer and client relationship

Commentary

About Capacity

  • A client’s ability to make decisions depends on such factors as age, intelligence, experience and mental and physical health and on the advice, guidance and support of others.
  • A client’s ability to make decisions may change, for better or worse, over time.
  • A client may be mentally capable of making some decisions but not others.

Lawyer’s Duty

  • A lawyer and client relationship presupposes that the client has the requisite mental ability to make decisions about his or her legal affairs and to give the lawyer instructions.
  • When a client is, or comes to be, under a disability that impairs his or her ability to make decisions, the lawyer will have to assess whether the impairment is minor or whether it prevents the client from giving instructions or entering into binding legal relationships.

Prohibition – New Clients Lacking Capacity

There is a prohibition against accepting a new retainer from a client who lacks capacity to instruct counsel :

“A lawyer who believes a person to be incapable of giving instructions should decline to act.”

Note – there were some former specific exceptions to this prohibition spelled out in the Handbook that was the predecessor to the Code:

  • where the lawyer is appointed by a court or tribunal,
  • or by operation of statute,
  • or generally with respect to a proceeding where the client’s capacity is in issue

While these gave some comfort to lawyers, they seem to have been removed when the Handbook became the Code of Conduct.  An open question is – do these exceptions still apply?

Protective Action – Clients

  • If a client is discovered to have diminished capacity, you may need to take steps to have a lawfully authorized representative, such as a litigation guardian, appointed or to obtain the assistance of the PGT to protect the interests of the client.
  • Whether that should be done depends on all relevant circumstances, including the importance and urgency of any matter requiring instruction.
  • In any event, the lawyer has an ethical obligation to ensure that the client’s interests are not abandoned. Until the appointment of a legal representative occurs, the lawyer should act to preserve and protect the client’s interests.

Protective Action – Non-clients

  • Where a potential client lacks capacity, you are permitted to take action “only to the extent necessary to protect the person until a legal representative can be appointed.”
  • But only if:
    • you reasonably believes that the person has no other agent or representative and
    • a failure to act could result in imminent and irreparable harm

Protective Actions and Disclosures

When a lawyer takes protective action on behalf of a person or client lacking in capacity, the authority to disclose necessary confidential information may be implied in some circumstances: See Commentary under rule 3.3-1 (Confidentiality)

  • If the court or other counsel becomes involved, the lawyer should inform them of the nature of the lawyer’s relationship with the person lacking capacity.

Disagreements with an Agent

  • When a lawyer takes protective action on behalf of a person or client lacking in capacity, the authority to disclose necessary confidential information may be implied in some circumstances: See Commentary under rule 3.3-1 (Confidentiality)
  • If the court or other counsel becomes involved, the lawyer should inform them of the nature of the lawyer’s relationship with the person lacking capacity.