On demand 1h 3m 05s Intermediate

Conflicts, Confidentiality, & Client Capacity: Ethical Conundra for Attorneys

Start your free 7-day trial
* Claim credit(s) for one free course during your 7-day trial.

Conflicts, Confidentiality, & Client Capacity: Ethical Conundra for Attorneys

This course examines the ethical and practical issues arising when a client appears to be in a state of diminished capacity, and it provides counsel with methods for detecting an impairment and with focused analysis of the relevant Model Rules of Professional Conduct. The updated terms of Rule 1.14, entitled “Client with Diminished Capacity,” will be explored, with special attention given to the integration of key tenets of the Model Rules governing client communications, confidentiality, conflicts of interest and termination of representation into Rule 1.14.

Transcript

Hello, my name is Kevin Rack. I'm an attorney in Virginia Beach, Virginia, working with, of course, and owning Rack Law P.C. here, where I practice in advanced estate planning, estate and trust administration estate and gift tax compliance, elder law and fiduciary litigation. Just for a little quick background, I was a English major graduate of James Madison University, went to University of Richmond, T.C. Williams School of Law, and I acquired a master's in tax law from in Taxation from College of William and Mary Marshall School of Law, been practicing for just about 35 years now and have had the opportunity to lecture frequently on professional ethics matters. It's kind of one of my favorite areas, I suppose. So I wanted to share some perspectives with you all today on conflicts, confidentiality and the implications of the the client who is under an incapacity or an impairment depending upon which rules you you observe. I'm going to be talking primarily from the context of the ABA, rules of professional ethics and the commentary thereby. So we will have a national perspective as opposed to individual tax rules under the state bar guidelines. Um, some of the rules that we'll be covering, of course, are the main rule is rule 1.14, which defines ethical obligations to the impaired client. Um, and again, under the rules, the impaired client being a Virginia rule, which is from Winscombe. But the, the rule is referencing diminished capacity. So clients with diminished capacity, how do we deal with them? How do we work with the issues that arise? How do we detect client impairment? And what are the legal and ethical standards for incapacity? All right. So the rule 1.14, and then there are comments that are included on the in the model rule. Those comments flesh out a lot of the practical issues and details to to apply in certain circumstances and to try to provide guidance for counsel in those thorny issues. We're also going to talk about the legal versus the ethical standards for incapacity and the legal side actually. Well, they both really cover medical standards as well, the definitions. So we'll look into how those might be resources for counsel. In Rule 1.14. There are references and call the integration here of some of the key ethics rules on client communications, confidentiality of client information, avoidance of the conflicts of interest that can arise, and then how to handle special issues with respect to terminating representation where a client is under an impairment. We hope the client capacity would never come into question. But of course it does, and it will with our burgeoning senior population. The medical community, thank goodness, are keeping us alive longer. But the result of that is that there are opportunities, unfortunately, for different incapacities or impairments to arise, and we have to be able to recognize those issues because client incapacity, as we'll talk about today, imposes serious ethical obligations upon us. Now the familiar core tenets of the ABA model, rules of professional conduct, bearing on the attorney client relationship upon which those rules of professional ethics in most states are based mandate prompt and effective client communication. Protection of confidentiality of client information and avoidance of conflicts of interest in the representation. Those are fairly well established rules. And there's not there may be difficulties, but there's no conflict there when the question isn't exacerbated by incapacity or impairment of our client. We all know that the principles underlying underlying the rules of professional ethics establish a sacred bond between attorneys and clients, some of which can last for years without any of the complications we're about to cover. Of course, when the client's ability to make informed decisions is impaired due to dementia and or other mental condition, the ethical challenges can be difficult, but they should be resolved by consulting with the rules and the comments. Um, little typo there. So it should read rules and comments as they provide guidance for the ethical solutions to those challenges. Um, and as a side note, there are also volumes of legal and practical resources that have been published on ethics of incapacitated folks. There are many within the elder law community in particular, and we'll get to some of those later on. So how do we detect diminished capacity? We're not physicians. We're not nurse practitioners. Well, some of us may be, but the general concept is that, no, we are lawyers. We are skilled at observing and listening and interpreting information coming to us from particularly our clients. Um, and perhaps I should have used the word should be able to council, should be able to identify signs of diminished capacity caused by mental disorders in an existing client. Now, maybe 5 or 10 years later, but we should be able to tell there's something not quite right. Okay, so the focused observation of the client behavior during the consultation. Um, that's clearly the first order of observation and information. There might be diagnostic information shared by the client's spouse or family members. Sometimes it's before the meeting is set. We'll we'll hear from the family member setting the appointment that the client, the former existing client of yours, has been diagnosed with early stages of Alzheimer's, for example, or a Parkinson's or some has had a stroke and need to make some changes in their estate plan, for example. Um, and then of course, there are the medical or psychological evaluation reports that are actually given to counsel, which clearly don't involve our own observation. But as we read them, we come to the information that we need to have to make the proper ethical decisions with respect to the protecting the client's rights. So the Commission on Law and Aging published the ABA Handbook for Lawyers. Now it's several years ago. The site is at the end of the outline as an assist for the assessment of clients with capacity issues and identifies some of the red flags that you'll see or may see that could indicate problems with capacity of the client, which alerts counsel to the cognitive, emotional or behavioral signs, which could include memory loss, problems with communication, perhaps verbalizing the client thoughts they're having difficulty with expressing what it is that they want to change. Lack of mental flexibility, diminished cognitive activity can't keep up with the conversation as between you and the family members, for example. Um, there are calculation problems that you might see where they'll be talking about their assets in the context of estate planning and literally things don't add up. And so those observations should key in your ethical obligation to protect the client's interest, as we'll see in a moment. Disorientation, obviously, is something that would probably be much more apparent during the conference. So there are two different maybe 3 or 4 different standards of capacity. And the legal ones are to be distinguished from the threshold capacity required for the ethics side. All right. So the threshold capacity for specific legal transactions in order for those transactions to be deemed valid could include testamentary capacity to execute a will or trust. And we know from our don't know, law school class and cases since then that testamentary capacity has some specific requirements and they are probably the least onerous of those capacity thresholds to pass. Now, capacity to grant or revoke a power of attorney. Many folks don't realize that that's also the same capacity required to enter into a valid contract or to manage one's finances. So the threshold for power of attorney is higher than that to execute a will. It doesn't seem to make logical sense, but that's the law and the lack of capacity for appointment of or requiring an appointment of a guardian and or conservator. Again, those come from medical evaluation reports in the end. But it is important for us to know the that that's the capacity required and it's a specific level under the legal system. Now, defining the condition of any given client is complicated by the multiplicity of terms and definitions used in weather, federal and state statutes. The federal might be in connection with Medicaid eligibility. The case law, of course, discusses capacity in each state and administrative regulations. Then you have the health care in that setting, which includes evaluations used in the legal setting and the rules governing professional ethics. And of course, that's our focus today. I mean, consider this brief list of related but not identical terms. So these are used interchangeably many times, and others they specifically focus on one. For example, the ABA model rules discuss these ethical obligations in the context of diminished capacity. There is also a generic incapacity that's used throughout. But as I mentioned earlier, the Virginia bar uses in 1.14, the rule one, .14 uses the phrase clients under impairment. And then of course, just generally dementia, as we know, there can be multiple perspectives there. It could be senile dementia, it could be multi-infarct, dementia could be dementia of the Alzheimer's type, to name a few. Um, and then just generally disability, which as I noted earlier, was the, the phrase used by the ABA when those, when the, the 1.14 rule came out to begin with. But they have changed that from disability obviously to incapacity to diminished capacity. So. And of course, the didn't include this phrase because it is typically out of favor. But many in the public will decry the fact that someone is trying to be declared incompetent. But that phrase is not only is it out of favor, but it it really is It it denies the fact that there is a spectrum of capacity that all of these phrases seem to acknowledge for legal or ethical purposes. In the course of observing a new client. Of course. Now, these are again, this is a little bit different because the focus of the rule is that you have a client under an impairment or a client who has diminished capacity. But if you're observing a new client, you may be faced with determining whether certain behavior is due to one of the illnesses and conditions which mentioned above and which cause diminished capacity or perhaps just their personality type. There might be a client with a severe anxiety or some other unwillingness perhaps to share information. Those types of things. And it could be, of course, more serious, such as Alzheimer's disease, Parkinson's, cardiovascular events that will have been had. It's rare, but we hear of the Lewy body syndrome that we have experienced clients who develop that. Substance abuse could be drugs or alcohol or a combination, could be vitamin deficiencies or even malnutrition. And then, of course, the the classic senility could be the causes of the dementia. Okay. So clearly, it isn't the role of counsel here to make a diagnosis of the cause of a client's perceived incapacity. It might be tempting to do so, but if we have information through the family or through the medical community, then we have that to depend upon. And it is essential to develop sufficient knowledge for us as to the more common medical conditions in order to facilitate a preliminary determination as to the source and level of impairment. And once we make that determination, or given that determination, it enables us to act in compliance with the rules to protect the interests of the client with more confidence. So the ABA model rules of professional conduct were revised in 2002 to supplement model rule 1.14, which, as I've noted, is now entitled Client with diminished capacity. And that's the one that we'll be focusing on today with the supplemental rules that are integrated into this discussion. And I think I mentioned earlier that I had previously mentioned, which I had not that the ABA model Rule 1.14 actually came into play in 1983 under the clients under a disability title. So sorry if you were looking for that reference. But so in 2002 they modified it to supplement the 1.14, changing the title and then it added language to acknowledge the challenges of the assessment function of the attorney. This is really just sort of saying to us that we know this is not something that we are trained and equipped to do, but the assessment function is there. And then once we make an assessment of the capacity as best we can using our input, then it suggests that a duty exists to make informal capacity judgments in certain cases. And again, that's where we're we're leading until we that's where we work, until we have something more formalized. And then it provides guidance. 1.14 provides guidance for the attorney who reasonably believes that a client has diminished capacity and therefore cannot act in his or her own interest. And there are some we'll be going back to the reasonably believes phrase during this discussion. In fact, there it is. The next slide is model rule ABA model Rule 1.14 provides a framework for making The determination of the first is a reasonable belief that diminished capacity exists. The second is the extent of counsel's obligation to maintain a normal client lawyer relationship. And then having done that, the attorney will have essentially we'll have the goal of maintaining that normal client lawyer relationship through communications and decision making and so forth. The next is that the attorney will have the discretion to take reasonably necessary protective action. All right. And that's that's a bit of an expansion of the the ethical role of counsel. And then thirdly, the discretion to reveal confidential information to the extent necessary to protect the client's interests. So these are the the core tenets of 1.14 by telling us that here's the goal you need to maintain a normal client lawyer relationship as long as the level of diminishment of capacity allows you to do that. And then you do have the discretion to take reasonably necessary protective action for the client. And if you need to do so in that context to reveal confidential information, but only to the extent necessary to protect the client's interests. Here's the actual rule. These are sections A, B, and C, just so that we can reference the language rather than my summaries. So when the client's capacity to make adequately considered decisions in connection with a representation is diminished, then the lawyer shall, as far as reasonably possible, maintain a normal client lawyer relationship with the client. Now, it might seem that that's a hard rule to violate somehow, but but this is really just for setting goal purposes. And as long as you maintain that normal client lawyer relationship with your existing client, it leads to your obligations and enables you to move into the other segments here of the rule. So B under 1.14 states that when a lawyer reasonably believes that the client has diminished capacity is at risk of substantial physical, financial or other harm unless action is taken. And cannot adequately act in the client's own interest. The lawyer may take reasonably necessary protective actions. So this is the B section. Assuming you've got that normal attorney client relationship and communication going on, but you reasonably believe that there is a diminished capacity that puts the client at risk, then you may take reasonably necessary protective action. Like what? Well, including consulting with individuals or entities or agencies perhaps, that have the ability to take action to protect the client that might be a family member or a fiduciary. It might be adult protective services. If it goes to that level. And in appropriate cases, you can seek the appointment of a guardian ad litem or even the appointment of a conservator or guardian for that person to protect their interests. On a more formal basis. Information relating to the representation of a client with diminished capacity is protected by a rule 1.68. So we'll get to that in a moment. But when taking protective action pursuant to paragraph B, the lawyer is impliedly authorized to make disclosures. Under rule 1.6 A It actually has a reference back to 1.14. In that confidentiality rule to reveal information about the client. But only to the extent reasonably necessary to protect the clients interests. And I think there are a couple of focuses here. Again, the rule 1.1, 1.6, as I mentioned, is to the preservation of confidentiality. And we'll talk about that in a moment. And the protective action is defined, at least initially, to provide for the appointment of guardians and so forth, but only to the extent reasonably necessary to protect the clients interests. That, of course, is the revelation of information about the client's condition, different things that may have happened that might otherwise be deemed to be a violation of the rule about attorney client confidences. Right under the ABA model rule. Of course, if you are looking at it or do go to it, there are comments one through ten as I noted earlier, and the comments are specific descriptions of some of the concepts that would give you some clarity and actual guidance as to the scope of the obligations that are anticipated or expected of us as counsel for someone under diminished capacity, Right. The normalcy requirement, the one is, as you are anticipating, it's anticipated you should maintain a normal lawyer client relationship. It's based on the assumption that the client, when properly advised and assisted, is capable of making their own decisions on important matters. And I suppose even in under some very severe matters of impairment, you will still find a client who's very certain about what they want to do and what their decision is, and that places you in a difficult spot. But then you rely on the one that talks about being reasonably able to taking reasonable steps to protect their interests. So there's a distinction made here between a severely incapacitated person who may have no power to make legally binding decisions and the person with diminished capacity who, as we've stated, has often has the ability to understand, deliberate upon and reach conclusions about matters affecting their own well-being. And that of those bits of information understanding should come from counsel. Given that the normalcy is is being maintained appropriately. Comment One also recognizes that some persons of advanced age can be quite capable of handling routine financial matters while needing special legal protection concerning major transactions and will, just as a matter of the olden days, it used to be that advanced age was considered one of the findings that a court could make in determining that somebody needed a conservator or guardian. It didn't mention anything about the capacity question or the cognitive abilities. It just says, Well, if they're of advanced age, then you can go ahead and appoint a senior think, Well, I don't know whether it was the AARP or just generally society said, no, that can't be used as a standard because you can have a 90 year old who is quite brilliant and memory is fine and cognitive abilities are fine. So we all comment when recognizes that age is not to be considered. I suppose this would be one place for a quick war story. I do remember some time ago when I had an elder client who was brought in by a by a this her son, and we focused on the claim. The elder person tried to communicate and keep eye contact with her during the discussions and make sure that she felt like she was keeping up with things. And at the end of the interview, as we were leaving, the son pulled me aside and said, I want to thank you for giving my mother the dignity of treating her as the client and not looking at me to see what I wanted. And so that was appreciated and that stayed with me. And I've tried to do that ever since then. Um, but that's the attention and respect, despite the fact that there was some impairment there. Comment two also provides that the attorney should, as far as possible, accord the impaired person the status of a client, even if that person has a legal representative, of course. So even had that son in my example come in and said my mom's power of attorney talk to me. Um, we, you know, we're still I still would have given that client the the treatment, the status as our client because as we'll see, the power of attorney relationship doesn't make that person the client. The agent is just the agent for the client. Comments five, six and seven to rule 1.14. Set forth some more guidance for the lawyer about, in this case, the protective measures deemed necessary when the attorney again reasonably believes that a client is at risk of substantial physical, financial or other harm. And that a normal client lawyer relationship cannot be maintained as provided under 1.14 A. All right. Comment five in particular goes on to list multiple alternatives for such measures and provides factors for consideration by Council in taking such action, such as the client's values and wishes, best interests and family and social connections. And of course, these bits of information are going to be drawn from your previous client relationship, right? The former client who is now diminished. So you may have had meetings or events or tasks or trials even through the years in which you gain knowledge of these factors. And those can and should be applied under 1.1 for comment five to factor in for consideration of what kinds of measures might be alternatives to resolving the issues. Consider implementing the consultation procedures recommended in the ABA Handbook for lawyers. This is the one noted above where the the ABA has gone through. They have actually provided, I believe, there's a checklist of interview questions and observations that you can make and establish a record of things that perhaps would find its way into the client file as a memorandum about your observations, about the diminished capacity, if that's what you're seeing. Um, the consultation procedure could include beginning the interview with the small talk, catching up on family developments and news. How are the grandchildren? Current events. Stay away from politics and sometimes sports depending on the client. Um, but there may be some anxiety about coming in to see you knowing that you know them, they know you, and there might be some embarrassment or anxiety about that communication. So be aware of that. But then if the client is accompanied, assuming it's not like the the attentive son that I had, I've had the others, believe me, you need to meet alone with the client to assess the client understanding of the legal matter that they're there for. Why are you here? What is it that you want us to help you with as your counsel? Um, determine whether undue influence is being exerted. Um. I had a very different son one time who came in and said. I would, like, know. Mom would like you to change her will so that it leaves everything to me because I'm taking care of her. And while I thought that was nice, that didn't sound like what I recalled with this particular client. She had three children. And so excusing the son and by telling him I needed to do this as a matter of course, because if the will was going to be deemed to be valid, there needed to be a time when I could say that there wasn't a son in the room, you know, causing that pressure, the undue influence. And as it turned out, that's not what the the mother wanted. My client said no, He he tells me he's going to leave me alone to live in the house. And I can't have that. I need somebody to help me. I can't afford the in-home care. So he was obviously exerting his undue influence in hoping to get the entire inheritance. So the will was not done the way he wanted, of course. Um, and then number three, preserve the attorney client privilege as to critical communications and advice. So meeting alone with the client will give you your assessment, the ability to to make sure that the client understands the matter, to find out whether any undue influence is being exerted, and then preserve the attorney client privilege by meeting with the client alone. As to those critical communications, your advice and their response, their intentions for what you would do to help them. And then. Emphasize the confidentiality of the discussions in case the client is concerned, they will be shared with family members or the caregiver. In my example, I had to assure the client that I wasn't going to disclose to the son what we had discussed and that she wasn't going to do what he wanted. And post-meeting. Of course, we made other arrangements for her care involving other family members, so she was taken care of. But believe me, I did consult rule 1.14 during the course of those discussions. All right. Now for the disclosure of client's condition. Um, model rule 1.14, as I mentioned, does cover these issues for us. And they are, of course referenced other rules that the rule references the other rules regarding confidentiality, but in particular disclosure of the condition. Um, the disability disclosures could adversely affect the client's interests. Uh, excuse me. For example, an involuntary commitment proceeding. So by disclosing those, the condition could then turn into something that was not wanted. So we have to consider that and recognizing the complexity of these unavoidable circumstances. Of course, the model rules graciously permit counsel to seek guidance from an appropriate diagnostician as to the client's capacity to make adequately considered decisions. This is found in comment 8 to 1.14, and very often that's going to be the client's general practitioner or what do they call them now? Pcp, or perhaps there's a neurologist or a neuropsychologist or someone else involved who would be able to opine as to the capacity to make adequately considered decisions. And then working with that information, you can work to protect the client's interest without any more disclosure than is necessary. In an interesting ethics informal opinion, the attorney in a in that case was allowed to disclose information regarding client's aberrational behavior to a physician in order to obtain the expert advice. You know, despite the confidentiality rules, this was deemed to be reasonable under the circumstances and certainly within the ethical guidelines. And I'll just note this on the side, the ABA does have that ethics informal opinion category and opining about certain things. When you if somebody were to inquire about the effect of the the rule in a certain set of circumstances, they can not always, but they can issue an informal opinion based on the inquiries. And of course your state bar would be the better place to start with that. Because you'll have the actual rules and comments and issues under the rules that do apply to you. Um. Okay. 1.14 Again in the comments, incorporate in and integrate the terms and considerations under the separate rules and comments which pertain to communications. That being 1.14 or 1.4. Sorry. Confidentiality of information, rule 1.6 and conflicts of interest that can be created. And that's governed by rule 1.7. So obviously we need to be familiar with the provisions of the cornerstones of professional ethics and the attorney client relationship. And they are they are matters that we typically will, um, will deal with whether or not there is a capacity question. Um, so they should be familiar, but we'll talk about how they're built into these evaluations when a client has diminished capacity. So as a quick review, then 1.4 says a lawyer shall promptly inform the client of any decision or circumstance with respect to which the client's information informed consent is required by these rules. There's a lot of stuff in between, but there's your ellipses or savers. Um. The lawyer shall reasonably consult with the client about the means by which the client's objectives are to be accomplished and keep the client reasonably informed about the status of the matter and so forth. Um, a lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation. Okay. And these would seem to be basic and they frankly are. But at the same time, very often that becomes more difficult where the client impairment is an issue. But this is basically the one that simply says inform the client of decisions or circumstances, results of hearings and rulings and developments in the case. That's all this really is. Um, but then the client needs to be able to make the informed decision as a result of that communication. Comment one to Rule 1.4 says that reasonable communication between the lawyer and client is necessary for the client effectively to participate in the representation and then down in comment six where the client suffers from diminished capacity, which is the integration here, making it impracticable to fully inform the client, the attorney should consult the pertinent pertinent provisions of rule 1.14 and of course that's what we have discussed previously about those communications. To whom do you make them? You maintain the normal client attorney client relationship. You use the resources available and informed consent for sharing communications with a third party who has the best interests of your client in mind. Uh, given the obligation to convey information to and consult with the client, the withholding of information from the client would seem to be a violation of the rule. However, comment seven indicates within the 1.4 comment seven says it may be permissible for counsel to delay transmission of information if the client is likely to react imprudently to an immediate communication. So where there's an impairment, a diminished capacity that could involve an imprudent reaction to the news that you're about to impart, then counsel is not required to immediately convey that information and perhaps to find a better way to make the news known to the client so that there isn't a not best interest kind of a result as a as a result of the disclosure. All right. The commentary to 1.4 also suggests that withholding a psychiatric diagnosis from a client might be permissible when the examining psychiatrist indicates that disclosure would harm the client. Of course, that's the best place to determine that. You don't have to make the assessment yourself. If the physician contacts you with the results of the evaluation you've requested and says the probably do not want to convey this to the client. If that would harm them, then withholding that information from the client would be an exception to the communications rule. Oh, sorry. Okay, so the next see conflicts and communications and capacity. The next is the confidentiality. 1.6 is the model rule, and we're all pretty familiar with these. I would hope the primary is a lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent. The disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted under paragraph B, which then provides that if it's necessary to disclose the information, if the lawyer reasonably believes it to be necessary to prevent reasonably certain death or substantial bodily harm to the client, or to secure legal advice about the lawyer's compliance with these rules. And then C of course, goes on to say that a lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of or unauthorized access to information relating to the representation of a client. And that rule, of course, is covers a lot of ground these days. It used to be just make sure your staff and your paralegals do not communicate information to third parties who might call to find out about the client's condition or documents or status. But it also now involves the cybersecurity issues, the emails or text messages or access to those communications. And so you have to prevent the work to prevent the inadvertent or unauthorized disclosure under those settings. Now, again, if you have a client who's under an impairment, they may or may not be using emails or text messages, but it could be that third parties would be in your communications with those third parties may disclose something you shouldn't. So always refer back to the exceptions there under B if you have to find a way to get that information out. So again, confidentiality is one of the most sacred principles of the client lawyer relationship. It's the obligation of the attorney to protect the confidentiality of client information relating to the representation. And the purpose of this principle, as we all know, is to encourage open communications. Everyone knows about it. They talk about it in movies and in cocktail parties and so forth about disclosures without informed consent. So people know that when they talk to their lawyer. I think it was Tom Cruise in the movie The Firm, where he said, you know, I will go to my grave with the information that you've given to me because it's protected by the communication. And he said this to guys in organized crime, so it must be true. However, the diminished capacity of the client presents special challenges for counsel under Rule 1.6 for the confidentiality, and some of which are addressed under 1.14. As we've seen previously. But there is a reference in an integration here again under 1.6. Comment five B acknowledges that compliance with this rule of complete confidentiality also might include fulfilling duties under rule 1.14 regarding a client with an impairment. And that reference, of course, is to comments six and eight under rule 1.14, where its attorneys are authorized, where a client I'm sorry, the lawyer who reasonably appears to have. Yes, we often do. The lawyer for a client who reasonably appears to have diminished capacity to take protective action, They can take protective action, including the disclosure of otherwise confidential information, to consult with diagnosticians regarding the client's condition or to initiate guardianship or other protective proceedings, or both. Again, so there there is a place where the client's condition, the confidential information may be disclosed. It's otherwise confidential information in order to consult with the physicians for your client. To determine what, if any, protective measures might need to be taken. Um. And you'll recall we spoke earlier that at one point, one four see, the third bracket of the rule confirms that information pertaining to the representation of a client with diminished capacity is protected by rule one, point one, 1.6. But of course, the integration provisions here allow for the the appropriate disclosure for protective action, because then what Rule 1.6 A is invoked for the implied authorization to reveal confidential information, but again, only to the extent necessary to protect the client's interest. And the good thing is when you look up these rules, you will see that integration and cross referencing so that you can make the appropriate decision based on the facts presented to you within the rules. Okay. The third see confident conflict of interest. Sorry. 1.7 is model rule 1.7 states that except as provided in the next paragraph, a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. These things often arise in the context of elder law, less so in estate planning, very often the business context and of course in litigation. Can you represent two or 3 or 4 of us? Those are the questions that may arise. And it's complicated by incapacity of one or more of them or your current client, always a client who now is impaired and others want to come in and join in the fray. So these are except as provided in paragraph B, it's pretty much a no to the current concurrent conflict of interest representation. So that exists if the representation of one client will be directly adverse to another client. Um, and think the directly adverse is one of the issues that council will focus on as to whether or not a conflict exists or if there is significant risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities either to another client, a former client or a third person, or frankly, by a personal interest of the lawyer. So if there's a significant risk that the representation of more than the one client will be materially limited by ethical responsibilities, then that would be no. Okay. Now, paragraph B notwithstanding the incurring conflict of interest under A, the lawyer may represent a client. If the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client, which of course is the flip side of what we just read in a, The representation is not prohibited by law. The representation does not involve the assertion of a claim by one client against another represented by the lawyer in the same litigation or other proceeding before a tribunal. Those things should be fairly apparent, but it needs to be stated in the rule and each affected client gives informed consent confirmed in writing, and everybody's malpractice carrier would appreciate that. The written consent. So if you have the informed consent that works to address these potential issues with a concurrent conflict of interest. But again, it changes the analysis changes when you have the diminished capacity, the impairment, and it is not uncommon in particular, I know from my private practice to be consulted by multiple family members have already given you some a little mini war story or two on that seeking counsel on any manner of legal issues, but in particular for my case as the in the estate planning and elder law practice areas, we saw a lot more of this before the Deficit Reduction Act in the 2005 2006 time frame. But there were many issues which involved asset transfers and strategies for spending down people's resources in order to qualify sooner than later for Medicaid payment of long term care expenses. And so those transfers involved well, moving them to someone other than the client. And so the spend down strategies might be to the second spouse or to children of a first marriage. And those folks always wanted to be involved in the process, which of course it can can complicated the arrangements, decisions about who would be the fiduciaries under a will or a living trust. And the withdrawals from IRAs, which have a beneficiary designation, often also presented issues for advice, and the answers are and were likely to affect parties very differently. And notice we haven't said clients there because they weren't clients but felt like they should be think so. Those are issues that can come up in the conflicts area. And again, it's critical to determine the identity of the client, which of course is easier if that person has been your client and they've come in under new circumstances. And then to clarify the role of counsel to all concerned at the initial consultation, those are challenging meetings, as you can imagine, where you have a surviving spouse and then children of different relationships or perhaps the in-law who wants to be involved. And so the communications and the identity of the client needs to be clarified, and the limitations on what can be communicated should also be stressed during that meeting. Um, now under the conflict of interest rubric, again, if more than one party is to be represented as a client, then consultation and consent must be had before a second party may be accepted as a client. And of course that's the consultation with your original client and then bringing in the other party and say, Well, here's the arrangements under which we can represent you. Is that satisfactory? My current client consents and then we get the writing. And of course, elder law attorneys and others are often confronted with a client who cannot provide informed consent anymore in order to resolve the conflict of interest. Now, assuming informed consent is obtained, the attorney must continually maintain and exercise independent professional judgment with respect to each client. If you cannot secure the the acceptance, the informed consent, then it then you have to really rely on the 1.14 matters where the capacity of the client, the diminished capacity of the client is taken into account and you can take action from that standpoint for the protective action you should take. Um, there was an interesting development, a case that I often mention at the elder law programs. The programs do in Virginia where and this sort of applies across the board, it was based on the bar rules, the ethics rules in Virginia. But since Virginia based its new rules on the the model rules, with some exceptions to the comments which were not adopted by Virginia to 1.14. The the rules themselves, as well as the ones we just noted, the integrated five, six and seven. Well, they're in there under this to the 1.151617. All right. So here's the case. Um, in the Virginia state bar legal ethics opinion, we call them Leo's 1769, the bar committee explored the interaction of Rule 1.17, dealing with conflicts with rule 1.14 in the context of a petition for conservatorship that the daughter of a former but now impaired client was requesting be prepared and filed so that she could then become the conservator for her mother. You're now impaired former client. Well, the bar committee found insurmountable problems, ethical problems with the proposed representation under the conflicts rules. And that was because the committee held an attorney could not permissibly file a pleading for a third party alleging that his client is incompetent. That's what the rule stated at the time. But incapacitated is now the standard in the guardianship. Um, and then argue also that his client could validly consent to concurrent representation as required by 1.7. So you see how that inability to give impaired consent or I'm sorry, informed consent would would leave the conflict in place. Okay. And of course, the result of the petition would likely be adverse to her. Now, the the bar was looking at it rather than from a health care and financial management perspective. They were simply looking at it from the standpoint of the attorney who represented the mother could not be the one. To file the pleading. It wouldn't. They certainly weren't saying that the daughter couldn't find counsel to do that on her own. And interestingly, the committee opined that while 1.14 B would allow the attorney himself to petition for guardianship as a protective action, he was prohibited by the conflicts of interest rules from representing a third party in that petition so he could actually appoint himself as one of those reasonably reasonable, reasonably protective actions under 1.14. But and of course, the the legal opinion never did say what happened in the end. Maybe we'll have to look for that epilogue one day. But but that sometimes is a surprise to folks because they feel like, well, by doing the petition, you're taking protective action. But the conflict rules say can't do it. All right. Model rule 1.8 F, these are some of the prohibited transactions which are affected by the incapacity question. A lawyer shall not accept compensation for representing a client from one other than the client unless the client gives informed consent, which again can be an issue in case of a diminished capacity. Um, and unless there's no interference with the lawyers, independence of professional judgment or with the client lawyer relationship and information relating to representation of a client is protected as required by rule 1.6. Now, this may seem obvious, but, you know, when you look at some of the situations that come up in either elder law or estate planning and perhaps even in the litigation context, family law and so forth, um, when we have a client who whose child brings them in and says, mom wants to do a living trust, I'm going to go ahead and pay the fee for her. Um, that can't mean that the child has the access to it. Have they earned the access to information? Answer Definitely no. And the client who pays that bill may very well feel themselves entitled to knowing what's going on or how the draft is coming or what what it's going to say. And am I the trustee? Unless the mother wants you to do it, then you can't. And of course, you may be thinking too, well, if they don't have capacity to sign the documents, then we are. They also can't give informed consent. So is there a document to be had? Um, but just thinking in terms of the a a general client who has the ability to give informed consent, wants to prepare the documents, but child's paying for it. Just know that you can rely on this rule to tell the child, no, we we can't give you the information just because you paid for it. That's prohibited transaction. I'm come at 15 allows that informed consent of the client in writing to third party payment of the legal fee may be sufficient but cautions that if a conflict is created, the lawyer must comply with 1.7. And so again, the informed consent comes up. The your carriers would love it if you did get that in writing. So if the client consents to that payment by Sun may be sufficient, that would be the place, of course, to say that the confidences will still not be shared just because of the payment of the fee. The American College of Trust and Estates Counsel has some commentaries on this rule that echo the concept that notwithstanding a source of payment of the fee, the person. For him, services are performed is the client and that's the person whose confidences must be safeguarded and whose instructions to counsel must prevail. All right. So long as client capacity is not an ethical issue, the attorney client relationship may be terminated by either party at any time. Right. That's happens every day. Rule 1.161 provides that a lawyer shall withdraw from representation of a client if the representation will result in a violation of the rules of professional conduct or other law. So that's going to imply implicate all of the other rules we've just talked about dealing with confidentiality, conflicts of interest and so forth. So it may very well be that the bottom line is just there's no other opportunity about withdrawal. And then B one provides that a lawyer may withdraw from representing a client. A withdrawal can be accomplished without material adverse effect on the interests of the client. Um, now. In accordance with the theme here about diminished capacity clients, um, Comment six indicates that if a client has severely diminished capacity, the client may lack the legal capacity to discharge the lawyer. And in any event, the discharge may be seriously adverse to the client's interest. Client wants to fire you, but that's not the best thing for that client. So in this situation, 1.16 does provide for the special effort that should be made by counsel to help the client consider the consequences of the termination, and they may take reasonably necessary protective actions. So we go back to 1.14 to look into those types of actions that could be done, could be taken into account in and implemented in order to protect the client's interests. Where now certainly it's it's never good to be where you're not wanted. But again, the ethical obligation to the client, even in the face of an impending termination by the client, you may try to take that special effort to have the client consider those consequences and work something out that would continue to protect their interests. So in conclusion, the client with diminished capacity as stated under the rules, they may be different in your state, but diminished capacity will present significant ethical challenges. But the place to consult is the rules on professional ethics. If your state doesn't have comments or legal ethics opinions ruling on certain questions that have arisen, then you may wish to contact bar counsel and see if they will give you some guidance. But do you look into the comments in the 1.14 in case of that diminished capacity? That's a fairly extensive set of rules and recommendations and they will protect your interest if you follow them. So once the diminished client capacity is discerned by counsel and using those references and handbooks and so forth, sometimes it's obvious, sometimes it may be better to consult. Sometimes it's good to get the third party opinions. But 1.14 does give you that ability to communicate those concerns and secure some opinion from the medical community or documentation if necessary. And then under the comments, look for comprehensive guidance as necessary to resolve those issues that you've discerned and protecting the client's interests as well as your own. So hope these observations will be helpful to you in your practice day to day and with best wishes. I'll also reference here the published resources on professional ethics so that you will have more specific guidance in each practice area. Looking on into those, you'll see that the annotated model rules of professional conduct are all listed in a very extensive manual, but most of those are also online. The 2021 second edition of the Assessment of Older Adults with Diminished Capacity. This is the handbook for lawyers that was mentioned during the outline, of course, has commentaries on the model rules of professional conduct. Those, of course, mostly focus on estate planning and fiduciary services and administration, but they're very helpful. In the case of the 1.1 for incapacity questions, they arise very often these days. In that context, there was a conference in 1994 on ethical issues and representing older adults at Fordham. That was a special issue of the Fordham Law Review, and it still provides some valid guidance. I can tell you we mentioned the formal opinion 96 404 client under a disability. This is a 1996 ruling. Might be something to update. But but that and you can see that that was under the disability language as opposed to the diminished capacity language Hazard and Hodes have done the law and ethics of lawyering that applies across the board in all the practice areas. And that's a that's an excellent study. And they updated that. You see, the sixth edition as of 17 is the most recent. Gregory French is one of the one of the leading attorneys in the elder law community. And he and the Professional Ethics Committee set up the aspirational standards for the practice of elder law with commentaries. Naila is the group. If you're a member, I highly recommend you try to find those rules on on their online. And the comments are outstanding too. You have to be a member to access those commentaries, but they take the standard ethical rules, the mandatory minimums, let's call them, and then they provide the aspirational standards within the elder law community. So how can we enhance our practice in ways that will also enhance the client experience and under challenging circumstances that we often see in the elder law world? And finally, the restatement third of Law, The Law Governing Lawyers is a 2012 edition from the people and also recommended for consultation. And thank you.

Presenter(s)

KRL
Kevin Rack, LLM
Partner
Rack Law, P.C.

Credit information

Jurisdiction
Credits
Available until
Status
Alabama
    Pending
    Alaska
    • 1.0 ethics
    September 4, 2025 at 11:59PM HST Available
    Arizona
    • 1.0 professional responsibility
    September 4, 2025 at 11:59PM HST Available
    Arkansas
    • 1.0 ethics
    September 4, 2025 at 11:59PM HST Approved
    California
    • 1.0 ethics
    September 4, 2025 at 11:59PM HST Approved
    Colorado
      Pending
      Connecticut
      • 1.0 ethics
      September 4, 2025 at 11:59PM HST Available
      Delaware
        Pending
        District of Columbia
          Not Offered
          Florida
            Pending
            Georgia
            • 1.0 general
            Unavailable
            Guam
            • 1.0 ethics
            September 4, 2025 at 11:59PM HST Available
            Hawaii
            • 1.0 ethics
            September 4, 2025 at 11:59PM HST Approved
            Idaho
              Pending
              Illinois
              • 1.0 professional responsibility
              September 12, 2025 at 11:59PM HST Approved
              Indiana
                Pending
                Iowa
                  Pending
                  Kansas
                    Pending
                    Kentucky
                      Pending
                      Louisiana
                        Pending
                        Maine
                          Pending
                          Maryland
                            Not Offered
                            Massachusetts
                              Not Offered
                              Michigan
                                Not Offered
                                Minnesota
                                  Pending
                                  Mississippi
                                    Pending
                                    Missouri
                                      Pending
                                      Montana
                                        Pending
                                        Nebraska
                                          Pending
                                          Nevada
                                          • 1.0 ethics
                                          Unavailable
                                          New Hampshire
                                          • 1.0 ethics
                                          September 4, 2025 at 11:59PM HST Available
                                          New Jersey
                                          • 1.3 ethics
                                          September 6, 2024 at 11:59PM HST Approved
                                          New Mexico
                                            Pending
                                            New York
                                            • 1.0 ethics
                                            September 4, 2025 at 11:59PM HST Available
                                            North Carolina
                                            • 1.0 ethics
                                            Pending
                                            North Dakota
                                            • 1.0 ethics
                                            September 4, 2025 at 11:59PM HST Approved
                                            Ohio
                                            • 1.0 professional conduct
                                            Unavailable
                                            Oklahoma
                                              Pending
                                              Oregon
                                                Pending
                                                Pennsylvania
                                                • 1.0 ethics
                                                January 16, 2026 at 11:59PM HST Approved
                                                Puerto Rico
                                                  Pending
                                                  Rhode Island
                                                    Pending
                                                    South Carolina
                                                      Pending
                                                      South Dakota
                                                        Not Offered
                                                        Tennessee
                                                        • 1.05 ethics
                                                        September 6, 2024 at 11:59PM HST Approved
                                                        Texas
                                                        • 1.0 ethics
                                                        August 31, 2024 at 11:59PM HST Approved
                                                        Utah
                                                          Pending
                                                          Vermont
                                                          • 1.0 ethics
                                                          September 4, 2025 at 11:59PM HST Available
                                                          Virginia
                                                          • 1.0 ethics
                                                          November 1, 2024 at 11:59PM HST Approved
                                                          Virgin Islands
                                                          • 1.0 ethics
                                                          September 4, 2025 at 11:59PM HST Available
                                                          Washington
                                                            Pending
                                                            West Virginia
                                                              Not Eligible
                                                              Wisconsin
                                                                Not Eligible
                                                                Wyoming
                                                                  Pending
                                                                  Credits
                                                                    Available until
                                                                    Status
                                                                    Pending
                                                                    Credits
                                                                    • 1.0 ethics
                                                                    Available until

                                                                    September 4, 2025 at 11:59PM HST

                                                                    Status
                                                                    Available
                                                                    Credits
                                                                    • 1.0 professional responsibility
                                                                    Available until

                                                                    September 4, 2025 at 11:59PM HST

                                                                    Status
                                                                    Available
                                                                    Credits
                                                                    • 1.0 ethics
                                                                    Available until

                                                                    September 4, 2025 at 11:59PM HST

                                                                    Status
                                                                    Approved
                                                                    Credits
                                                                    • 1.0 ethics
                                                                    Available until

                                                                    September 4, 2025 at 11:59PM HST

                                                                    Status
                                                                    Approved
                                                                    Credits
                                                                      Available until
                                                                      Status
                                                                      Pending
                                                                      Credits
                                                                      • 1.0 ethics
                                                                      Available until

                                                                      September 4, 2025 at 11:59PM HST

                                                                      Status
                                                                      Available
                                                                      Credits
                                                                        Available until
                                                                        Status
                                                                        Pending
                                                                        Credits
                                                                          Available until
                                                                          Status
                                                                          Not Offered
                                                                          Credits
                                                                            Available until
                                                                            Status
                                                                            Pending
                                                                            Credits
                                                                            • 1.0 general
                                                                            Available until
                                                                            Status
                                                                            Unavailable
                                                                            Credits
                                                                            • 1.0 ethics
                                                                            Available until

                                                                            September 4, 2025 at 11:59PM HST

                                                                            Status
                                                                            Available
                                                                            Credits
                                                                            • 1.0 ethics
                                                                            Available until

                                                                            September 4, 2025 at 11:59PM HST

                                                                            Status
                                                                            Approved
                                                                            Credits
                                                                              Available until
                                                                              Status
                                                                              Pending
                                                                              Credits
                                                                              • 1.0 professional responsibility
                                                                              Available until

                                                                              September 12, 2025 at 11:59PM HST

                                                                              Status
                                                                              Approved
                                                                              Credits
                                                                                Available until
                                                                                Status
                                                                                Pending
                                                                                Credits
                                                                                  Available until
                                                                                  Status
                                                                                  Pending
                                                                                  Credits
                                                                                    Available until
                                                                                    Status
                                                                                    Pending
                                                                                    Credits
                                                                                      Available until
                                                                                      Status
                                                                                      Pending
                                                                                      Credits
                                                                                        Available until
                                                                                        Status
                                                                                        Pending
                                                                                        Credits
                                                                                          Available until
                                                                                          Status
                                                                                          Pending
                                                                                          Credits
                                                                                            Available until
                                                                                            Status
                                                                                            Not Offered
                                                                                            Credits
                                                                                              Available until
                                                                                              Status
                                                                                              Not Offered
                                                                                              Credits
                                                                                                Available until
                                                                                                Status
                                                                                                Not Offered
                                                                                                Credits
                                                                                                  Available until
                                                                                                  Status
                                                                                                  Pending
                                                                                                  Credits
                                                                                                    Available until
                                                                                                    Status
                                                                                                    Pending
                                                                                                    Credits
                                                                                                      Available until
                                                                                                      Status
                                                                                                      Pending
                                                                                                      Credits
                                                                                                        Available until
                                                                                                        Status
                                                                                                        Pending
                                                                                                        Credits
                                                                                                          Available until
                                                                                                          Status
                                                                                                          Pending
                                                                                                          Credits
                                                                                                          • 1.0 ethics
                                                                                                          Available until
                                                                                                          Status
                                                                                                          Unavailable
                                                                                                          Credits
                                                                                                          • 1.0 ethics
                                                                                                          Available until

                                                                                                          September 4, 2025 at 11:59PM HST

                                                                                                          Status
                                                                                                          Available
                                                                                                          Credits
                                                                                                          • 1.3 ethics
                                                                                                          Available until

                                                                                                          September 6, 2024 at 11:59PM HST

                                                                                                          Status
                                                                                                          Approved
                                                                                                          Credits
                                                                                                            Available until
                                                                                                            Status
                                                                                                            Pending
                                                                                                            Credits
                                                                                                            • 1.0 ethics
                                                                                                            Available until

                                                                                                            September 4, 2025 at 11:59PM HST

                                                                                                            Status
                                                                                                            Available
                                                                                                            Credits
                                                                                                            • 1.0 ethics
                                                                                                            Available until
                                                                                                            Status
                                                                                                            Pending
                                                                                                            Credits
                                                                                                            • 1.0 ethics
                                                                                                            Available until

                                                                                                            September 4, 2025 at 11:59PM HST

                                                                                                            Status
                                                                                                            Approved
                                                                                                            Credits
                                                                                                            • 1.0 professional conduct
                                                                                                            Available until
                                                                                                            Status
                                                                                                            Unavailable
                                                                                                            Credits
                                                                                                              Available until
                                                                                                              Status
                                                                                                              Pending
                                                                                                              Credits
                                                                                                                Available until
                                                                                                                Status
                                                                                                                Pending
                                                                                                                Credits
                                                                                                                • 1.0 ethics
                                                                                                                Available until

                                                                                                                January 16, 2026 at 11:59PM HST

                                                                                                                Status
                                                                                                                Approved
                                                                                                                Credits
                                                                                                                  Available until
                                                                                                                  Status
                                                                                                                  Pending
                                                                                                                  Credits
                                                                                                                    Available until
                                                                                                                    Status
                                                                                                                    Pending
                                                                                                                    Credits
                                                                                                                      Available until
                                                                                                                      Status
                                                                                                                      Pending
                                                                                                                      Credits
                                                                                                                        Available until
                                                                                                                        Status
                                                                                                                        Not Offered
                                                                                                                        Credits
                                                                                                                        • 1.05 ethics
                                                                                                                        Available until

                                                                                                                        September 6, 2024 at 11:59PM HST

                                                                                                                        Status
                                                                                                                        Approved
                                                                                                                        Credits
                                                                                                                        • 1.0 ethics
                                                                                                                        Available until

                                                                                                                        August 31, 2024 at 11:59PM HST

                                                                                                                        Status
                                                                                                                        Approved
                                                                                                                        Credits
                                                                                                                          Available until
                                                                                                                          Status
                                                                                                                          Pending
                                                                                                                          Credits
                                                                                                                          • 1.0 ethics
                                                                                                                          Available until

                                                                                                                          September 4, 2025 at 11:59PM HST

                                                                                                                          Status
                                                                                                                          Available
                                                                                                                          Credits
                                                                                                                          • 1.0 ethics
                                                                                                                          Available until

                                                                                                                          November 1, 2024 at 11:59PM HST

                                                                                                                          Status
                                                                                                                          Approved
                                                                                                                          Credits
                                                                                                                          • 1.0 ethics
                                                                                                                          Available until

                                                                                                                          September 4, 2025 at 11:59PM HST

                                                                                                                          Status
                                                                                                                          Available
                                                                                                                          Credits
                                                                                                                            Available until
                                                                                                                            Status
                                                                                                                            Pending
                                                                                                                            Credits
                                                                                                                              Available until
                                                                                                                              Status
                                                                                                                              Not Eligible
                                                                                                                              Credits
                                                                                                                                Available until
                                                                                                                                Status
                                                                                                                                Not Eligible
                                                                                                                                Credits
                                                                                                                                  Available until
                                                                                                                                  Status
                                                                                                                                  Pending

                                                                                                                                  Become a Quimbee CLE presenter

                                                                                                                                  Quimbee partners with top attorneys nationwide. We offer course stipends, an in-house production team, and an unparalleled presenter experience. Apply to teach and show us what you've got.

                                                                                                                                  Become a Quimbee CLE presenter image