January 2017 Bar Bulletin
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January 2017 Bar Bulletin

Ethics Refresher: Communicating
with Clients with Diminished Capacity

By Sherry Bosse Lueders


RPC 1.14 addresses our responsibilities as attorneys when communicating with clients with diminished capacity. A threshold issue in identifying whether a potential client — or a current client — has diminished capacity is what, exactly, it means for a person to have diminished capacity.

While the RPCs do not define the terms “diminished capacity” or “incapacitated,” RPC 1.14(a) does identify three circumstances in which there is an increased potential for a person’s decision-
making ability to be “diminished:” 1) minority; 2) mental impairment; and 3) “some other reason.”

Practitioners seeking guidance as to a legal definition of “mental impairment” might look to Washington’s Uniform Power of Attorney Act, which became effective January 1, and includes the following definition of “incapacity” at RCW § 11.125.020(5):

“Incapacity” means inability of an individual to manage property, business, personal, or healthcare affairs because the individual: (a) Has an impairment in the ability to receive and evaluate information or make or communicate decisions even with the use of technological assistance….

Comment [6] to RPC 1.14 also provides some degree of guidance in evaluating a client’s capacity:

In determining the extent of the client’s diminished capacity, the lawyer should consider and balance such factors as: the client’s ability to articulate reasoning leading to a decision, variability of state of mind and ability to appreciate consequences of a decision; the substantive fairness of a decision; and the consistency of a decision with the known long-term commitments and values of the client. In appropriate circumstances, the lawyer may seek guidance from an appropriate diagnostician.

As with so many other aspects of practicing law, determining whether a client has diminished capacity — as well as the extent to which the capacity is diminished — is a bit of a gray area where guidance is provided in the form of a test that consists of balancing various factors. Unlike the many balancing tests we may encounter in case law, the balancing test in Comment [6] provides that an attorney may, in “appropriate circumstances,” seek guidance from “an appropriate diagnostician.” However, any attorney seeking outside guidance in determining the capacity of a client must be mindful of the obligation to maintain client confidentiality under RPC 1.6.

Mental impairment may or may not be immediately identifiable. Clients who do not appear to have capacity issues, but who, for example, have a brain tumor, are being treated with certain medications or recently experienced a traumatic event, such as a life-altering injury or the sudden death of a child or spouse, may nonetheless display some degree of diminished capacity.

Keeping Clients with Diminished Capacity “Reasonably Informed”

The mere fact that a client has diminished capacity does not abrogate your responsibility to communicate with the client consistent with RPC 1.4, which addresses communications in general. Your obligations under RPC 1.4 to keep a client “reasonably informed” about the status of their matter, to keep a client informed about the substance of their matter, and to explain a matter “to the extent reasonably necessary” to allow a client to make informed decisions apply to all of your clients, including those with diminished capacity.

RPC 1.14(a) directs that a lawyer “shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client.” The comments to RPC 1.14 emphasize that a client with diminished capacity is above all a client and should be treated with attention and respect.

For example, RPC 1.14 Comment [2] states: “The fact that a client suffers a disability does not diminish the lawyer’s obligation to treat the client with attention and respect.” In addition, Comment [5] to RPC 1.4 states: “The client should have sufficient information to participate intelligently in decisions concerning the objectives of the representation and the means by which they are to be pursued, to the extent the client is willing and able to do so.” The duty to keep a client reasonably informed remains paramount, even when the client has diminished capacity.

While the RPCs indicate clients should be provided information appropriate for a “comprehending and responsible adult,” Comment [6] to RPC 1.4 allows that “this standard may be impracticable, for example, where the client is a child or suffers from diminished capacity.”

How does an attorney keep a client with diminished capacity reasonably informed about their case? Comment [1] to RPC 1.14 provides some guidance. It states: “(A) client with diminished capacity often has the ability to understand, deliberate upon, and reach conclusions about matters affecting the client’s own well-being.” Thus, a client with diminished capacity may require a summary of the terms of a proposed settlement agreement presented at their level of understanding, rather than just a request to review the document and respond by a specific deadline. Or the client with diminished capacity may require more frequent communication to remind them of deadlines.

Third-Party Involvement

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