Ethics Opinions

Opinion 05-03

Summary: When a client, because of depression, is unable to cooperate with his lawyer in preparing a divorce matter for trial, the lawyer may enlist the aid of his family and a close friend to persuade the client to cooperate. If cooperation is not forthcoming, the lawyer may have to decide whether the risk to client’s interests from seeking a continuance over client’s objection is greater than the risk of proceeding to trial with an unprepared client.

Facts: Lawyer represents a client in a divorce proceeding in which there are issues concerning property and the custody of children. Client is very depressed but has not sought medical treatment. The case is coming up for trial, but Client refuses to keep or to reschedule appointments with Lawyer to prepare. Client also has forbidden Lawyer from seeking a continuance for fear of undermining his case. Lawyer seeks advice as to her ethical responsibility.

Discussion: Rule 1.14 of the Massachusetts Rules of Professional Conduct provides as follows:
(a) When a client’s ability to make adequately considered decisions in connection with the representation is impaired, whether because of minority, mental disability, or for some other reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client.

(b) If a lawyer reasonably believes that a client has become incompetent or that a normal client-lawyer relationship cannot be maintained as provided in paragraph (a) because the client lacks sufficient capacity to communicate or to make adequately considered decisions in connection with the representation, and if the lawyer reasonably believes that the client is at risk of substantial harm, physical, mental, financial, or otherwise, the lawyer may take the following action. The lawyer may consult family members, adult protective agencies, or other individuals or entities that have authority to protect the client, and, if it reasonably appears necessary, the lawyer may seek the appointment of a guardian ad litem, conservator, or a guardian, as the case may be. The lawyer may consult only those individuals or entities reasonably necessary to protect the client’s interests and may not consult any individual or entity that the lawyer believes, after reasonable inquiry, will act in a fashion adverse to the interests of the client. In taking any of these actions the lawyer may disclose confidential information of the client only to the extent necessary to protect the client’s interests.

Lawyer’s first obligation is to try to make Client understand the very great risk of proceeding to trial without first meeting with Lawyer. Lawyer’s second obligation is to protect Client’s confidential information, as required by Rule 1.6. Client’s depression is confidential client information. Client has forbidden Lawyer to reveal this information, and Lawyer has no duty to disclose it to the court. Normally, that would be the end of the matter.
In this case, however, Rule 1.14 is also relevant to the inquiry. Client’s depression apparently interferes with the ability of Client and Lawyer to maintain a normal attorney-client relationship within the meaning of Rule 1.14(b). Lawyer believes that Client’s failure to prepare for trial puts Client at risk of an adverse outcome in the divorce proceedings. Rule 1.14 gives

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2005 Opinions continued

Lawyer permission to consult with family members and others in a position to protect Client when “the client lacks sufficient capacity to communicate or to make adequately considered decisions in connection with the representation, and if the lawyer reasonably believes that the client is at risk of substantial harm, physical, mental, financial, or otherwise . . . .” (See Opinion 04-1 for another instance of the applicability of Rule 1.14.) Client is currently living with his parents. Client also has a very close friend who has accompanied Client to all previous hearings in the divorce case. It would be appropriate under Rule 1.14 to contact both the parents and the close friend to ask them to attempt to persuade Client to meet with Lawyer prior to the trial.
Lawyer inquires about doing more, such as seeking appointment of a guardian for Client. However, although Client’s depression interferes with his ability to deal with the divorce, Lawyer believes that Client is otherwise functional and a good parent. In addition, seeking appointment of a guardian would provide Client’s spouse with substantial ammunition to use in the divorce proceedings and would thus undermine Client’s custodial and property goals.
It may be that Client will not heed the advice of family and friend to consult with Lawyer before trial. Those individuals might on their own take some action to protect Client’s interests. If they do not, Lawyer would have to face the responsibility referred to in Comment 2 to Rule 1.14: “If the person has no guardian or legal representative, the lawyer often must act as de facto guardian.” L would then have to decide whether the risk presented by Client’s inability to look out for his own interests in the litigation is a greater threat to the achievement of his goals than the threat presented by disclosure of his condition in order to obtain a continuance. This is a difficult balance to strike, and a lawyer should normally err on the side of preserving client confidences; but if Lawyer concludes that going to trial without proper preparation poses the greater risk to Client’s interests, Lawyer would be justified in seeking a continuance despite Client’s direction to the contrary. (Compare In re Georgette, 439 Mass. 28 (2003) for the Supreme Judicial Court’s expression of uncertainty about a lawyer’s responsibility to take action over the objection of a minor; see also the references to Rule 1.14 in Rule 1.2(a) and Comments 1 and 2 and Rule 1.4 and Comments 1, 2, and 3.)

This opinion was approved for publication by the Massachusetts Bar Association’s House of Delegates on March 3, 2005.

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