Who decides for the impaired client? - Board of Bar Overseers

Issue August 2003 By Daniel C. Crane<br /> Bar Counsel

A longtime client is 92 years old and his landlord has filed proceedings to evict him from the apartment that has been his home for almost 50 years. The client lives there alone and is intent upon staying there. His lawyer has observed the client's health deteriorate in recent years. During the current representation, the lawyer has also concluded that the client's mental faculties, and particularly his ability to make decisions, have deteriorated. Still, the client is adamant that he wants to remain in his home and resist the eviction.

Other than opposing the eviction, what can the lawyer do to assist the client without violating the obligation pursuant to Mass. R. Prof. C. 1.6 not to reveal confidential information obtained during the representation of the client? Bear in mind that the obligation to maintain confidentiality is broader than the testimonial privilege and includes "virtually all information relating to the representation, whatever its source." Mass. R. Prof. C. 1.6, Comment 5.

Lawyers are frequently presented with this type of dilemma when they represent clients who, for any reason, have physical limitations on their ability to communicate or impairments because of mental disability or alcohol or drug abuse. It usually is not a problem when the lawyer agrees with the wishes of the client, but what may a lawyer do to assist the client when the client is incapable of expressing a decision or the lawyer considers the client's expressed decisions to be harmful to the client?

"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." Mass. R. Prof. C. 1.14(a). The rule recognizes that an impaired client may be capable of making many decisions and that the lawyer's responsibility is to provide advice to the client in making these decisions. "To an increasing extent, the law recognizes intermediate levels of competence." By example, " . . . it is recognized that some persons of advanced age can be quite capable of handling routine financial matters while needing special legal protection concerning major transactions." Mass. R. Prof. C., 1.14, Comment 1.

Simply disagreeing, or even strongly disagreeing with the client's decision, is not sufficient reason for not following the client's directions. Clients are entitled to make bad decisions. A lawyer who is unable to advocate for the client's position simply because he or she disagrees strongly with it might be required to withdraw. See Mass. R. Prof. C. 1.16(b)(1) and (3) and ABA Formal Ethics Opinion 96-404.

When the client's ability to make a considered decision is impaired and the lawyer reasonably believes the client is at risk of substantial harm, the lawyer may take additional steps to assist the client, even to the extent of disclosing confidential information necessary to assist the client. Mass. R. Prof. C. 1.14(b) provides: "If a lawyer reasonably believes that a client has become incompetent . . . and if the lawyer reasonably believes that the client is at risk of substantial harm, physical, mental, financial, or otherwise, the lawyer may" disclose even confidential information otherwise protected by Mass. R. Prof. C. 1.6 if it is necessary to protect the client's interests. 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 must take whatever action is least intrusive to the client when consulting others to determine whether the client is capable of making a considered decision about the matter at hand and the best interests of the client. In the eviction of the elder, if there was a substantial risk of physical or financial harm, Mass. R. Prof. C. 1.14 would allow the lawyer to consult with the client's family and social service providers and disclose confidential information necessary to determine whether alternative living arrangements might permit the client to remain in the apartment. The rule would not, however, permit the lawyer to disclose any information to the landlord or his counsel as such disclosure would not be consistent with the lawyer's obligations to the client.

As a last resort, Mass. R. Prof. C. 1.14 permits the lawyer to seek the appointment of a guardian ad litem, conservator or guardian. Although the lawyer may petition a court to have someone appointed as a guardian or other representative for the client, it would be a conflict of interest for the lawyer to represent the petitioner for such appointment. See ABA Formal Ethics Opinion 96-404.

Recently, the Supreme Judicial Court considered the problems of representing an impaired client in Care and Protection of Georgette, 439 Mass. 28, 34 (2003). In this case, two adolescent minors sought a new hearing in a proceeding that the Department of Social Services brought for their care and protection on the ground that their lawyer failed to advocate their position that they wanted to live with their father. The father was clearly unfit. The lawyer had advised the court of his clients' position but opposed it and argued for a permanent award of custody to DSS.

Ultimately, the court rejected the children's appeal based upon ineffective assistance of counsel because, among other reasons, the father would not have been granted custody even if the lawyer for the children had advocated their position. Nevertheless, the court was troubled by the lack of clear direction to counsel faced with clients whose desired goal was clearly against their best interests.

The court referred the matter to its Standing Committee on the Rules of Professional Conduct to study the question and make recommendations. In the meantime, the SJC directed lawyers to follow Standard 1.6 of the Performance Standards Governing the Representation of Children and Parents in Child Welfare Cases promulgated in 1999 by the Committee for Public Counsel Services.

Standard 1.6 provides generally that a lawyer's obligation in representing a child is to advocate for the child's position when the child is able to "verbalize a preference" and that preference "does not place the child at risk of substantial harm." However, if the child is not able to make a considered decision and the child's expressed preference pose a risk of substantial harm, the lawyer may either (1) advocate for the child's position, (2) advocate for the child's position and request the appointment of a guardian ad litem to make an independent recommendation to the court, (3) inform the court of the child's preference and request the appointment of a guardian ad litem to direct counsel in the representation or (4) disclose the client's wishes to the court and "represent the child in accordance with" the lawyer's determination of the child's preferences if the child were capable of making an "adequately considered decision." Lawyers should also take care that the request for appointment of a guardian ad litem or disclosure of the client's wishes to the court is made in a manner that is not prejudicial to the client.

The SJC's decision in Georgette and the CPCS standards address only the representation of juveniles in state intervention and parental rights cases. Representing juveniles in delinquency proceedings and other impaired individuals in different settings raises problems not necessarily addressed or resolved by the CPCS standards. The Court's survey in Georgette of various authorities includes Section 24 of the Restatement (Third) of the Law Governing Lawyers (2000), which provides general additional guidance to lawyers with impaired clients.