Rule 1.14. Client with diminished capacity.

(a) When a client’s capacity to make adequately considered decisions in connection with a representation is diminished, whether because of minority, mental impairment or for some other reason, the licensed paralegal practitioner shall, as far as reasonably possible, maintain a normal licensed paralegal practitioner-client relationship with the client.

(b) When the licensed paralegal practitioner 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 licensed paralegal practitioner may take reasonably necessary protective action, including consulting with individuals or entities that have the ability to take action to protect the client.

(c) Information relating to the representation of a client with diminished capacity is protected by Rule 1.6.  When taking protective action pursuant to paragraph (b), the licensed paralegal practitioner is impliedly authorized under Rule 1.6(a) to reveal information about the client, but only to the extent reasonably necessary to protect the client’s interests.

 

Comment

[1] The normal licensed paralegal practitioner-client relationship is based on the assumption that the client, when properly advised and assisted, is capable of making decisions about important matters. When the client is a minor or suffers from a diminished mental capacity, however, maintaining the ordinary licensed paralegal practitioner-client relationship may not be possible in all respects. In particular, a severely incapacitated person may have no power to make legally binding decisions. Nevertheless, 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. For example, children as young as five or six years of age, and certainly those of ten or twelve, are regarded as having opinions that are entitled to weight in legal proceedings concerning their custody. So also, 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.

[2] The fact that a client suffers a disability does not diminish the licensed paralegal practitioner's obligation to treat the client with attention and respect. Even if the person has a legal representative, the licensed paralegal practitioner should as far as possible accord the represented person the status of client, particularly in maintaining communication.

[3] The client may wish to have family members or other persons participate in discussions with the licensed paralegal practitioner. When necessary to assist in the representation, the presence of such persons generally does not affect the applicability of the attorney-client evidentiary privilege. Nevertheless, the licensed paralegal practitioner must keep the client’s interests foremost and, except for protective action authorized under paragraph (b), must look to the client, and not family members, to make decisions on the client’s behalf.

[4] If a legal representative has already been appointed for the client, the licensed paralegal practitioner should ordinarily look to the representative for decisions on behalf of the client. In matters involving a minor, whether the licensed paralegal practitioner should look to the parents as natural guardians may depend on the type of proceeding or matter in which the licensed paralegal practitioner is representing the minor. If the licensed paralegal practitioner represents the guardian as distinct from the ward, and is aware that the guardian is acting adversely to the ward’s interest, the licensed paralegal practitioner may have an obligation to prevent or rectify the guardian’s misconduct. See Rule 1.2(d).

Taking Protective Action

[5] If a licensed paralegal practitioner reasonably believes that a client is at risk of substantial physical, financial or other harm unless action is taken, and that a normal licensed paralegal practitioner-client 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, then paragraph (b) permits the licensed paralegal practitioner to take protective measures deemed necessary. Such measures could include: consulting with family members, using a reconsideration period to permit clarification or improvement of circumstances, using voluntary surrogate decision-making tools such as durable powers of attorney or consulting with support groups, professional services, adult-protective agencies or other individuals or entities that have the ability to protect the client. In taking any protective action, the licensed paralegal practitioner should be guided by such factors as the wishes and values of the client to the extent known, the client’s best interests and the goals of intruding into the client’s decision-making autonomy to the least extent feasible, maximizing client capacities and respecting the client’s family and social connections.

[6] In determining the extent of the client’s diminished capacity, the licensed paralegal practitioner 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 licensed paralegal practitioner may seek guidance from an appropriate diagnostician.

[7] If a legal representative has not been appointed, the licensed paralegal practitioner should consider whether appointment of a guardian ad litem, conservator or guardian is necessary to protect the client’s interests. Thus, if a client with diminished capacity has substantial property that should be sold for the client’s benefit, effective completion of the transaction may require appointment of a legal representative. In addition, rules of procedure in litigation sometimes provide that minors or persons with diminished capacity must be represented by a guardian or next friend if they do not have a general guardian. In many circumstances, however, appointment of a legal representative may be more expensive or traumatic for the client than circumstances in fact require. Evaluation of such circumstances is a matter entrusted to the professional judgment of the licensed paralegal practitioner. In considering alternatives, however, the licensed paralegal practitioner should be aware of any law that requires the licensed paralegal practitioner to advocate the least restrictive action on behalf of the client.

Disclosure of the Client’s Condition

[8] Disclosure of the client’s diminished capacity could adversely affect the client’s interests. For example, raising the question of diminished capacity could, in some circumstances, lead to proceedings for involuntary commitment. Information relating to the representation is protected by Rule 1.6. Therefore, unless authorized to do so, the licensed paralegal practitioner may not disclose such information. When taking protective action pursuant to paragraph (b), the licensed paralegal practitioner is impliedly authorized to make the necessary disclosures, even when the client directs the licensed paralegal practitioner to the contrary. Nevertheless, given the risks of disclosure, paragraph (c) limits what the licensed paralegal practitioner may disclose in consulting with other individuals or entities or seeking the appointment of a legal representative. At the very least, the licensed paralegal practitioner should determine whether it is likely that the person or entity consulted with will act adversely to the client’s interests before discussing matters related to the client. The licensed paralegal practitioner’s position in such cases is an unavoidably difficult one.

[9] Reserved.

[10] Reserved.

 

Effective November 1, 2018