Representing a client with diminished capacity: Where the law stands and where it needs to go

Georgetown Journal of Legal Ethics, The, Summer 2003 by Gallagher, James D, Kearney, Cara M

INTRODUCTION

As America's seventy-six million baby boomers approach retirement age, legal issues facing the elderly will become an even more prevalent societal concern.1 Elderly people are often targets of evils such as consumer fraud, predatory lending, identity theft, and exploitation, but one evil affects the legal affairs of the elderly that no law or community group can stop: dementia. Dementia is a progressive brain dysfunction, which leads to a gradually growing restriction of daily activities.2 Dementia is characterized by the loss of the ability to think, reason, and remember.3 The most common type of dementia is Alzheimer's disease.4 The probability of suffering from dementia escalates with advancing age.5 As the average U.S. citizen's lifespan continues to increase, and as baby boomers ascend into the age realm of sixty-five and older, the troubling effects of dementia will become even more ubiquitous in society, including in the legal community.6

Legal representation of a client with dementia raises a plethora of ethical issues. An attorney may feel compelled to disregard widely accepted ethical norms when dealing with a client with dementia. For example, one concern attorneys may face is determining the fine line between an attorney abandoning her duty of zealous representation so she can impose her own beliefs of what is right or wrong, and saving her client from making a dangerous decision that the client would not have made but for the dementia. For example, an attorney may think her client's wishes are not in the client's best interest. Should the attorney's judgment supercede the client's request? Or imagine if the client's physical, mental, or financial well-being could be jeopardized if the attorney does not, against the client's wishes, disclose privileged information to a friend or family member of the client. There may be a situation where a client with advanced Alzheimer's disease and his son want an attorney to represent them both in setting up a trust fund for the benefit of the son. If the son swears the fund, which gives 99% of the father's money to the son, is the arrangement in accordance with his father's wishes? Or should the attorney set up the trust and represent both the father and the son?

This Note will attempt to address these difficult issues. Part I of this Note will discuss the history of the Model Rules of Professional Conduct ("Model Rules"} and their reform. Specifically, it will examine Model Rule 1.14: Client with Diminished Capacity. Part I will examine the overly vague recent additions and modifications to this rule and the disappointingly insignificant impact the revisions are likely to cause. Part II will delve more deeply into the application of Model Rule 1.14 and illustrate the flaws in the current state of the law of representing a client with diminished capacity. Part II will also evaluate the rights (or non-rights) of the elderly; the inherent difficulty in the creation of a legal standard to determine when a client's capacity is diminished; the problem of guardians; and the danger in not promulgating a standard of how far an attorney must go to ensure that her client's interests are in good care.

I. CURRENT LAW ON REPRESENTING CLIENTS WITH DIMINISHED CAPACITY

The American Bar Association ("ABA"), in an attempt to standardize ethical rules governing the legal profession and replace them with legally binding rales, adopted the Model Rules in 1983.7 The Model Rules have been implemented in forty-two states and the District of Columbia, although the versions vary greatly from state to state.8 In 1997, due to the growing disparities in state ethics codes and new questions raised by the influence of technological developments on the delivery of legal services, the ABA formed the Ethics 2000 Commission to review and modify the Model Rules? The Commission submitted a report suggesting its revisions to the House of Delegates at the August 2001 Annual Meeting, which was debated at both that meeting and the February 2002 Midyear Meeting.10 The most recent amendment of the Model Rules came in August 2002 and was based on House debate of Reports and Recommendations by the Multijurisdictional Practice Commission and the Standing Committee on Ethics and Professional Responsibility.11

The Commission has significantly changed the Model Rules, in form if not in substance. The revisions to the Model Rules were an attempt to clarify and strengthen a lawyer's duty to communicate with the client and a lawyer's duty to clients in specific problem areas.12 They were meant to be responsive to the changing organization and structure of modern law practice and address new issues and questions raised by the influence that technological developments are having on the delivery of legal services.13 The Commission refined existing rules in an attempt to provide better guidance and explanation to lawyers; however, the revised rules still are not as clear as they could or perhaps should be.14 Among the other stated goals of the Ethics 2000 Commission were to highlight a lawyer's obligations to the tribunal and to the justice system, to respond to the need for changes in the delivery of legal services to low and middle income persons; and to increase protection of third parties.15