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Alabama Rule 1.14 Client With Diminished Capacity (a) When a client's ability to make adequately considered decisions in connection with the representation is diminished, whether because of minority, mental impairment, or for some other reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client. (b) When the lawyer 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 lawyer may take reasonably necessary protective action, including consulting with individuals or entities that have the ability to take action to protect the client and, in appropriate cases, seeking the appointment of a guardian ad litem, conservator, or guardian. (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 lawyer is impliedly authorized under Rule 1.6(a) to reveal information
about the client, but only to the extent necessary to protect the client's
interest. COMMENT The fact that a client suffers diminished capacity does not lessen the lawyer's obligation to treat the client with attention and respect. Even if the person has a legal representative, the lawyer should, as far as possible, accord the represented person the status of client, particularly in maintaining communication. The client may wish to have family members or other persons participate in discussions with the lawyer. 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 lawyer must keep the client's interests foremost and, except for protective action authorized under paragraph (b), must look to the client, and not the client's family members, to make decisions on the client's behalf.
If a legal
representative has already been appointed for the client, the lawyer should
ordinarily look to the representative for decisions on behalf of the client. In
matters involving a minor, whether the lawyer should look to the parents as
natural guardians may depend on the type of proceeding or matter in which the
lawyer is representing the minor. If the lawyer represents the guardian as
distinct from the ward and is aware that the guardian is acting adversely to the
ward's interest, the lawyer may have an obligation to prevent the guardian's
misconduct. See Rule 1.2(d). If a lawyer reasonably believes that a client is at risk of substantial physical, financial, or other harm unless action is taken and 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, then paragraph (b) permits the lawyer to take protective measures deemed necessary. Such measure could include: consulting with the client's family members, using a reconsideration period to permit clarification or improvement of circumstances using voluntary surrogate decision-making tools such as valid 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 lawyer 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. 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.
If a legal
representative has not been appointed, the lawyer should consider whether
appointment of a guardian ad litem or conservator or the entry of another
protective order is necessary to serve the client's best 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. Whether the appointment of a legal representative is justified under
the circumstances is a matter entrusted to the professional judgment of the
lawyer. In considering alternatives, however, the lawyer should be aware of any
law that requires the lawyer to advocate the least restrictive action on behalf
of the client.
Information
relating to the representation is protected by Rule 1.6. Therefore, unless
authorized to do so, the lawyer may not disclose such information. When taking
protective action pursuant to paragraph (b) of this rule, the lawyer is
impliedly authorized to make the necessary disclosures, even when the client
directs the lawyer to the contrary. Nevertheless, given the risks of disclosure,
paragraph (c) limits what the lawyer may disclose in consulting with other
individuals or entities or seeking the appointment of a legal representative. At
the very least, the lawyer 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. In an emergency where the health, safety, or financial interest of a person with seriously diminished capacity is threatened with imminent and irreparable harm, a lawyer may take legal action on behalf of such a person even though the person is unable to establish a client-lawyer relationship or to make or express considered judgments about the matter, when the person or another acting in good faith on that person's behalf has consulted with the lawyer. Even in such an emergency, however, the lawyer should not act unless the lawyer reasonably believes that the person has no other lawyer, agent, or other representative available. The lawyer should take legal action on behalf of the person only to the extent reasonably necessary to maintain the status quo or otherwise to avoid imminent and irreparable harm. A lawyer who undertakes to represent a person in such an exigent situation has the same duties under these Rules as the lawyer with respect to a client. A lawyer who acts on behalf of a person with seriously diminished capacity in an emergency should keep the confidences of the person as with any client, disclosing them only to the extent necessary to accomplish the intended protective action. The lawyer should disclose to any tribunal involved and to any other counsel involved the nature of his or her relationship with the person. The lawyer should take steps to regularize the relationship or implement other protective solutions as soon as possible. COMPARISON WITH FORMER ALABAMA CODE OF PROFESSIONAL RESPONSIBILITY There was no counterpart to this Rule in the Disciplinary Rules. EC 7-11 stated that the "responsibilities of a lawyer may vary according to the intelligence, experience, mental condition or age of a client ... . Examples include the representation of an illiterate or an incompetent." EC 7-12 stated that "[a]ny mental or physical condition of a client that renders him incapable of making a considered judgment on his own behalf casts additional responsibilities upon his lawyer. Where an incompetent is acting through a guardian or other legal representative, a lawyer must look to such representative for those decisions which are normally the prerogative of the client to make. If a client under disability has no legal representative, his lawyer may be compelled in court proceedings to make decisions on behalf of the client. If the client is capable of understanding the matter in question or of contributing to the advancement of his interests, regardless of whether he is legally disqualified from performing certain acts, the lawyer should obtain from him all possible aid. If the disability of a client and the lack of a legal representative compel the lawyer to make decisions for his client, the lawyer should consider all circumstances then prevailing and act with care to safeguard and advance the interests of his client. But obviously a lawyer cannot perform any act or make any decision which the law requires his client to perform or make, either acting for himself if competent, or by a duly constituted representative if legally incompetent." |
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