Originally published in the January 2017 issue of the King County Bar Association Bar Bulletin. Reprinted with permission of the King County Bar Association.
RPC 1.14 addresses our responsibilities as attorneys when communicating with clients with diminished capacity. A threshold issue in identifying whether a potential client — or a current client — has diminished capacity is what, exactly, it means for a person to have diminished capacity.
While the RPCs do not define the terms “diminished capacity” or “incapacitated,” RPC 1.14(a) does identify three circumstances in which there is an increased potential for a person’s decision-
making ability to be “diminished:” 1) minority; 2) mental impairment; and 3) “some other reason.”
Practitioners seeking guidance as to a legal definition of “mental impairment” might look to Washington’s Uniform Power of Attorney Act, which became effective January 1, and includes the following definition of “incapacity” at RCW § 11.125.020(5):
“Incapacity” means inability of an individual to manage property, business, personal, or healthcare affairs because the individual: (a) Has an impairment in the ability to receive and evaluate information or make or communicate decisions even with the use of technological assistance….
Comment  to RPC 1.14 also provides some degree of guidance in evaluating a client’s capacity:
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.
As with so many other aspects of practicing law, determining whether a client has diminished capacity — as well as the extent to which the capacity is diminished — is a bit of a gray area where guidance is provided in the form of a test that consists of balancing various factors. Unlike the many balancing tests we may encounter in case law, the balancing test in Comment  provides that an attorney may, in “appropriate circumstances,” seek guidance from “an appropriate diagnostician.” However, any attorney seeking outside guidance in determining the capacity of a client must be mindful of the obligation to maintain client confidentiality under RPC 1.6.
Mental impairment may or may not be immediately identifiable. Clients who do not appear to have capacity issues, but who, for example, have a brain tumor, are being treated with certain medications or recently experienced a traumatic event, such as a life-altering injury or the sudden death of a child or spouse, may nonetheless display some degree of diminished capacity.
Keeping Clients with Diminished Capacity “Reasonably Informed”
The mere fact that a client has diminished capacity does not abrogate your responsibility to communicate with the client consistent with RPC 1.4, which addresses communications in general. Your obligations under RPC 1.4 to keep a client “reasonably informed” about the status of their matter, to keep a client informed about the substance of their matter, and to explain a matter “to the extent reasonably necessary” to allow a client to make informed decisions apply to all of your clients, including those with diminished capacity.
RPC 1.14(a) directs that a lawyer “shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client.” The comments to RPC 1.14 emphasize that a client with diminished capacity is above all a client and should be treated with attention and respect.
For example, RPC 1.14 Comment  states: “The fact that a client suffers a disability does not diminish the lawyer’s obligation to treat the client with attention and respect.” In addition, Comment  to RPC 1.4 states: “The client should have sufficient information to participate intelligently in decisions concerning the objectives of the representation and the means by which they are to be pursued, to the extent the client is willing and able to do so.” The duty to keep a client reasonably informed remains paramount, even when the client has diminished capacity.
While the RPCs indicate clients should be provided information appropriate for a “comprehending and responsible adult,” Comment  to RPC 1.4 allows that “this standard may be impracticable, for example, where the client is a child or suffers from diminished capacity.”
How does an attorney keep a client with diminished capacity reasonably informed about their case? Comment  to RPC 1.14 provides some guidance. It states: “(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.” Thus, a client with diminished capacity may require a summary of the terms of a proposed settlement agreement presented at their level of understanding, rather than just a request to review the document and respond by a specific deadline. Or the client with diminished capacity may require more frequent communication to remind them of deadlines.
Some clients with diminished capacity may have family members or other “protectors” who wish to participate in your client’s discussions with you regarding their matter. The adult child, for example, may call your office to “check on” the progress of the mother’s case.
It is important to be mindful of your obligation under RPC 1.6 to protect client confidences, unless the client gives informed consent. If a client with diminished capacity requests that a family member or other person be present in their meetings with you, or that you communicate about the client’s file with this third party, you first need to determine whether that client is able to give informed consent to authorize the presence of the third party.
If you conclude that the client has the ability to give informed consent to a third party’s presence, the next step is to confirm with the client that it is indeed the client’s wish that family members participate in the client’s discussions with you. This can be accomplished by meeting with the client separately to confirm the client’s wishes in this regard or by having a telephone conversation with only the client on the line to confirm her wishes regarding communications with third parties.
Further, you should confirm with the client that any decisions made related to the client’s matter are the client’s and not those of family members. Again, a separate meeting or telephone call with the client without third parties present can confirm that the client’s decisions relate to their own objectives and not those of the third parties.
Comment  to RPC 1.14 states that the mere presence of family members at the client’s meeting with the attorney “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 [of RPC 1.14], must look to the client, and not family members, to make decisions on the client’s behalf.”
In other words, it is the client who ultimately remains the decision maker in the matter, even if that client’s capacity to make considered decisions is diminished for some reason.
What if a Client Develops Capacity Issues During Representation?
A client may not exhibit diminished capacity at the outset of the attorney-
client relationship. It may be that you notice during the course of your representation that a client’s capacity to make reasoned decisions appears to be declining.
What do you do when you suspect that a longtime client whose capacity you did not question has developed diminished capacity? Or what if you suspect that a client with diminished capacity is being taken advantage of by a “friend,” neighbor or family member?
RPC 1.14(b) authorizes an attorney to “take reasonably necessary protective action” when the attorney “reasonably believes that the client has diminished capacity [and] is at risk of substantial physical, financial or other harm unless action is taken ….”
As the attorney, you have a duty to advocate on your client’s behalf. And, particularly with long-term clients with whom you’ve had an attorney-client relationship over many years, the impulse to step in and help can be strong.
Although RPC 1.14(b) permits an attorney to consult with family members or others in a position to take protective action on behalf of a client whom you believe to have diminished capacity and be at risk of harm, it would be difficult to do so without providing at least some information you have learned about the client during the course of representation, which would then violate RPC 1.6.
RPC 1.14(c) attempts to address the issue of avoiding the disclosure of client confidences in the course of seeking protective action under RPC 1.14(b) by explicitly authorizing disclosure of information that would otherwise be protected, but “only to the extent reasonably necessary to protect the client’s interests.”
While RPC 1.14(b) does allow you to seek the appointment of a guardian on behalf of a client with diminished capacity, that permissive provision must be read together with the constraints of RPC 1.14(c) and RPC 1.6, which limit the extent of information revealed in seeking protection on behalf of the client. From a practical standpoint, revealing only enough information to communicate your reason for concern to a family member or caregiver (assuming that this person is not also the cause of the threat to the client’s interests) is probably going to be the most reasonable course of action.
Unfortunately, an easily identifiable family member or caregiver may not be available to step in and take action on behalf of a client with diminished capacity. If you do decide to step in on behalf of a client, you can look to case law for the standard of when and how such an undertaking should be conducted.1
Above all, if you decide to take protective action on behalf of a client under RPC 1.14(b), you will need to make a judgment call as to whether the benefit to the client with diminished capacity outweighs the harm of revealing information regarding the client. The “if” is significant here — this is a permissive provision in the RPCs. There is no requirement to attempt to take protective action on a client’s behalf.
It is important to be aware of capacity issues, no matter your practice area. The RPCs are clear that we attorneys have an ethical duty to maintain as normal an attorney-client relationship as possible with clients who have diminished capacity. To do so, we must be able to recognize the signs of potential diminished capacity in our clients and develop strategies for adjusting our communications to facilitate a productive attorney-client relationship with them.
Sherry Bosse Lueders practices in the areas of business law, estate planning and probate as an of counsel attorney with the law firm of Stacey L. Romberg, Attorney at Law. More information can be found at www.staceyromberg.com.
1 See, e.g., In the Matter of the Disciplinary Proceeding against Stephen K. Eugster, 166 Wn. 2d 293 (2009) (involving an attorney disciplined for initiating a guardianship proceeding on behalf of a former client).