Chapter 4. Ethics & Professionalism – Client under disability

4:6. Client under Disability

Rule of Professional Conduct 1.14 provides:

• When a client’s ability to make adequately considered decisions in connection with the representation is impaired, whether because of age, mental or medical disability or for some other reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client.
• A lawyer may seek the appointment of a guardian or take other protective action with respect to a client when the lawyer reasonably believes that the client cannot adequately act in the client’s own interest.

The Comments to Rule 1.14 stress that the normal attorney-client relationship assumes that the client is able to make decisions about important matters when properly advised and assisted. Even if a person is an incapacitated adult or a minor child, he or she may have the capacity to understand, think about and reach conclusions regarding matters related to personal well-being. The lawyer must treat every client with courtesy and respect, sometimes act as a de facto guardian, consider having a guardian appointed, and, insofar as possible, treat the represented person as the client and include him or her in communication even if a guardian has been appointed. Professional judgment is critical, and may sometimes require consultation with an appropriate mental health professional.

One of the more difficult aspects of representing clients with disabilities is recognition of what Comment 1 refers to as “intermediate degrees of competence.” If the client is a profoundly injured a two-year-old, care is required to secure appointment of a parent or other appropriate person as guardian of the property prior to finalizing a settlement, to assure that proper procedures are in place to safeguard whatever funds may be obtained for the child, and to guide the guardian’s actions, with no consideration of including the child in decisions. Depending on the amount of a settlement, it may be necessary to obtain court approval or have a conservator appointed for the minor’s property.¹

Representation of minors requires discernment regarding the widely varying rates at which humans mature. As in parenting, dealing with older kids can be more complex. Occasionally, a bright twelve-year-old may have a sharper focus than any of the involved adults on the most important practical objectives of representation. For example, when prompt settlement of a claim for a parent’s wrongful death at a level sufficient to move her from a poor school in an impoverished neighborhood to an exclusive private preparatory school, and then fund education through graduate school, versus the chance of a much larger recovery years later, a wise child may have better sense that greedier adults. The lawyer should give considerable weight to the priorities expressed by such a minor. On the other hand, an immature teenager approaching the age of majority may have judgment so clouded by adolescent fascination with hot cars, sex, and pipedreams that the lawyer should take care to shield the adolescent from his immaturity by recommending a structured settlement that defers receipt of most funds until the youth has a chance to gain greater education and maturity.²

A client’s decision-making capacity may be impaired due to immaturity, senility, retardation, insanity, medication, or alcohol or drug addiction. It is often unclear whether the lawyer should act on the client’s expressed wishes, if any (the “advocacy” model), or in what the lawyer considers the client’s best interests (the “best interests” model), or do what the lawyer thinks the client would direct if the client were capable of instructing counsel competently (the “ substituted judgment” model). Rule 1.14 does not define “other protective action,” but such action “has been interpreted to include the involvement of other family members who are concerned about the client’s well-being, use of a durable power of attorney or a revocable trust where a client of impaired capacity has the capacity to execute such a document, and referral to support groups or social services that could enhance the client’s capacities or ameliorate the feared harm.” ³

Occasionally this Rule is relevant with regard to a client who apparently has full mental capacity, but who must communicate through an interpreter due to a communications disorder or lack of language skills. Such circumstances may impose upon the lawyer special duty to be “precise, meticulous and definite” so that no misunderstanding would arise regarding the representation. ⁴

The most difficult judgments in this area relate to representation of an adult client with diminished capacity, but who is not quite to the point of requiring appointment of a legal guardian. Sometimes the client is able to drive, pay routine bills, deposit a disability check in the bank, and call the lawyer with mind-numbing frequency, but is clearly at least “a few bricks shy of a load.” Such a client may be totally unwilling to submit to psychological evaluation. The balance between respect for the client’s autonomy and concern for protecting the client from his own lack of judgment can be distressing, particularly when a lawyer has seen other clients refuse to accept safeguards over settlement funds and then quickly blow through the money. In extreme circumstances the lawyer may be required to consider seeking appointment of a guardian of the person or guardian ad litem, even against the client’s expressed wishes.⁵

One of the common challenges encountered in tort practice is that of safeguarding funds obtained as compensation for injury. While an adult with no lack of capacity may be able to make an autonomous decision about the management of funds, the lawyer may be obligated to strongly advocate for means of protecting the client with a disability that affects the ability to prudently handle one’s own affairs. Options may include guardianship, a structured settlement annuity, a special needs trust, other forms of trusts, and combinations of such mechanisms. If counsel has reason for concern about an abusive or manipulative family member of the client making off with funds of a client of limited capacity, it may be appropriate to suggest that the client consent to asking the trial court to exercise its discretion to appoint a guardian ad litem to oversee the terms of any settlement.⁶

¹ O.C.G.A. §29-3-3.

² See generally James Kenneth Genden, Separate Legal Representation for Protecting the Rights and Interests of Minors in Legal Proceedings, 11 Harv. C.R.-C.L. L. Rev. 565, 588-89 (1976).

³ ABA Ethics Comm., Formal Op. 96-404 (1996). See also Restatement (Third) of Law Governing Lawyers §24(4) (2000).

⁴ See, e.g., George v. Caton, 93 N.M. 370, 600 P.2d 822 (Ct. App. 1979) (lawyer representing Navajo-speaking client who spoke through interpreter had special duty to be “precise, meticulous and definite” so that no misunderstanding would arise about existence of lawyer-client relationship).

⁵ State Bar of Georgia, Rules of Professional Conduct, Rule 1.14.

⁶ O.C.G.A §9-11-17(c).

On May 22, 2018, former State Bar of Georgia president Ken Shigley will be a candidate for election to the Georgia Court of Appeals. The only other candidate is Ken Hodges, a former Dougherty County District Attorney. Ken Hodges was the Democratic Party nominee for Attorney General in 2010.