An Attorneys Duties and Options When Faced with a Diminished Client: Change On the Horizon
By Brandon N. Krueger, who practices with Sall Spencer Callas & Krueger in Laguna Beach. His practice focuses on legal malpractice litigation and attorney-client fee disputes. He can be reached at email@example.com. The opinions expressed are his own.
An attorney who comes to the reasonable conclusion that her or his client suffers from diminished capacity and is no longer able to intelligently participate in decisions relating to the representation may understandably desire to take actions—such as initiating a conservatorship—that the attorney believes to be in the best interest of the client, but which are prohibited by the attorney's ethical duties. What may a lawyer do?
Numerous bar association committees have addressed this question, and all but one have concluded that an attorney's permissible options are extremely limited under existing law. However, the Commission for the Revision of the Rules of Professional Conduct has recently approved (to be recommended to the board for adoption and to the Supreme Court for approval) Proposed Rule 1.14. If adopted, Proposed Rule 1.14 would alter the existing landscape and increase the options available to an attorney faced with a client with diminished capacity.
State and local bar associations that have addressed this issue have generally concluded (with one notable exception) that an attorney may not initiate a conservatorship against a client or cause others to do so. However, different associations have relied upon different considerations in reaching their conclusions. Some have focused heavily on an attorney's duties to maintain inviolate his or her client's secrets, while others have focused on an attorney's duty of loyalty and obligation not to act adversely to a client.
San Diego County Bar Association Ethics Opinion No. 1978-1 addressed whether an attorney can initiate conservatorship proceedings for his or her own client when in the attorney's judgment the client is no longer competent. Opinion No. 1978-1 concludes that an attorney may not, because the attorney could neither initiate the proceedings, nor cause them to be initiated by others, without revealing client confidences. Opinion No. 1978-1 concludes that in light of Business and Professions Code Section 6068(e) and other opinions it surveyed, "it appears that the attorney in this matter should not initiate conservatorship proceedings in behalf of his client."
In 1988, the Los Angeles County Bar Association issued Formal Opinion No. 450, which considered whether an attorney could bring an action for appointment of a conservator for a present or former client where the attorney believes that a conservatorship is in that client's best interest. The opinion considered the options available to an attorney for a client who would soon receive a large inheritance and who also has developed a chemical dependency problem. The attorney believes it would be financially imprudent for his or her client to receive his inheritance and that a conservator of the property should be appointed, but the client is opposed. Under these circumstances the Los Angeles County Bar Association concluded the attorney is disqualified from bringing such a petition because an attorney may not bring an action against a present client. Nor would the opinion change if the attorney severed the relationship: even then, the attorney would be bringing an action "based upon confidential information acquired during the attorney's former representation" of the client.
In 1989,the State Bar of California Stating Committee on Professional Responsibility and Conduct (COPRAC) explored the issue as well, in Formal Opinion No. 1989-112. COPRAC similarly concluded that an attorney may not initiate a conservatorship against a client, even where the attorney has a reasonable basis for believing it is in the client's best interests. Formal Opinion No. 1989-112 based its conclusion in the attorney's duty to protect client secrets, governed broadly by Business and Professions Code section 6068(e) and also by Evidence Code section 952. By instituting a conservatorship proceeding, the attorney would be divulging client secrets to the court and to third-parties, which is not permitted. Formal Opinion No. 1989-112 also noted that the conflicting and adverse interests created by an attorney taking action in such a situation implicate Rule of Professional Conduct 3-310, and that such conflict may not be waivable because a diminished client may not be able to consent to the attorney's representation of conflicting interests. Formal Opinion No. 1989-112 concluded that under the circumstances it may be that the only action an attorney may take is to withdraw.
In dramatic contrast, the Bar Association of San Francisco came to a very different conclusion. In Opinion 1999-2, the Bar Association of San Francisco concluded that where an attorney reasonably believes the client is unable to manage his or her own affairs or resist fraud or undue influence, an attorney "may, but is not required, to take protective action" including recommending the appointment of a conservator or guardian ad litem. In support of this conclusion, Opinion 1999-2 found the attorney had "implied authority to make limited disclosures necessary to achieve the best interests of the client."
While Bar Association of San Francisco Opinion 1999-2 noted that the opinions of California bar associations (including those described here) had reached opposite conclusions, it concluded that "an attorney should be able to act", and that "the client's best interests are paramount, not the attorney's role." In support of this conclusion, the Bar Association of San Francisco looked to ABA Model Rule 1.14, which permits more discretion to the attorney than any California authority, but which has not been adopted in California.
That may be changing.
In what could herald a significant change in California authority on this subject, the Rules Revision Commission has approved Proposed Rule 1.14 (a modified version of ABA Model Rule 1.14), for approval at its January 2016 meeting.
Proposed Rule 1.14 would create a framework in which an attorney could take limited action. Under Proposed Rule 1.14, a lawyer "may, but is not required to take protective action…where the lawyer reasonably believes" there is significant risk of harm (physical, psychological or financial) unless protective action is taken, and that the client has significantly diminished capacity such that the client cannot understand and make considered decisions regarding that harm. (Proposed Rule 1.14(b)(1).)
Recognizing that Business and Professions Code section 6068(e) protects information related to the client's diminished capacity, Proposed Rule 1.14 would authorize protective action in the client's best interests where the attorney discloses no more information than is reasonably necessary to protect the client. Permitted protective action includes notifying an individual or organization that can take action to protect the client, and seeking to have a guardian ad litem appointed.
Client consent is a key component of Proposed Rule 1.14: before taking protective action the attorney must take all steps reasonably necessary to preserve client confidentiality and decision making authority. This includes explaining the need to take protective action, and obtaining the client's consent to that action. (Proposed Rule 1.14(c).) Proposed Rule 1.14 would permit an attorney to obtain limited advance consent to take protective action at a later date, under specified circumstances—but such advance consent remains revocable at any time. (Proposed Rule 1.14(d).)
Significantly, the Proposed Rule would still prohibit an attorney taking action adverse to the client, including initiating a conservatorship. (Proposed Rule 1.14(e).)
While Proposed Rule 1.14 would not permit as much attorney protective action as Bar Association of San Francisco Opinion 1999-2, if adopted it would be a significant development in California law, and would provide more discretion to an attorney than presently exists. To date, neither the State Bar Board of Trustees nor the Supreme Court has yet considered Proposed Rule 1.14.
LACBA's Professional Responsibility and Ethics Committee welcomes new inquiries from LACBA members regarding ethical issues or concerns about professional responsibilities. The identity of the inquirer is kept confidential within the committee. The committee, however, does not publish formal opinions that are the subject of any pending litigation involving the inquirer. If you have an ethical question that you would like the committee to consider, you can mail your written inquiry to Los Angeles County Bar Association, Professional Responsibility and Ethics Committee, P.O. Box 55020, Los Angeles, CA 90055-2020, or e-mail your inquiry marked “Confidential” to Member Services at firstname.lastname@example.org.