Attorney Client Relationship and Diminished Capacity

 by Dennis Fordham

An attorney owes the duties of competence, communication, confidentiality, loyalty and non-discrimination to a client. These duties require special attention and care by the attorney when representing client with diminished capacity. Recently the California State Bar issued formal Opinion No. 2021-207 (the “Opinion”) to examine four ethics issues when an attorney represents a client with diminished capacity.

First, “a lawyer has a duty to maintain, insofar as reasonably possible, a normal attorney-client relationship, as reflected in the rules relating to competence, communication, confidentiality, loyalty and nondiscrimination.” A lawyer must first apply the presumption that the client has capacity to engage in the legal activity. Capacity is evaluated on a “decision by decision basis” and the lawyer’s duty of competence may require the lawyer “taking measures to enhance the client’s ability to make and communicate an effective decision.” Some decisions require more capacity than other decisions.

For example, “the attorney may adjust the interview environment, communicate more slowly, spend more time, and meet the client when he or she is more lucid”. The attorney may have the client’s trusted family members help the client’s communication and understanding.

Nonetheless, the client must still have sufficient capacity. Even with support a lawyer must recognize that, “… the client may be unable to make a legally effective decision, …, or that diminished capacity will result in a decision that does not serve the client’s interest or exposes them to harm that the client cannot understand or prevent.”

For example, out of loyalty to the client, a lawyer should decline to modify a client’s estate planning when, “Lawyer’s reasonable belief is that Client lacks the capacity to make a decision reflecting Client’s interest and that Client’s preferred course would expose Client to the risk of exploitation.”

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Attorney Client Relationship and Diminished Capacity