Wisconsin Lawyer
Vol. 79, No. 11, November
2006
Assessing Client Competence
New proposed SCR 20:1.14 guides lawyers in assessing a client's
capability of making reasoned decisions regarding the legal matter for
which the lawyer is providing representation.
by Dean R. Dietrich
Question
I often face situations where I question the mental stability of my
client. What steps can I take to make sure my client is fully capable of
making decisions about the legal matters I am working on?
Dean R. Dietrich, Marquette
1977, of Ruder Ware, Wausau, is chair of the State Bar Professional
Ethics Committee.
Answer
Lawyers often are faced with a difficult dilemma of questioning
whether a client is mentally stable and capable of making reasoned
decisions regarding the legal matter that the lawyer is working on. As
we all know, the client must make the ultimate decisions regarding the
course of representation and the objectives for the representation,
whereas the attorney's role is to determine the strategies to be used to
meet those objectives. The proposed changes to SCR 20:1.14 offer
guidance for lawyers to follow in assessing whether a client is
competent to render decisions regarding a representation. The new
proposed Rule included in the recent draft of revisions to Chapter 20 of
the Supreme Court Rules provides as follows:
SCR 20:1.14 Client with diminished capacity
(a) When a client's capacity to make adequately considered decisions
in connection with a 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 reasonably necessary to protect the client's interests.
Note from the above that the lawyer must maintain, as much as
possible, a "normal client-lawyer relationship with the client." If the
lawyer believes that the client has diminished capacity or is at risk of
some type of harm, the lawyer must take reasonably necessary protective
action, which could include the appointment of a guardian ad litem or a
guardian.
The ABA comment to the proposed SCR 20:1.14 offers some additional
suggestions for lawyers when faced with this difficult issue. The
comment notes the following:
- The lawyer has an obligation to treat the client with attention and
respect at all times.
- The lawyer should treat the person as a client, particularly by
communicating with the individual even if the client has a designated
legal representative.
- The client may choose to have family members or other persons
participate in discussions with the lawyer but the lawyer should always
look to the client rather than to family members or others when asking
for a decision on the client's behalf.
- If the lawyer concludes that a normal client-lawyer relationship
cannot be maintained because the client lacks sufficient capacity to
communicate or make adequately considered decisions regarding the
representation, the lawyer may take protective measures for the client's
benefit.
- Protective measures could include consulting with family members,
using a reconsideration period to permit clarification or improvement of
circumstances, using voluntary surrogate decision-making tools, such as
durable powers of attorney, and consulting with support groups,
professional services, adult-protective agencies, or other individuals
and entities that would have the ability to protect the client.
- When taking action to protect a client, the lawyer should be guided
by factors such 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."1
It can be difficult for a lawyer to determine whether or not a client
has sufficient capacity to make meaningful decisions regarding the
representation. The ABA Model Rule Comment offers some guidance to
lawyers who are considering this weighty matter. The Comment suggests
that the lawyer consider and balance the following factors:
- The client's ability to articulate reasoning leading to a
decision;
- The variability of the client's state of mind and ability to
appreciate the consequences of a decision;
- The substantive fairness of a decision made by the client;
- The consistency of a decision with the known long-term commitments
and values of the client.
The Comment also indicates that the lawyer may seek the guidance of a
medical professional or "appropriate diagnostician" when seeking to
assess a client's mental capacity. When doing so, the lawyer must be
careful to not disclose information related to the representation except
as minimally necessary to assist the medical professional in providing
appropriate guidance to the lawyer.
Because the duty of loyalty to the client should be foremost in the
mind of every lawyer, it might be hard for a lawyer to contemplate
taking action to seek protection for a client who may not be fully
capable of making decisions about the legal representation. It is very
difficult for lawyers to take types of action that could be considered a
betrayal of the client-lawyer relationship. Lawyers must, however, be
watchful of a client's mental capacity, and if necessary, take
appropriate steps to ensure that proper decision-making is made by, or
on behalf of, the client during the course of representation.
The Wisconsin Supreme Court considered proposed new Rule SCR 20:1.14
at its administrative conference on Oct. 25. It is anticipated that the
court will issue a final draft of the new Rules of Professional Conduct
after the Oct. 25 open conference. It also is anticipated that the new
rules in Chapter 20 will have an effective date of either Jan. 1, 2007
or July 1, 2007.
Wisconsin Lawyer