Wisconsin Lawyer: Ethics: Assessing Client Competence:

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    Ethics: 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.

    Dean R. Dietrich

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    Wisconsin LawyerWisconsin 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


    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 DietrichDean R. Dietrich, Marquette 1977, of Ruder Ware, Wausau, is chair of the State Bar Professional Ethics Committee.


    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.

    1See Comment 5 to ABA Model Rule 1.14.

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