THE LAW, THE ETHICS AND THE

SCIENCE OF LITIGATING WITH A

DIMINISHED CAPACITY CLIENT

Presented by the

American Bar Association Solo, Small Firm, and General Practice Division, Commission on Law and Aging, Senior Lawyers Division, Section of Litigation, Section of Family Law, Health Law Section, Commission on Disability Rights and Center for Professional Development

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The materials contained herein represent the opinions of the authors and editors and should not be construed to be the action of the American Bar Association Solo, Small Firm, and General Practice Division, Commission on Law and Aging, Senior Lawyers Division, Section of Litigation, Section of Family Law, Health Law Section, Commission on Disability Rights and the Center for Professional Development unless adopted pursuant to the bylaws of the Association.

Nothing contained in this book is to be considered as the rendering of legal advice for specific cases, and readers are responsible for obtaining such advice from their own legal counsel. This book and any forms and agreements herein are intended for educational and informational purposes only. © 2012 American Bar Association. All rights reserved. This publication accompanies the audio program entitled “The Law, the Ethics and the Science of Litigating with a Diminished Capacity Client” broadcast on December 12, 2012 (event code: CET2LES).

Discuss This Course Online Visit http://www.americanbar.org/groups/cle/course_content/cle_discussion_boards.html

to access the discussion board for this program. Discussion boards are organized by the date of the original program,

which you can locate on the preceding page of these materials.

TABLE OF CONTENTS

1. Presentation Slides 2. Representing Clients Who May Have Diminished Capacity (Chapter 5 from the

forthcoming ABA publication tentatively titled Introduction to Ethics in an Elder Law Practice)i

Roberta K. Flowers and Rebecca C. Morgan 3. To Litigate or Not To Litigate—That Is the Question (Chapter 8 from the forthcoming

ABA publication tentatively titled Introduction to Ethics in an Elder Law Practice) Roberta K. Flowers and Rebecca C. Morgan 4. The Five (Okay Actually Six) Commandments For Representing Clients With Diminished

Capacity Roberta K. Flowers and Rebecca C. Morgan 5. Considerations In Litigating Mental Capacity Issues: Should Grandma Be Sued, and How

Would Grandma Respond? Bruce F. Rogers and William S. Pritchard, III i © American Bar Association. Reprinted with permission. All Rights Reserved.

1

1

Dr. Daniel C. Marson, The University of Alabama at Birmingham Professor Rebecca Morgan, Stetson College of Law Bruce Rogers, Bainbridge, Mims, Rogers & Smith, LLP

The Law, the Ethics, and the Science of Litigating with a Diminished Capacity Client

Faculty

Rebecca C. Morgan, Director, Center for Excellence in Elder Law

Stetson University College of Law

Gulfport, FL

Daniel C. Marson, J.D., Ph.D., Professor of Neurology

Director, Alzheimer’s Disease Center

University of Alabama at Birmingham School of Medicine

Birmingham, AL

Bruce F. Rogers, Member

Bainbridge Mims Rogers & Smith, LLP

Birmingham, AL

2

Goals for the Session

Identify civil matters where diminished capacity is an issue

Discuss how to assess the capacity of a client

Explore ways to maximize capacity

Understand the ethical responsibilities when dealing with clients with diminished capacity

Consider legal framework and practical ways to deal with a diminished capacity client as a witness

3

Carpenter v. Gregory

Ms. Carpenter is suing Keith Gregory for fraudulent conversion.

Carpenter claims that Gregory fraudulently convinced her to sign a power of attorney

Gregory then used the power of attorney to sell Ms. Carpenter’s stocks

He then lost the money when he invested it in stock market under his name.

Lost about $700,000.

Settlement offer is on table.

Confusion--Video

4

Normal Cognitive Aging

“…the decrease in performance on various measures of cognitive functioning associated with increasing age in the adult portion of the lifespan.”

Salthouse, T. Theoretical Perspectives on Cognitive Aging, Lawrence Erlbaum Associates, Hillsdale, NJ: 1991, pp.1-2.

Declines are normative with aging—not disease based

Multiple abilities affected with different trajectories over time

Caveat: some cognitive functions are resilient to aging

Cognitive/Behavioral Disorders of Aging

Mild cognitive impairment (MCI):

Cognitive disorder transitional in many cases to dementia

Insufficient functional change to support dementia diagnosis

Dementias of aging:

Alzheimer’s disease

Parkinson’s disease

Lewy body dementia

Frontotemporal dementia

Vascular dementia

5

Signs of Diminished Capacity

No one single indicator of diminished capacity (DC)

But client behaviors, taken together, may signal DC

Some guiding principles of observation:

Focus on client’s actual decisional abilities

Do not be mislead by cooperativeness, affability, social skills

Pay attention to changes in client over time (“interval change”)

Consider whether mitigating factors may explain recent changes

Recent illness, bereavement, visual loss

Beware of ageist stereotypes

Assessment of Older Adults with Diminished Capacity: A Handbook for Lawyers, p. 13

CLOX 1: Normal Control

6

CLOX 1: MCI

CLOX 1: Mild AD

7

CLOX 1: Moderate AD

Cognitive Signs of Diminished Capacity

Short term memory loss

Disorientation

Communication problems

Comprehension problems

Lack of mental flexibility

Calculation problems

Assessment of Older Adults with Diminished Capacity: A Handbook for Lawyers, p. 14-15

8

Emotional/Behavioral Signs of Diminished Capacity

Poor grooming/hygiene

Social inappropriateness

Emotional lability

Hoarding

Delusions / Hallucinations

Assessment of Older Adults with Diminished Capacity: A Handbook for Lawyers, pp. 15-16

9

Levels of Diminished Capacity

Intact—no or minimal evidence of DC; no action needed

Mild problems—some evidence of DC, but insufficient to preclude proposed transaction; document decision

More than mild problems—substantial evidence of DC sufficient to warrant consultation with mental health professional, and/or referral of client for formal capacity evaluation

Severe problems—client lacks capacity for transaction

Assessment of Older Adults with Diminished Capacity: A Handbook for Lawyers, pp. 19-20

A Process:

To download: http://www.apa.org/pi/aging/resources/guides/diminished-capacity.pdf To order: www.shopaba.org

10

Presumption of Competent

Harmful and damaging to individual autonomy and attorney/client relationship

Legal principal

Starting place for assessment—substantiating evidence of impaired decision making Avoid stereotypes

Avoid substituting attorney’s idea of what is in the client’s best interest

Contractual and Donative Capacity

“The ability to comprehend in a reasonable manner, the nature and effect of the act in which he or she is engaged.”

Medical directives—Informed consent?

11

Rule 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.

Comments to 1.14

Normal relationship based on assumption client, when properly advised & assisted, capable of making decisions about important matters.

Client suffers from diminished capacity, maintaining relationship may not be possible in all respects.

12

Further Evaluation/Consultation

Cmt 6 “In appropriate circumstances the lawyer may seek guidance for an appropriate diagnostician”

Consent

Document, Document, Document Extrinsic evidence of capacity

Attorney/Client privilege and confidentiality

Mandatory Reporting

Risks of disclosure (Cmt 8)

Competency to Testify

FRE 601 - Every person is competent to be a witness unless these rules provide otherwise.

FRE 602 - A witness may testify to a matter only if evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter.

FRE 603 - Before testifying, a witness must give an oath or affirmation to testify truthfully.

In plain terms, ability to observe, remember, communicate, understand oath and tell truth.

State v. Krueger, 890 N.E.2d 332 (Ohio Ct. App. 2008).

Difiore v. Casco N. Bank, N.A., 621 A.2d 860 (Maine 1993)

13

Means to Enhance Client Capacity

Important consideration in a legal case

Can client capacity to testify be enhanced/supported in any way?

Improve vision or hearing

Allowing sufficient recovery period from illness

Time of day of testimony

Simple, direct questions

Frequent breaks

Hydration, nutrition, and medication

Additional rehearsal needed

Emotional support

Preparing to Use a Diminished Capacity Client as a Witness

Consult a medical professional for recommended guidance

Seek advance protections from the court Consider taking client’s deposition in

home or safe environment as opposed to court

Practice testimony and cross-examination with client

14

FRCP 17(c)

(1) With a Representative. The following representatives may sue or defend on behalf of . . . an incompetent person:

(A) a general guardian;

(B) a committee;

(C) a conservator; or

(D) a like fiduciary.

(2) Without a Representative. [A]n incompetent person who does not have a duly appointed representative may sue by a next friend or by a guardian ad litem. The court must appoint a guardian ad litem—or issue another appropriate order—to protect a[n] . . . incompetent person who is unrepresented in an action.

Preparing for Trial Without Using Diminished Capacity Client as a Witness

Admissible documentary evidence Hearsay exceptions Excited utterances When witness “is unable to be present or

to testify…because of…then existing physical or mental illness or infirmity”

Statements made in prior proceeding Statements about personal or family

history Explore settlement

15

Can I Seek a Guardian for My 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.

Comment re: Taking Protective Action (5)

If 1.14(b) criteria are met, then attorney may take necessary protective measures which may include: Consult with family

Use “cooling off” period to permit clarification or circumstances improve

Use voluntary surrogate decision-making (DPOA, etc) or consulting with support groups

Professional services

APS or others with ability to protect client.

Lawyer should be guided by factors such as: client’s known wishes & values, client's best interests, goals of minimal intrusion into client's decision-making autonomy, maximizing client capacities & respecting client's family & social connections.

16

Confidentiality

Rule 1.6 (a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b).

Rule 1.14 Client With Diminished Capacity

(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.

17

Comment re: Disclosure of the Client's Condition (8)

Disclosure diminished capacity could adversely affect client's interests

Info relating to representation protected under 1.6 & attorney cannot disclose info without authorization

When taking protective action, attorney impliedly authorized to make necessary disclosures, even when client says not to do so

Rule limits what may be disclosed in consults with other individuals or entities or seeking appointment of legal representative

At minimum, attorney determines whether one with whom consults will act adversely to client's interests before consult

Attorney’s position an unavoidably difficult one

Least Restrictive Means

(7) If no legal representative, attorney consider whether GAL, conservator or guardian necessary to protect client's interests.

In addition, rules of procedure in litigation sometimes provide persons with diminished capacity must be represented by guardian or next friend if no general guardian.

In many circumstances, however, appointment of legal representative may be more expensive or traumatic for client than circumstances require. ◦ Evaluation of such circumstances is matter entrusted to professional

judgment of attorney. ◦ In considering alternatives, attorney should be aware of any law that

requires attorney to advocate least restrictive action for client.

18

Current capabilities

Family cooperation or interference

Feelings

Medical records and medical expert testimony

Existence of Power of Attorney

McCallie v. McCallie, 660 So. 2d 584 (Ala. 1995).

Guardianship and Conservatorship Proceedings

Treat every client with dignity and respect regardless of the

client’s capacity.

19

OBJECTIONS

Questions?

2

Representing Clients Who May Have Diminished

Capacity

"It is the epitome of life. The first half of life consists of the capacity to enjoy without the chance; the last half consists of the chance

without the capacity."1

An old friend of an elder loll' atlOme} comes ill to the ollolne)" 's office 10 change the ta lllS of

her will thai has bUll ill "lace for 1II0 llY years. \Vhe" the clh1llt arrires. she is lrellring pajama bottoills and £I t-shirt. (lnd looks as thol/gh she

has 110 1 har}lI!d ill a week. She informs the attorney that she wall/S to chall!?e her will (/lid

leave her ell tire estale to Iter da hshllnd. Pel/ny. instead (If her three ungratef lll children.

PRACTICAL QUESTION CHECKLIST

Determining the Capacity of the Client 1. What is the capacity that is necessary for

the action the client wishes to take? 2. Does the client currently have the capacity

to complete the action he or she wishes to take?

1. Letter from Mark Twain to Edward Dimmit (July 19. 190 1). available at http: //www.twainquotes.comlLife. html.

123

5

124 CHAPTER FIVE

Determining the Actions Necessary if Client Has Diminished Capacity

1. Are there actions the attorney can take to maximize the client's capacity so that the client can take the desired action?

2. How does the attorney continue to treat the client in a normal attorney/client relationship?

3. Does the client need protective action? 4. If so, what protective actions should be taken?

Introduction

Elder law attorneys are not the only attorneys who are faced with diffi­cult considerations of the mental capacity of a client. Although a client's mental capacity can become an important consideration in any repre­sentation, for elder law attorneys the issues involving assessment of a client's capacitys are more likely to arise on a routine basis and in some practices almost daily. Because elder law attorneys serve an ag­ing client population, they are more likely to face issues of diminished or diminishing capacities in their clients. Therefore, elder law attor­neys must become intimately familiar with the ethical issues involved in representing clients with diminished capacity and a thorough knowl­edge of their state's equivalent rule to Model Rule J.14 (Clients with Diminished Capacity).2 Additionally, it is essential that an elder law

2. MODEL R ULES OF !'ROF' L CONDUCT R. 1.14 states: Ca) 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. Cb) 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.

Representing Clients Who May Have Diminished Capacity 125

attorney have a strong working knowledge of the functional defini­tions of capacity, the interviewing techniques that are helpful to assist clients in communicating, and the variety of protective actions avail­able to serve their clients. '

Although thi s book deals primarily with ethics, it is important to

understand the parameters of capacity as they relate to the client. Al ­though a client's lack of capacity is not commonly incorporated into the discussion of ethics, it is relative to the elder law attorney. This chapter will examine capacity as part of ethically representing a client with diminished capacity. To some extent, this chapter provides the basis for the discussion on guardianship and fiduciary representation issues found later in the book.

Considerations of the mental capacities of a client arise in three general ways. Initially, before representation begins, an attorney must be sure that his potential client has the capacity to contract. Retaining an attorney requires that the client has such capacity. If the client lacks the capacity to contract, the attorney cannot be retained and represen­tation cannot begin' Throughout the representation, the attorney must

(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 cl ient's interests.

3. A very effective tool in acquiring this knowledge is the ASSESSMENT OF OLDER AoULTS WJTIi DIMINISHED CAPAcrrr: A HANDBOOK RlR LAWYERS (ABA Comm' n on Law &Aging &Am. Psychological Ass'n 2005) [hereinafter HANDBOOK] (available for purchase at http://apps.americanbar.org/abastorelindex.cfm?section= main&fm=Product.AddToCart&pid=4280025, or available for download as a pdf­file from the American Psychological Association, at http://www.apa.orglpi/ag­ing/resources/guides/diminished-capacity.pdf).

4. HANDBOOK, supra note 3, at I. But see MODEL RULES OF PROF'L CONDUCT R. 1.14 cmt. 9 ("In an emergency where the health, safety or a financial interest of a person with seriously diminished capacity is threatened with imminent and ir­reparable harm, a lawyer may take legal action on behalf of such a person even though the person is unable to es tablish a client-lawyer relationship or to make or express considered judgmenls about the matter, when the person or another acting in good faith on that person's behalf has consulted with the lawyer. Even in such an emergency, however, the lawyer should not act unless the lawyer reasonably believes that the person has no other lawyer, agent or other representative avai l­able .... ").

126 CHAPTER F IVE

remain confident that the client has the mental capacity to give in­formed consent to the legal actions that the client is undertaking. ' Fi­nally, in litigation, capacity may be the contested issue. In this situation, the attorney's straightforward duty is "to advocate fairly but zealously for the" interests of the client by requiring the petitioner to prove the incapacity'

Representing a client with diminished capacity is a complicated and difficult task. Therefore, the attorney who represents a client with diminished capacity must be mindful of his ethical responsibilities. The issues that can commonly arise for the elder law attorney include assessing the attorney 's own ability to represent such a client, includ­ing the extra time and resources needed; whether the client has suffi­cient capacity to articulate her goals under Model Rule 1.2; the attorney's ability to communicate with the client in accordance with Rule 1.4; the requirements to keep the client's information confidential in compli­ance with Rule 1.6; the parameters of protecti ve action under Rule 1.14; and issues of permissible withdrawal under Rule 1. 16.

As set out in Model Rule 1.1, the attorney must be competent to provide representation. Although the rule speaks primarily in terms of substantive law, the elder law attorney must also understand the pa­rameters of the law as it relates to representation to the client with diminished or limited capacity.' This does not mean that an attorney needs expertise as a diagnostician, only that he or she is able to recog­nize the functional capacity required by the substantive law for the

5. HANDBOOK, supra note 3, at 1, 13; see also Smith v. Vice, 641 So. 2d 785, 786 (Ala. 1994) ("Simply stated, if the testator knows his estate and to whom he wishes to give his property and understands that he is executing a will, he has testamentary capacity . . .. A person may execute a valid will, even ifhe or she is not competent to transact ordinary, everyday affairs."); (Cal. Prob. Code § 813(a)(2) ("[p]articipate in [the] treatment decision by means of a rational thought pro­cess."),

6. HANDBOOK, supra note 3, at I 7. MODEL R ULES OF PROF' L CONDuer R. 1.1 (stating that "[a ] lawyer shall provide

competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the repre­sentation."). The ability to recognize and respond to clients with diminished ca­pacily could be viewed as a competency skill.

Representing Clients Who May Have Diminished Capacity 127

client to perform the legal act in question, that she has a process in

place to assess a client's capacity, and she assesses whether the client

has sufficient capacity to act ' There are five steps an elder law attorney should take when con­

sidering whether to represent a client with diminished capacity. First, the attorney must determine whether the client is suffering from dimin­

ished capacity ; the second step is to evaluate whether the client has

sufficient capacity to make a legally sound decision; the third step is to

determine whether the attorney can use techniques to enhance a client's

capacity (of course, these techniques may be useful to all clients, with

or without diminished capacity); fourth, if the client lacks capacity, the attorney should determine whether he should take protective action

pursuant to Rule 1.I4(b); and finally, if required, the attorney should

determine what protective action should be taken.'

I. Defining Diminished Capacity

Model Rule 1.I4(a) explains:

When a client's capacity to make adequately considered deci­

sions in connection with a representation is diminished, whether

because of minority, mental impairment or for some other rea­

son, the lawyer shall, as far as reasonably possible, maintain a

normal client-lawyer relationship with the c1ient. 'o

An adult is presumed competent unless the court declares other­

wisell "The criteria for a finding of incapacity differ among the states,

8. A useful tool for an elder law attorney in accomplishing this is the HAND-BOOK, supra note 3.

9. See also, e.g., HANDBOOK, supra note 3, at 13-19. 10. MODEL RULES OF PROF'L CONDuer R. I. I 4(a)(201 2). II. HANDBOOK, supra note 3, at 5; Still v. BancTrust, 88 So. 3d 845 (Ala. Civ.

App. 20 II); In re Guardianship of Carlsmith, 151 P.3d 692 (Haw. 2006); Schaefer v. Schaefer, 52 P.3d 1125 (Or. Ct. App. 2002); Borenstein v. Simonson, 797 N.Y.S.2d 818 (N. Y. Sup. 2005); see also HANDBOOK, supra note 3, at I. For example, in the Federal Rules of Evidence, individuals are presumed to be competent to be wit­nesses: "Every person is competent to be a witness unless these rules provide otherwise." FED. R. EVID. 60 I.

128 CHAPTER F,VE

but in all states the law starts with the presumption of capacity."" A client's capacity may be questioned when he exhibits strange behav­

iors or if someone expresses concern." Contrary to belief, advanced

age does not equate with dimini shed capacity." In addition, the elder

law attorney must be sure to not substitute his opinion for that of the

client because the attorney believes, paternalistically, that it is in the

client's best interest to do so." For example, a client with a limited

guardian retains the right to make certain decisions unless that right is

removed by the court."

12. HANDBOOK, supra note 3, at 7; see also CAL. PROB. CODE § 810(a} (West 20 II) ("[t]here shall exist a rebuttable presumption affecting the burden of proof that all persons have the capacity to make decisions and to be responsible for their acts or decisions."); CAL. PROB. CODE § 811 ("Deficits in mental function"); CAL. PROB. CODE § 812 ("Capacity to make decisions").

13. For example, the HANDBOOK notes that:

[t]he law generally presumes that adults possess the capacity to under­take any legal task unless they have been adjudicated as incapaci­tated in the context of guardianship or conservatorship, or the party challenging their capacity puts forward sufficient evidence of inca­pacity to meet a requisite burden of proof.

HANDBOOK , supra note 3, at 5. 14. [d. at 7. 15. See REsTATEMENT (THIRD) OFTHE LAW GOVERNING LAWYERS § 24(1} (2000)

("When a client's capacity to make adequately considered decisions in connec­tion with the representation is diminished, whether because of minority, physical illness, mental disability, or other cause, the lawyer must, as far as reasonably possible, maintain a normal client-lawyer relationship with the client and act in the best interests of the client as stated in Subsection (2}."); id. at § 24(2) ("A lawyer representing a client with diminished capacity as described in Subsection (I) and for whom no guardian or other representative is avai lable to act, must, with respect to a matter within the scope of the representation, pursue the lawyer's reasonable view of the client's objectives or interests as the client would define them if able to make adequately considered decisions on the matter, even if the client expresses no wishes or gives contrary instructions,").

16. See also MODEL RULES OF PROF'L CONDUCT R. 1.14 cmt. 2 ("The fact that a client suffers a disability does not diminish the lawyer's obligation to treat the client with attention and respect. Even if the person has a legal representative, the lawyer should as far as possible accord the represented person the status of client, particu­larlyin maintaining communication."); id. at COlt. 4 ("[I]f a legal representative has already been appointed for the client, the lawyer should ordinarily look to the representative for decisions on behalf of the client.").

Representing Clients Who May Have Diminished Capacity 129

To better understand diminished capacity, attorneys should famil­iarize themselves with the various definitions of capacity. Although no definition is found in the Model Rules, Rule 1.14(a) provides guide­lines by establishing that " [w]hen [the] client's capacity to make ad­equately considered deci sions in connection with a representation is diminished . .. , [the attorney must,] as far as reasonably possible, [keep] a normal client-lawyer relationship with the client."" At this point, the attorney needs to determine what "normal" means in this context. A normal relationship is established when the client is able to define the scope of representation under Model Rule 1.2. The attorney must satisfy the core values of the attorney/client relationship, includ­ing: communication with the client (Rule 1.4); confidentiality (Rule 1.6); the client's ability to give informed consent (Rule 1.2); and fi­nally, the attorney's commitment to the client (Rule 1.7). " According to comment I to Model Rule 1.14:

The normal client-lawyer relationship is based on the assump­tion that the client, when properly advised and assisted, is ca­pable of making decisions about important matters. When the client .. . suffers from a diminished mental capacity, however, maintaining the ordinary client-lawyer relationship may not be possible in all respects. In particular, a severely incapacitated person may have no power to make legally binding decisions. Nevertheless, a client with diminished capacity often has the ability to understand, deliberate upon, and reach conclusions about matters affecting the client's own well-being .. . . So also, it is recognized that some persons of advanced age can be quite capable of handling routine financial matters while needing special legal protection concerning major transactions. 19

17. [d. at R 1.14(a). 18. See also NAELA Aspirational Standard E.I provides "[t]he Elder Law

Attorney ... [r]espects the client's autonomy and right to confidentiality even with the onset of diminished capacity."

19. MOOELRuLEsoFPRor'LCoNoucr RI.I4cmt.l;seealsoConn.BarAss'n Comm. on Prof'l Ethics, Personal Injury Case Where an Adult Client May Be Impaired, Conn. Informal Ethics Op. 97-19, 1997 WL 700686 (July 22, 1997) (discussing normal client-attorney relationship): I GEOFFREY C. HAZARD, W. WILL­IAM HOOES & PITER R JARVIS, THE LAW OF LAWYERING 18-8-18-12 (3d ed. 20 II).

130 CHAPTER F IVE

The NAELA Aspirational Standard E.l describes it this way: "At­torneys have special ethical responsibilities when representing clients whose capacity for making decisions may be diminished. Clients with diminished capacity are entitled to the same respect and attention as any other client."20

Although the Model Rules provide no definition of capacity, the current version is significantly more helpful than the previous one." Nevertheless, other sources must be considered to define capacity. Black's Law Dictionary defines capacity as:

[t]he power to create or enter into a legal relation under the same circumstances in which a normal person would have the power to create or enter into such a relation; specif[ically], the satisfaction of a legal qualification, such as legal age or sound­ness of mind, that determines one's ability to sue or be sued, to enter into a binding contract, and the like ... .'2

Additionally, the Uniform Guardianship and Protective Proceed-ings Act defines a person who is incapacitated as:

an individual who ... is unable to receive and evaluate infor­mation or make or communicate decisions to such an extent that the individual lacks the abi lity to meet essential require­ments for physical health, safety, or self-care, even with appro­priate technological assistance."

The client capacity determination should be made while consider­ing whether the client has the capacity to retain the attorney and make sound legal deci sions." Thus, the attorney must understand capacity issues to effectively represent the client, and be knowledgeable enough to fulfill her obligation to the client in strict accordance to the rules and standards set forth Rule 1.14.

20. NAELAAspirational Standard E.1 , cmt. at 19, citing /0 MODEL RULES OF I'ROF'LCONDUcrR. 1.14.

21. Some states, such as Florida, have not adopted the revisions to Rule 1.14 and use the prior version that provides less guidance than the current Rule 1.14.

22. BLACK'S LAW DIcrIONARY (Bryan A. Gamer ed. , 9th ed. 2009) (avai lable on Westlaw).

23 . Unif. Guardianship and Protective Proc. Act § 102(5) (1997). 24. HANDBOOK, supra note 3, at 13. But see In re Guardianship of Holly, 164 P.3d

137, 144 n.7 (Okla. 2007) ("fmding that a ward lacks the capacity to prefer one attorney over another should not be [made] lightly [but] based on a meaningful evidentiary hearing").

Representing Clients Who May Have Diminished Capacity 131

NABLA Aspirational Standard B.2 provides that the elder law at­torney "[d)evelops and utilizes appropriate ski lls and processes for making and documenting preliminary assessments of client capacity to undertake the specific legal matters at hand.""

Attorneys should take direction from and represent the client's wi shes as fully as the client's capacity permits. If the client 's decision-making capacity is impaired, the attorney should main­tain as normal a relationship with the client as possible.

For example, the attorney should develop strategies and skills to understand and communicate with such clients by using dif­ferent interviewing techniques, varying the time and location of the interview, etc . ... The attorney should follow a consistent and deliberate process to preliminarily screen clients for capac­ity. The attorney should document the observations that support the attorney's conclusion that capacity is an issue. A number of different tests may be used to assess capacity. The attorney's process should be followed and documented in every file . .. 26

It is important for the attorney to understand that capacity may fluctuate, and is not always static. As noted earlier, "a client with di­minished capacity often has the ability to understand, deliberate upon, and reach conclusions about matters affecting the client's own well­being .... [I)t is recognized that some persons of advanced age can be quite capable of handling routine financial matters while needing spe­cial legal protection concerning major transactions."" Some clients

25. NAELA Aspirational Standard E.2. 26. [d. at cmt. at 20-21. The comment notes that "[tlhe intelligence, experi­

ence, mental condition, and age of the client affect the attorney's responsibilities to the client" and recognizes the varying legal standards depending on the action to be taken:

The attorney may evaluate client competency by either a legal or a medical standard, or even a combination of standards and methods. The law recognizes numerous legal standards of competency_ One legal standard is the capacity to enter into a contract. A different legal standard is the capacity to execute a will. A third legal standard is the lack of capacity that subjects one to commitment or guardianship. A number of factors should be considered, including the kind of deci ­sion to be made and the applicable legal standard.

[d. at 21 (citations omitted). 27. MODELRuLESOrPRoF'LCoNDucrR. 1.14cmt.1.

132 CHAPTER F IVE

may be more lucid at certain times of the day." Thus, under comment I to Rule 1.14, some clients-especially those of advanced age-may be able to grasp the routine nature of the legal representation, but struggle to grasp many details.

Keep in mind that the level of capacity required may vary depend­ing on the legal acti on to be undertaken." There are steps that the attorney can take to "improve the comprehension and decision-mak­ing ability of a person with diminished capacity."JO It is important that the elder law attorney be consistent in his communication with clients who may have diminished capacity.

The attorney should follow a consistent and deliberate process to preliminarily screen clients for capacity. The attorney should document the observations that support the attorney's conclu­sion that capacity is an issue. A number of different tests may be used to assess capacity. The attorney's process should be followed and documented in every file. 3I

The elder law attorney must also have a clear understanding of the difference between diminished capacity and simply erratic behavior. Clients may be "eccentric"" yet still possess the capacity to make in-

28. The phenomenon of "sundowning" should be very familiar to elder law attorneys. It refers to the fact that some elderly people begin to decline in mental capabilities as the day moves into late afternoon . See Robert Fleming & Rebecca Morgan , Lawyers' Ethical Dilemmas: A "Normal" Relationship When Represent­ing Demellted Clients alld Their Families, 35 GA. L. REV. 735, 776 n. 100 (2001); see also GLENN SMITH, PH.D. SUNDOWNING: LATE-DAY CONFUS ION, http :// www.mayoclinic.comlhealthisundowninglHQOI463 (last visited July 4, 2012).

29. See HANDBOOK, supra note 3, at 5-7; see also In re Estate of Hastings, 387 A.2d 865, 868 (Pa. 1978) ("Less capacity is needed to make a valid will than is necessary to transact ordinary business." (citations omitted)); see also H ANDBOOK,

supra note 3, at 5 (noting, "On the one hand, our legal system has always recog­nized situation-specific standards of capacity, depending on the particular event or transaction-such as capacity to make a will, marry, enter into a contract, vote, drive a car, stand trial in a criminal prosecution, and so on," citing to John Parry, Decision·Making Rights over Persons and Property, in THE MENTALLY D1SABLED AND

THE LAW 435 (Samuel J. Brakel et a!. eds., 3d ed.1985)). 30. NAELA AsPIRATIONAL STANDARD E.I cmt. at 20. 31. Id. at Standard E.2 cmt. at 20- 21 (citations omitted). 32. Merriam-Webster Online defines an eccentric as "a person who behaves

in odd or unusual ways." MERR,AM-WEBSTER'S COLLEGIATE D,CT,ONARY (II th ed. 2003), available at http://www.merriam-webster.comidictionary/eccentric[2J.

Representing Clients Who May Have Diminished Capacity 133

formed decisions. Unfortunately, a client's unusual actions or deci­sions may be judged differently based on the client's age. To preclude this bias, the attorney should determine the capacity of the client ac­cording to legal guidelines, regardless of whether she agrees with the client ' s actions or decisions." Consequently, it is essential that the eI­der law attorney respect the client's autonomy. To be sure , all adults have the potential to make "bad" decisions, but the attorney must be careful not to mi sconstrue this as evidence of a client's diminished capacity. Indeed, the client who merely exercises poor judgment, or exhibits forgetfu lness, should not be presumed to lack capacity."

Why is it that ethical is sues related to dimini shed capacity are more compelling than other ethical issues faced by attorneys? In deal­ing with clients with diminished capacity, the elder law attorney is

required to consider how the ethical issues, substantive law, and the client's medical iss ues intersect with the social and psychological concerns of the client. The NAELA Aspirational Standards refer to a holistic approach to representation." As a result, it is impossible to craft ethics rules that can provide more than general guidance. 36 It is the attorney's responsibility to determine whether her client has suf­ficient capacity to make complex legal decisions." One California

33. In re Link, 713 S. W.2d 487, 496 (Mo. 1986)(noting that "to the extent an affected individual appropriately understands what is at stake and expresses a desire to waive or exercise a particular right, that desire must be honored. even if counsel disagrees with the wisdom of the choice."); Fla. Bar v. Betts, 530 So. 2d 928, 929 (Fla. 1988) ("a lawyer's responsibility is to execute his client's wishes ... "); see also HANDBOOK, supra note 3, at 14; ACTEC Commentary to R. 114 at 134.

34. See also NAELA Aspirational Standard E.2 cmt. at 22 ("The attorney should also distinguish between incapacity and the inability to remember. The fact that a client does not remember a decision does not mean that the client did not have the capacity to make the decision at the time it was made.").

35. Id. at Standard D.2. 36. The current version of Model Rule 1.14 is much improved overthe prior

version and provides helpful guidance, but not all states have adopted the current version.

37. See HANDBOOK, supra note 3, at I ("[tlhe lawyer must evaluate the client's legal capacity to carry out the specific legal transactions ... "); see also H ANDBOOK at 6; Vignes v. Weiskopf, 42 So. 2d 84, 86 (Fla. 149):

We are convinced that the lawyer should have complied as nearly as he could with the testator's request, should have exposed the true situation to the court, which he did, and should have then left the

134 C HAPTER F IVE

ethics opinion38 stated that "a lawyer must be satisfied that the client is competent to make a will and is not acting as a result of fraud or undue influence.""

The attorney should schedule an extended interview with the client without any interested parties present and keep a de­tailed and complete record of that interview. If the lawyer is not satisfied that the client has sufficient capacity and is free of undue influence and fraud, no will should be prepared . The attorney may simply decline to act and permit the client to seek other counselor may recommend the immediate initiation of a conservatorship'·

It is important to note that making a determination about a client's capacity is not the same as "diagnosing" the client. The attorney's role is not to diagnose hi s client's condition; he is simply evaluating the client's capacity to make informed legal decisions.

II. Assessing Diminished Capacity

How does an attorney distinguish diminished capacity from a tendency toward forgetfulness and inferior decision-making skills? Look at com­ment 6 to Model Rule 1.14, which suggests the following criteria:

In determining the extent of the client's diminished capacity, the lawyer should consider and balance such factors as: the client's ability to articulate reasoning leading to a decision, variability of state of mind and ability to appreciate consequences of a deci-

matter to that tribunal to decide whether in view of all facts surround­ing the execution of the codicil it should be admitted to probate.

Had the attorney arrogated to himselfthe power and responsibility of determining the capacity of the testator, decided he was incapaci­tated, and departed, he would indeed have been subjected to severe criticism when, after the testator's death, it was discovered that be­cause of his presumptuousness the last-minute effort of a dying man to change his will had been thwarted.

Vignes, 42 So. 2d at 86. See also ACTEC Commentary to R.1.I4 at 131- 35. 38. San Diego Ethics Op. 1990-3 (1990). See also ACTEC Commentary to

R.1.l4atI37. 39. San Diego Ethics Op . 1990-3 (citations omitted). 40. [d. (citations omitted).

Representing Clients Who May Have Diminished Capacity 135

sion; the substantive fairness of a decision; and the consistency of a decision with the known long-term commitments and val­ues of the client. In appropriate circumstances, the lawyer may seek guidance from an appropriate diagnostician."

Again, keep in mind that a lawyer's assessment of a client's capac­ity is vastly different from a medical expert's diagnosis of a patient's condition. Where the doctor diagnoses an illness, the attorney assesses whether the client has demonstrated the ability to make a sound legal decision. The NAELA Aspirational Standard E.2 describes the attorney's role in the following way: "[dlevelops and utilizes appropriate skills and processes for making and documenting preliminary assessments of client capacity to undertake the specific legal matters at hand.""

The seminal resource for assessing dimini shed capacity is the American Bar Association-American Psychological Association manual , Assessment of Older Adults with Diminished Capacity: A

41. MODEL RULES PROF'LCONDUcr R. 1.14 cmt. 6; see CAL. PROB. CODE § 811 (setting out examples of mental function); see also, e.g. , Conn. Bar Ass ' n Comm. on Prof' l Ethics, lnformal Op. 98- 17 (July 29, 1998) (discussing, among other things, when rule would allow attorney to contact doctor when).

42. NAELA Aspirational Standard E.2. The comment discusses this further:

Attorneys should take direction from and represent the client's wishes as fully as the client's capacity permits. If the client's decision-making capacity is impaired, the attorney should maintain as normal a rela­tionship with the client as possible.

For example, the attorney should develop strategies and skills to understand and communicate with such clients by using different inter­viewing techniques, varying the time and location of the interview, etc.

Depending on the degree of capacity, a client may have the abil­ity to perform some tasks but not others. The attorney should follow a consistent and deliberate process to preliminarily screen clients for capacity. The attorney should document the observations that support the attorney's conclusion that capacity is an issue. A number of differ­ent tests may be used to assess capacity. The attorney's process should be followed and documented in every file.

The intelligence, experience, mental condition, and age of the client affect the attorney's responsibilities to the client. ... A number of factors should be considered, including the kind of decision to be made and the applicable legal standard.

[d. at Standard E.2 cmt. at 20-21 (citations omitted).

136 CHAPTER F ,VE

Handbook for Lawyers.4' According to the Handbook, the lawyer should incorporate Model Rule 1.14 comment 6 with her state 's stan­dard for determining capacity" The attorney should have a process in place to assess the client's capacity.

As noted in the Handbook , the attorney 's process is in no way equivalent to the use of a psychological instrument or tool to do so. An attorney should refrain from administering one of these capacity "tests" unless he has been trained to do so. The Handbook provides six reasons why an attorney should not administer "formal clinical assessments":45

1. Attorneys are not trained to use these assessment tools; 2. The test results are of limited use to an attorney; 3. There is always risk in attaching too much significance to the

results of one test; 4. There is always the possibility that the test may produce inac­

curate results: 5. The results may vary if the client takes the test multiple times;

and 6. The test results may prove to be irrelevant to the case at hand.

How does the attorney establish a process to analyze the capacity of a client? The Handbook references the "capacity factors" in comment 6 of Rule 1.14 that may be helpful to the attorney in a "task-specific as­sessment."" Regardless of the process used, it is important to keep in mind the two "t's" when judging the client's capacity: time and talk. Time is self-explanatory; the attorney may need to spend a substantial amount of time with the client to gather the necessary facts. Addition-

43. H ANDBOOK, supra note 3, at 8. 44. Id. (listing the "capacity factors" from Rule 1.14 cmt. 6 as the following:

c lient's ability to articulate reasoning leading to a decision . .. [v]ariability of state of mind ... [a]bility to appreciate consequences of a decision . .. substantive fairness of a decision . .. consistency of a decision with the known long-tenn commitments and values of the client.

45. HANDBOOK, supra note 3, at 21-22; see also Charles P. Sabatino, Repre­senting a Client with Diminished Capacity: How Do You Know It and What Do You Do AboutIt? 16J. AM. ACAD. MATRIM. L. 481 (2000).

46. See also HANDBOOK, supra note 3, at 19.

Representing Clients Who May Have Diminished Capacity 137

ally, when the client talks, the attorney needs to listen attentively. He

must be diligent in gathering information and making judgments.

The attorney must discuss his concerns with the client. Comment 3

to Rule 1.14 suggests that in some circumstances the presence of other

individuals, including the client's family, may be helpful.47 Finally, the

steps the attorney takes to assess the client's capacity should integrate

unobtrusively into the interview'S It is important for the attorney to

plan this ahead of time, have a process in place to make the determina­

tion , document all informatio n in the client's file , and be consistent in

the method used to determine a c lient ' s capacity."

Further, if the attorney needs additional support, he "may seek guid­ance from an appropriate diagnostician ."'· Although comment 6 to

Rule 1.14 fails to define "appropriate," the diagnostician should be a

professional with expertise in the appropriate field. In this case, the

attorney may choose to discu ss his concerns about the client with a

clinician or diagnostician." The type of conversation the attorney will

47. MODEL RULES OF PROF'L. CONDUCT R. 1.1 4 cmt. 3 provides:

The client may wish to have family members or other persons partici­pate in discussions with the lawyer. When necessary to assist in the representation, the presence of such persons generally does not affect the applicability of the attorney-client evidentiary privilege. Never­theless, the lawyer muSt keep the client's interests joremost and, ex­cept for protective action authorized under paragraph (b), must to look to the cliellt, and not family members, to make decisions on the elielll's behalf.

(Emphasis added). 48. See, e.g., HANDBOOK, supra note 3, at 13-22. 49. See NABLA Aspirational Standard E.2 ("Develops and utilizes appropri­

ate skills and processes for making and documenting preliminary assessments of client capacity to undertake the specific legal matters at hand.").

50. MODEL RULES OF PROF'L CONDUCT R. 1.14 cmt. 6. 51. HANDBOOK, supra note 3, at 32 (discussing how a clinician is better because

"the process of capacity assessment involves more than a diagnosis, especially with the move away from merely making a diagnosis to describing cognitive and func­tional abilities"); MODEL RULES OF PROF'L CONDUCT R. 1.14 cmt. 6. It is important to note that any conversation with a diagnostician would remain confidential and privileged as it would be a conversation that is necessary to the representation. See Chapter 3 on privileged communications. See also State Bar Ass'n of N.D. Ethics Comm. Op. 2000-06 (2000) (discussing North Dakota Rule 1.14 and circum­stances when limited disclosure authorized).

138 CHAPTER F IVE

have with this diagnostician will determine whether the client's con­sent is required: a "formal" conversation in which the identity of the client is revealed, a hypothetical conversation in which the identity of the client is not revealed, and, finally, whether this discussion is a pre­cursor to a referral." When the attorney needs to determine "the extent of the client's diminished capacity," "seek[ing] guidance from an ap­propriate diagnostician" is "authorized" by comment 6 to Rule 1.14." Model Rule 1.14(c) covers this limited disclosure:

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."

The ACTEC Commentaries recognize the challenges in the use of disclosure by noting:

However, in deciding whether others should be consulted, the lawyer should also consider the client's wi shes, the impact of the lawyer's actions on potential challenges to the client's es­tate plan, and the impact on the lawyer's ability to maintain the client's confidential information. In determining whether to act and in determining what action to take on behalf of a client, the lawyer should consider the impact a particular course of action could have on the client, including the client's right to privacy and the client's physical, mental and emotional well-being."

52. See HANDBOOK, supra note 3, at 31 - 36. 53. See discussion infra, at V. But see Lovett v. Estate of Lovett, 593 A.2d

382,386 (N.J. Super. Chane. Div. 1991) ("client ... evaluated as a prerequisite to signing legal documents ... rare").

54. MODEL RULES OF PROF'L CONouer R. 1.I4(c); see also, e.g .. Pa. Bar Ass ' n Comm. on Legal Ethics & Prof' I Responsibility, Informal Op. 2002-52, 2002 WL 32077996 (discussing whether attorney may release POA to agent despite client 's earlier directions if attorney believes "client cannot . . . protect her financial interests").

55. ACTECCommentarytoR.1.14,atI31.

Representing Clients Who May Have Diminished Capacity 139

III. Maximizing a Client's Capacity

Elder law attorneys need to be certain that the requirements of Rule 1.14 are met, but must also consider whether steps can be taken to maximize a client's capacity, and thus preserve her autonomy and decision-making ability. This section will review the steps an attor­ney can take to maximize a client's capacity for legal representation. A client's capacity may be improved by adjusting for physical limita­tions and developing effective interview techniques." To facilitate effective communication, the attorney should create an environment in which the client feels comfortable. Rule 1.4 of the Model Rules requires that the attorney effectively communicate with clients and provide them with the information they need to make informed deci­sions." The point is that the attorney needs to communicate as effec­tively as possible and should be guided by the client's needs . The interview process for the elderly client must be specifically tailored for the individual; the elder law practice is not a "one size fits all" process. A vast amount of information is available to the attorney in this area, with topics ranging from effective communication to creat­ing an "elder-friendly law office."" For the elder law attorney thi s information is essential to the competent practice of law.

56. The comment to NAELA Aspirational Standard E. I notes:

capacity exists on a continuum, and is nonnally not an all -Dr-nothing proposition. Clients may have the ability to make some decisions but not others. Certain strategies can improve the comprehension and de­cision-making ability of a person with diminished capacity. As de­scribed in the commentary to Standard E.3, if a third party is present (with the client's consent), the attorney should talk to the client to avoid any tendency of ignoring the client during the interview. Even if the client has authorized or instructed the attorney to communicate with a third party, such as the client's agent, the attorney should sti ll keep the client informed by providing the client with copies of com­munications or by speaking directly with the client.

NAELA Aspirational Standard E.I cmt. at 19-20 (citations omitted). 57. MODEL RULES OF PROF'L CONDUCT R. 1.4. The suggestions in Section III of

this chapter can be used for and be useful with all clients, regardless of capacity. 58. See generally Rebecca C. Morgan, From the Elder-Friendly Law Office to

the Elder-Friendly Courtroom: Providing the Same Access and Justice for All, 2 NAELA J. 325 (2006); see also HANDBOOK, supra note 3, at 27-30. Stetson University

140 CHAPTER F ,VE

NAELA Aspirational Standard E.3 addresses the interviewing tech-niques that may be used to heighten the client's capacity:

The Elder Law attorney ... [aldapts the interview environ­ment, timing of meetings, communications and decision-mak­ing processes to maximize the client's capacities"

The comment to this standard identifies steps such as:

[Clhanging the time and location of meetings, shortening the length of the interview, breaking the interview into a series of short interviews conducted over a period of time, using a differ­ent communication style, using visual aids, changing the amount of information provided to the client, and changing the process of reaching a decision, in order to maximize the client's ability to participate in the representation and to make decisions. Gradual counseling Ca series of shorter interviews) may by itself over­come any deficiency in the client's decision-making capacity. Other techniques, such as conducting the interview in the client's home, or in the afternoon instead of the moming may be needed. The interview should be conducted in the client's primary lan­guage. In order to maximize the client's autonomy, these inter­viewing techniques should be tried before concluding that the client lacks capacity or needs protective action.60

This last point bears repeating. Obviously, the comment promotes techniques that may be used to overcome the limitations of diminished capacity, and also addresses situations in which protective action should be taken under Rule 1.14."

Initially, the elder law attorney needs to determine whether the cli­ent has physical limitations that may impede representation. The client may be experiencing vision or hearing loss, have physical limitations, or struggle with the activities of daily living. The next step is to ensure that the office is "elder-friendly" and designed to maximize communi­cation. All attorneys should consider how the physical environment of

College of Law also has infonnation about its elder-friendly courtroom on its website, http://www.law.stelSon.edu/aeademics/elderlhome/eleazer-eourtroom. php.

59. NAELA AsPlRA1l0NAL STANDARD E.3 at22. 60. [d. at em!s. at 22 (citations omitted). 61. !d.

Representing Clients Who May Have Diminished Capacity 141

their law offices should be designed to accommodate the elderly client who has physical limitations.62

For example, a client suffering from hearing loss may respond in­correctly to a question he cannot hear. For various reasons, the client may not admit to having a hearing loss. The attorney should take steps to ensure that the client can hear the conversation. In this case, the attorney might want to consider the volume of background noise in the office. Music, and even office equipment, can be noisy and create a barrier to effective communication. When the client is in the office, music should be turned off. The attorney should sit facing the client and may even need to sit next to the client. The client must be able to see the attorney's mouth at all times while the attorney is speaking.63

If a client is visually impaired, the attorney should be certain there is adequate lighting in the office. When creating documents, the attor­ney should use non-glare paper and larger fonts to compensate for the disability." If the visual impairment is severe enough to affect the client's ability to read, there is software available that will read a docu­ment out loud, or the document may be read to the client.

Clients may have problems with memory or comprehension, so the attorney should take that into consideration. Memory loss by itself does not automatically mean incapacity. The attorney must gauge the client's mood; she may be nervous, tired, or unhappy to be at the attorney's office. Additionally, the client may be in crisis , which can affect her comprehension and ability to focus on and understand the attorney's advice. Useful tools to enhance communication may include breaking information into smaller increments , avoiding legalese, us­ing visual aids, giving the client checkli sts or documents to take home to review, asking the client to repeat what the attorney just said (reflec­tive listening)," and scheduling interviews that are shorter in duration

62. See Morgan, supra note 58, at 328-33; see also H ANDBOO K, supra note 3, aI27-28.

63. For a discussion of steps an attorney can take to maximize a client's hearing, see generally Morgan, supra note 58, at 328- 33.

64. See also Morgan, supra nole 58, a1332; and H ANDBOOK, supra nole 3, a128. 65. Refleclive listening can be described as active listening and being able

to "reconstruct what the client is thinking and feeling and to relay this under­standing back to the client." Lara Lynn Lane, Reflective Listening, GALE ENCY. OF

P SYC H. (2d ed. 200 I), available at www.encyclopedia. com/doc/162-3406000543.html.

142 CHAPTER FIVE

but occur more often." If the client seems confused or does not under­stand the proceedings, the attorney should determine whether the fail­ure to communicate belongs to him-and then move to correct the situation-before assuming that the client is incapacitated.

When scheduling the interview, the time of day and the length of the interview can be relevant. Some individuals suffering from demen­tia may be more mentally receptive at certain times of the day than others" The attention span can vary from person to person, so the attorney needs to consider the length of the interview as well as the time of day. Frequent breaks might help, and providing refreshments

can keep the client focused and energized. The client's personal life may also affect his capacity and compre­

hension. When a client is experiencing a loss, suffering from medical problems, or taking medications, the possibility exists that he may be depressed. Any of these issues can affect a client's ability to compre­hend, and the attorney must not assume that the client lacks capacity."

The ACTEC Commentaries describe the attorney's role U[i]n deter­mining whether a client's capacity is diminished" and suggest that the elder law attorney "may consider the client's overall circumstances and abilities, including the client's ability to express the reasons [for the] decision, ... to understand [its] consequences ... , [its] substan­tive appropriateness ... , and the extent [it] is consistent with the client's

values, long-term goals and commitments ."" If the elder law attorney has observed signs of diminishing capacity, he should take steps to maximize his client's capacity. The attorney should be confident in his client's ability to make a sound decision, and then refrain from criticiz­ing that decision, even if he does not agree.70 If the confusion is not

66. See, e.g., HANDBOOK, supra note 3, at 29. 67. Id. The Mayo Clinic defines "sundowning" as "a state of confusion at the

end of the day and into the night." Smith, supra note 28. 68. See, e.g., HANDBOOK, supra note 3, at 16- 17. 69. ACTEC Commentary to R. 1.14 , at 132; see also, e.g., CAL. PROB. CODE

§ 811 (lack of capacity supported by evidence of diminished mental function). 70. HANDBOOK, supra note 3, at 13 (providing that "[tlhere is no single indicator

that provides a consistent, clear signal that an older adult is functioning with dimin­ished capacity. However, there are markers that, when considered together, may reflect diminished capacity. These signs should not be taken in and of themselves to be proof of diminished capacity. Instead, they may indicate a need for further evalu­ation of capacity by an independent professional if the signs are present in sufficient number andlor severity. In noting potential signs of incapacity, it is important to

Representing Clients Who May Have Diminished Capacity 143

caused by the attorney' s failure to communicate with the client, then it is possible that health or personal issues may be at fault.

The lawyer should inquire about the client's mood and demeanor. This may be easier done with a returning client than with a new cli­ent.7

! Model Rule 1.14(a) states that even when the attorney has con­cerns about a client, she should not forget that "[w]hen a client's capacity to make adequately considered decisions in connection with a repre­sentation is diminished," then the attorney "shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client.""

Finding that the client has diminished capacity does not ensure that criteria established in Rule 1.14(b) will be met." Rule 1.14 indicates that even if diminished capacity does exist, the attorney must further deter­mine whether protective actions are necessary and when possible, the attorney must maintain as normal a relationship as possible.

There are five components to a typical client-attorney relationship: client control andlor autonomy (Rule 1.2), communication (Rule 1.4), confidentiality (Rule 1.6), loyalty (Rules 1.7 and 1.9) and client capac­ity (Rule l.l4) . According to comment I to Rule l.l4,

The normal client-lawyer relationship is based on the assump­tion that the client, when properly advised and assisted, is ca­pable of making decisions about important matters. When the client .. . suffers from a diminished mental capacity, however, maintaining the ordinary client-lawyer relationship may not be possible in all respects. In particular, a severely incapacitated person may have no power to make legally binding deci sions. Nevertheless, a client with diminished capacity often has the

keep in mind that the focus is on decisional abilities rather than on cooperative­ness or affability. It may be challenging to disentangle one's reactions to a client 's interpersonal style from observations of the client's cognitive, emotional. or be­havioral problems.").

7 1. [d. at 13-14. 72. MODEL R ULES OF PROF'L. CONDuer R. 1.14(a). 73. "When the lawyer reasonably believes that the client has diminished

capacity, is at ri sk of substantial physical, financial or other hann 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." [d. at R. 1.14(b).

144 CHAPTER F IVE

ability to understand , deliberate upon, and reach conclusions about matters affecting the client's own well-being . .. . So also, it is recognized that some persons of advanced age can be quite capable of handling routine financial matters while needing special legal protection concerning major transactions.74

Maintaining a normal client-attorney relationship supports client control and autonomy. NAELA Aspirational Standard E.l provides that an elder law attorney "[r]espects the client' s autonomy and right to confidentiality even with the onset of diminished capacity."" Accord­ing to the comments to Standard E.l,

[a]ttorneys have special ethical responsibilities when represent-ing clients whose capacity for making decisions may be dimin­ished. Clients with diminished capacity are entitled to the same respect and attention as any other client. Capacity exists on a continuum, and is normally not an all-or-nothing proposition. Clients may have the ability to make some decisions but not others. Certain strategies can improve the comprehension and decision-making ability of a person with diminished capacity.'6

Model Rule 1.2 sets forth an objective-means test in which the client determines the objectives of the representation while the attor­ney determines the means to accomplish the objectives." Comment 4 to Rule 1.2 tempers this somewhat by noting that "[i]n a case in which the client appears to be suffering diminished capacity, the lawyer's duty to abide by the client's decisions is to be guided by reference to Rule 1.14.""

Communication is an integral part of a normal client-attorney rela-tionship. Rule 1.4 authorizes the attorney to, among other things,

74. [d. at R. 1.14 cmt. I. 75. NAELA ASPlRATIONAL STANDARD E.I , at 19. 76. [d. at cmts. at 19- 20 (citations omitted). 77. MODEL RULES OF PROF'L CONDUCT R. 1.2(a) provides that:

Subject to paragraphs (c) and (d), a lawyer shall abide by a client's decisions concerning the objectives of representation and. as required by Rule 1.4, shall consult with the client as to the means by which they are to be pursued. A lawyer may take such action on behalf of the client as is impliedly authorized to carry out the representation. A lawyer shall abide by a client's decision whether to settle a matter.

78. [d. at R. 1.2 cmt. 4.

Representing Clients Who May Have Diminished Capacity 145

promptly inform the client of any decision or circumstance with respect to which the client's informed consent . .. is required by [these] Rules ; .. . reasonably consult with the client about the means by which the client's objectives are to be accom­plished; .. . keep the client reasonably informed about the sta-tus of the matter; ... promptly comply with reasonable requests for information . .. 79

and to "explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation."" Attor­neys should recognize that they may need to use different techniques to maintain a normal relationship and effectively communicate" with cli-

79. Id. at R. 1.4(a). 80. Id. atR. 1.4(b) . 81. As a side note, planning for loss of capacity is routinely discussed with

clients in an elder law practice. The planning should include preparing docu­ments that authorize the attorney 10 communicate with designated parties if con­cerns regarding capacity should arise. While these discussions protect the attorney, they also allow him to pursue other protective actions and avoid guardianship. The ACTEC Commentary to Rule 1.14 suggests that:

[a]8 a matter of routine, the lawyer who represents a competent adult in estate planning matters should provide the client with information regard­ing the devices the client could employ to protect his or her interests in the event of diminished capacity, including ways the client could avoid the necess ity of a guardianship or similar proceeding. Thus, as a service to a client, the lawyer should inform the client regarding the costs, advantages and disadvantages of durable powers of attorney, directives to physicians or living wills, health care proxies, and revocable trusts. A lawyer may properly suggest that a competent client consider executing a letter or other document that would authorize the lawyer to communicate to desig­nated parties (e.g., fami ly members, health care providers, a court) concerns that the lawyer might have regarding the cl ient's capacity. In addition, a lawyer may properly suggest that a durable power of attorney authorize the attorney-in-fact, on behalf of the principal, to give written authorization to one or more of the client's health care providers and to disclose informa­tion for such purposes upon such terms as provided in such authorization, including health information regarding the principal, that might otherwise be protected against disclosure by the Health Insurance Portability and Accountability Act of 1996 (HlPAA).lf the client wishes the durable power of attorney to become effective at a date when the client is unable to act for him- or herself, the lawyer should consider how to draft that power in light of the restrictions found in HlPAA.

ACTEC Commentary to R. 1.14, at 13 1.

146 C HAPTER FIVE

ents who may have diminished capacity. Two comments to Rule 1.4 offer some guidance. Comment 6 identifies the type of information the client should receive: "[o]rdinarily, the information to be provided is that appropriate for a client who is a comprehending and responsible adult. However, fully informing the client according to this standard may be impracticable, for example, where the client . .. suffers from diminished capacity."" Additionally, there is the suggestion that, "[i]n some circumstances, a lawyer may be justified in delaying transmission of information when the client would be likely to react imprudently to an immediate communication. Thus, a lawyer might withhold a psychiatric diagnosis of a client when the examining psychiatrist indicates that dis­closure would harm the client."" In some cases, it may be helpful for the client to have a friend or relative present during the discussion." Even when the client "has a legal representative, the lawyer should as far as possible accord the represented person the status of client, particularly in mai ntaining communication."" As mentioned earlier, in NAELA Aspirational Standard E.l, "[t]he Elder Law Attorney ... [r]espects the client's autonomy and right to confidentiality even with the onset of dimini shed capaci ty." ' · The comment to the standard notes th at " [a]ttorneys have special ethical responsibilities when representing cli­ents whose capaci ty for making decisions may be diminished. Clients with diminished capacity are entitled to the same respect and attention as any other client."" As comment 8 to Rule 1.14 notes, "[t]he lawyer's position in such cases is an unavoidably difficult one."88

82. MODEL RULES OF PROF'L CONDuer R. 1.4 cmt. 6. 83. The comment goes on to provide that "[aJ lawyer may not withhold

information to serve the lawyer's own interest or convenience or the interests or convenience of another person ." [d. at emt. 7.

84. MODEL RULES OF PROF'L CONDuer R. 1.14, cmt. 3 provides that:

[tJhe client may wish to have family members or other persons partici­pate in discussions with the lawyer. When necessary to assist in the representation, the presence of such persons generally does not affect the applicability of the attorney·d ient evidentiary privilege. Neverthe­less, the lawyer must keep the client's interests foremost and, except for protective action authorized under paragraph (b), must to look to the client, and not family members, to make decisions on the client 's behalf.

85. Id. atR. J.J4 cmt. 2. 86. NAELA Aspirational Standard E. I at 19. 87. Id. at cmt. (citations omitted) . 88. MODEL RULF-S orPOOF'LCoNDuer R. 1.14 cmt. 8.

Representing Clients Who May Have Diminished Capacity 147

Confidentiality" and 10yalty90 are also components of a normal attorney-client relationship, and may need to be modified when deal­ing with a client with diminished capacity' I

Remember that Model Rule L4(b) requires the lawyer to "explain a matter to the extent ... necessary to permit [a] client to make [an] informed decision." Diminished capacity is a complicated issue, and it should be discussed with the client and then documented in the attorney's file in case a capacity issue develops in the future.

IV. Criteria for Taking Protective Action

If the client has diminished capacity and satisfies the requirements of Rule 1.I4(b), the attorney can take protective action. Rule 1.14(b) pro­vides that:

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."

Further, as mentioned earlier, under Rule 1.14(c) the attorney is authorized to reveal confidential information:

[I]nformation relating to the representation of a client with di­mini shed 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"

89. 90. 91. 92. 93.

18-18.

/d. at R. 1.14(c). See Chapter 3 for a full discussion on confidentiality. See Chapter 4 for a discussion of conflicts of interest. See MODEL RULES OF PROF'L CONDUcr R. 1.14 & cmts. ld. at R. 1.14(b). ld. at R. 1.14(c); see also HAZARD, HODES & JARVIS, supra note 19, at 18-17-

148 CHAPTER F IVE

Information must be disclosed with caution because of the poten­tial impact on the client.'" In regard to the potential negative impact of disclosures, comment 8 to Rule 1.14 directs:

[aJt the very least, the lawyer should determine whether it is likel y that the person or entity consulted with will act ad­versely to the client's interests before discussing matters re­lated to the client. The lawyer's position in such cases is an unavoidably difficult one."

Taking protective action has a major impact on a "normal" client­attorney relationship. Consider the elements of a normal relationship: loyalty, confidentiality, and client control or autonomy. Most of these elements seem at odds with enlisting protective measures-at least from the standpoint of the client.

The first question is when a lawyer should take protective action . According to Rule I. 14(b), the attorney should only consider protec­tive actions when the attorney has a reasonable belief that:

• •

•

94.

"the client in fact has diminished capacity," " is at risk of substantial physical , financial or other harm un­less action is taken and" the client "cannot adequately act in the client's own interest."

MODEL R ULES OF PROF'L CONDuer R. 1.14, cmt. 8, provides that:

[d]isclosure of the client's diminished capacity could adversely affect the client's interests. For example, raising the question of diminished capacity CQuld, in some circumstances, lead to proceedings for invol­untary commitment. Infonnation relating to the representation is pro­tected by Rule 1.6. Therefore, unless authorized to do so, the lawyer may not disclose such information. When taking protective action pursuant to paragraph (b), the lawyer is impliedly authorized to make the necessary disclosures, even when the client directs the lawyer to the contrary. Nevertheless, given the risks of disclosure, paragraph (c) limits what the lawyer may disclose in consulting with other individu­als or entities or seeking the appointment of a legal representative. At the very least, the lawyer should determine whether it is likely that the person or entity consulted with will act adversely to the client's inter­ests before discussing matters related to the client. The lawyer's posi­tion in such cases is an unavoidably difficult one.

95. !d.

Representing Clients Who May Have Diminished Capacity 149

Only then is the attorney authorized to "take reasonably necessary pro­tective action."" Comment 5 to Rule 1.14 explains it this way:

[ilf a lawyer reasonably believes that a client is at risk of sub­stantial physical, financial or other harm unless action is taken, and that a normal client-lawyer relationship cannot be main­tained as provided in paragraph Ca) because the client lacks sufficient capacity to communicate or to make adequately con­sidered decisions in connection with the representation, then paragraph Cb) permits the lawyer to take protective measures deemed necessary."

This belief must be reasonable and based on factual information that the attorney possesses, whether the information has been obtained through the client, family members, the attorney's observations, or consultation with a diagnostician. This information creates the founda­tion for the "reasonable belief' for the protective action requirement, and, as such, the attorney must be proactive in educating the client and gathering the information.

A finding of diminished capacity is not enough to authorize the attorney to act, according to Rule 1.I4Cb). The attorney must reason­ably believe that there is a risk of substantial harm if she does not act." There must be a high likelihood of harm, because at this point the attorney steps out of the advocacy role to take protective action for the client. If the client is unable to act in his own interest, then the attorney must take action for the client."

The factors in comment 6 to Rule 1.14 discussed earlier provide criteria that the attorney can use to determine the degree of diminished capacity. They direct the attorney to:

consider and balance such factors as: the client's ability to ar­ticulate reasoning leading to a decision, variability of state of mind and ability to appreciate consequences of a decision; the

96. /d. atR. 1.l4(b). 97. [d. at R. 1.14 cmt. 5. 98. [d. at R. 1.l4(b) (stating a "risk of substantial physical, financial or other

harm"); see also, generally, DoC. Bar Ethics Op. 353 (2010) (applying mles to determine actions for attorney when agent not following advice).

99. MODEL RULES or PROF' L CONDuer R. 1.l4(b) ("cannot adequately act in the client's own interest, the lawyer may take reasonably necessary protective action ... ").

150 C HAPTEA FIVE

substantive fairness of a decision; and the consistency of a de­cision with the known long-term commitments and values of the client. 'oo

Aspirational Standards E.4 through E.6 help the attorney deter­mine when to take protecti ve action. Standard E.4 speaks to the re­quirements of Rule 1.14 (b) by providing that the elder law attorney "[tlakes appropriate measures to protect the client when the attorney reasonably believes that the client: (I ) has diminished capacity, (2) is at risk of substantial physical , financial or other harm unless action is taken , and (3) cannot adequately act in the client's own interest."'o, The comment notes that "[clapacity may be task-specific. The client may have the capacity to perform some tasks but not others."102 Con­sequently, "the attorney should determine whether the client has suffi­cient capacity to perform the task at hand. Any protective action should be tailored to the needs of the client, be the least restrictive possible, be in the client's best interest, and not harm the client or make the client's situation worse."'03 If the attorney is taking protective action, he or she "should be guided by such factors 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."'04

Clearly, the more the attorney knows about the client's goals, the better the chance that the attorney will take the right course of action. The opposite is also true- the less the attorney knows about the client's wishes and values, the less confident the attorney will be in deciding which action to take. 'o, Before determining which protective actions

100. Id. at R. 1.14 cm!. 6. 101 . NAELA Aspirational Standard EA at 23 . 102 . Id. at cm!. at 23-24. 103. Id. (citations omitted). 104. M ODEL R ULES OF PROF'L CONDUCT R . 1.14 cm!. 5; see also NAELA

Aspirational Standard E.5 and cm!. at 24- 25. 105. The comments to NAELA Aspirational Standard E.5 at 24- 25 provide

that:

[tJhis responsibility to determine the client 's best interests increases with the extent to which the client cannot determine his or her own best interests. Two principal factors determine what is in the client's best interest. First, are the client's rights. remedies, and economic interests.

Representing Clients Who May Have Diminished Capacity 151

may be necessary, the attorney should consider whether the needs of the client can be met by his family, or any other support that may be available to him, which would obviate the need for more formal pro­tective action. I06 Such support system has the advantage of being less restrictive and minimally intrusive. I01

v. What Protective Action to Take

Comment 5 to Rule 1.14 sets out six possible protective measures that may be taken where appropriate by

consulting with family members, using a reconsideration pe­riod to permit clarification or improvement of circumstances, using voluntary surrogate decisionmaking tools such as du­rable powers of attorney or consu lting with support groups, professional services, adult-protective agencies or other indi­viduals or entities that have the ability to protect the client. lo,

Additionally, as noted earlier, the attorney must "be guided by such factors 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 decisionmaking autonomy to the least extent feasible, maximizing cli­ent capacities and respecting the client's family and social connec­tions."lo, Comment 5 also examines the concept of least restrictive alternative,llo meaning that the action should be appropriate to the situ­ation and tailored to the client's needs. 111 Although guardianship, which will be discussed in Chapter 6, is a protective action, it is the most intrusive and therefore should be used only as a last resort, and only when no other protective action would be sufficient and appropriate. I I '

Second, is the extent to whieh the attorney knows what the client would decide if the client were capable of deciding.

106. M ODEL R ULES OF PROF' L CONDUCT R. 1.14 cmt. 5. 10? /d. 1 08. [d. 109. [d. 110. [d. 111. [d. 112. See NAELA Aspirational Standard E.? and emt. at 26.

152 C HAPTER FIVE

Whether to take protective action is a big decision, and not one that should be taken lightly. As the attorney must operate within the constraints of the law and the ethics rules, he can take action only when all the criteria of Model Rule 1.14 have been met. If the attor­ney believes that action is warranted, then he must determine what action to take. The rule establishes what criteria must be met before the attorney can take action; the comments to the rule help the attor­ney determine what type of protective action to take. l13 For example, comment 5 offers a detailed explanation of paragraph (b) of Rule 1.14, and provides examples of different protective measures that may' be taken. The comment advises the elder law attorney to con­sider other factors as well, including the client's wishes, the client's best interest, and whether the client's autonomy and capacity can be preserved. J 14

The comment suggests different options, such as a durable power of attorney which can be used as a tool for planning for incapacity and is viewed as a less restrictive alternative than, say, a guardian­ship. However, the attorney must consider whether the client wants to sign a durable power of attorney and whether he or she has the capacity to do SOl"

The other examples in the comment discuss services that may be helpful to the client as well as agencies that may provide assistance. However, the next area of inquiry is who arranges and pays for these services, whether the client can agree to the receipt of services, and whether the client consents to the attorney contacting these agencies on the client's behalf. For example, if the agency requires the client's consent in order to provide services, and the client is unable to con­sent, will a court proceeding be necessary to order the provision of services? If a client refuses or is unable to consent, the attorney may

11 3. See MODEL RULES OF PROF' l CONDuer R. 1.14 cmts. 5,7. 114. [d. at R. 1.14 cmt. 5. 115 . See generally Lawrence A. Frolik & Mary F. Radford, 'Sufficienr ' Capac­

ity: The Contrasting Capacity Requirements for Different Documenrs, 2 NAELA 1. 303 (2006). Even in circumstances where a client has a power of attorney, the time may come when that document simply is no longer sufficient. and then it becomes necessary to seek a guardianship. In such instance, the question arises whether the attorney may represent the agent who is petitioning for guardianship for the client. See Chapter 6.

Representing Clients Who May Have Diminished Capacity 153

make "necessary disclosures"'16 in discussions with the agency but

must be aware of the ramifications of doing so, and the impact on the client-attorney relationship.'l7

Comment 5 recommends that in any protective action, the client's decision-making capacity should be maximized and the client's au­tonomy be kept intact as much as possible. This idea is consistent with the concepts of least restrictive alternative and limited guardianship expressed in the Uniform Guardianship and Protective Proceedings Act. 'l8 In any instance in which the client is incapacitated, the attorney will be "guided" by the best interest of the c1ient. '"

As noted above, the attorney must decide whether the " triggers" for protective action are met. Since the attorney is in the role of attor­ney, the attorney needs to have a framework for determining to what degree has the client's capacity diminished. Recall, according to com­ment 6 of Rule 1.14, the attorney should evaluate and weigh the vari­ous factors when reaching that decision .'20

The rule recognizes that when the attorney is considering a protec­tive action in accordance with 1.14(b), she may need to disclose infor­mation that will be protected under Model Rule 1.6(a). '21 As previously discussed , comment 6 notes that when the lawyer is considering the extent of the client's diminished capacity, "[i]n appropriate circumstances, the lawyer may seek guidance from an appropriate diagnostician."122

116. MODEL RULES OF PROF'L CONDUcr R. 1.14 cmt. 8 (noting needed disclosure may be made even if the client tells the attorney not to do so); see also Neb. Ethics Adv. Op. for Lawyers 91-4 (1991).

117. MODEL RULES OF PROF'LCONDUcr R. 1.14 cmt. 8. 118. Unif. Guardianship & Protective Proc. Act § 102 (1997). 1 19. MODEL RULES OF PROF'L CONDucr R. 1.14 cmt. 5; see also RONALD D. ROlUNDA

& JOHN S. DZlENKOWSKl, LEGAL EllIICS-THE LAWYER'S DESKBOOK ON PROFESSIONAL RE­SPONSIBILITY § 1.14-2 (2011 -2012 ed.) (discussing, among other things, ABA For­mal Op. 96-404); HAZARD, HODES, & JARVIS, supra note 19, at 18-6--18-8, 18-14-18-17.

120. MODEL RULES OFPROF'LCONDUcr R. 1.14 cmt. 6. 121 . Id. at R. 1.I4(c) (providing that U[i]nfonnation relating to the representa­

tion 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.").

122. Id. at R. 1.14 cmt. 6 (stating that U[i]n detennining the extent ofthe client's diminished capacity, the lawyer should consider and balance such factors as: the client's ability to articulate reasoning leading to a decision, variability of state of

154 CHAPTER F IVE

This gives the attorney authorization to speak with an expert about the

client's situation, and requires only that this diagnostician be "appropri­ate." Thus, the attorney should consult with someone who has experi­

ence with the issues faced by a client. For example, if the client has been

diagnosed with dementia, then the attorney should consult with a medi­cal professional with expertise in treating patients with dementia. If the

attorney suspects the client needs a guardian, then the attorney should

consult with a doctor who is qualified to assess capacity and functional ability.123

Assuming that the client does not have a legal representative, com­

ment 7 directs that the attorney consider whether an action is needed to protect the interests of the client.' 24 Depending on the circumstances

and the applicable laws, the attorney may need to petition for the "ap­

pointment of a guardian ad litem, conservator or guardian."'" The

action undertaken will depend on the legal needs of the client, e.g., is

there a legal transaction that needs to be completed, or litigation that

involves the client?'26 The comment is a cautionary note to the attor­ney considering such action, noting that the action comes with a cost­

whether in dollars or in the impact on the client- and that cost may

mind and ability to appreciate consequences of a decision; the substanti ve fair­ness of a decision; and the consistency of a decision with the known long-term commitments and values of the client. In appropriate circumstances, the lawyer may seek guidance from an appropriate diagnostician.").

123. See also Chapter 6; see, e.g., S.c. Bar. Eth.Adv. Comm., S.c. Adv. Op. 06-06, at *2 (2006), available at 2006 WL 4666948 (discussing, among other mat­ters, attorney talked with the client's treating physician).

124. MODEL RULES OF PROF'LCONDuer R. l.l4 emt. 7. 125. /d.; see also S.C. Adv. Op. 06-06, supra note 123, at *3 (2006) (citing S.C.

Bar Eth. Adv. Comm., S.c. Adv. Op. 05-11 (2005), and Conn. Bar Ass' n Informal Ethical Op. 97-21 (1997)).

126. MODEL RULES OF PROF'L CONDver R. 1.14 cmt. 7 provides the following:

If a legal representative has not been appointed, the lawyer should con­sider whether appointment of a guardian ad litem, conservator or guard­ian is necessary to protect the client's interests. Thus, if a client with diminished capacity has substantial property that should be sold for the client's benefit, effective completion of the transaction may require ap­pointment of a legal representative. In addition, rules of procedure in litigation sometimes provide that minors or persons with diminished capacity must be represented by a guardian or next friend if they do not have a general guardian.

Representing Clients Who May Have Diminished Capacity 155

outweigh the benefit of the action. '27 It points out that an action may

require that a judgment call be made by the attorney when weighing

the various alternatives,'28 and that the attorney must look beyond the

ethics rules to the applicable laws to see if they require the attorney to

"advocate [for) the least restrictive action [for) the client."'"

Filing a petition for an incapacity and guardianship proceeding is

considered a protective action under Rule 1.14(b). '30 It should be used

only when no other alternative is available that will meet the needs of

the client. '31 See Chapter 6 for a discussion of guardianship proceed­

ings as they relate to protecti ve action.

127. Id. ("In many circumstances, however, appointment of a legal representa­tive may be more expensive or traumatic for the client than circumstances in fact require.")

128. Id. ("Evaluation of such circumstances is a maller entrusted to the profes­sional judgment of the lawyer.")

129. Id. 130. See id. at I.I4(b); see also ABA Formal Ethics Op. 96-404 (1996) (see

Appendix 3). Also see comment e to section 24 of the RESTATEMENT (THIRD) OF THE LAW GOVERNING LAWYERS, which provides the following:

Seeking appointment of a guardian. When a client's diminished ca­pacity is severe and no other practical method of protecting the client's best interests is available, a lawyer may petition an appointment of a guardian or other representative to make decisions for the client. A general or limited power of attorney may sometimes be used to avoid the expense and possible embarrassment of a guardianship.

The client might instruct the lawyer to seek appointment of a guardian or take other protective measures . ...

A lawyer is not required to seek a guardian for a client whenever the conditions of subsection 4 (2000) are satisfied. For example, it may be clear that the courts will not appoint a guardian or that doing so is not in the client's best interests.

Id. at § 24 cmt. e (citation omitted). See also In re S.H., 987 P.2d 735, 74 I (Alaska 1999) ("[i]fthe requirements of [the rule] are met, a lawyer may seek a guardian to protect the client's interests despite the client's disapprovaL").

I 3 I. MODEL RULES OF PROF'LCONDUCT R. I.I4 cmt. 7 provides that:

If a legal representative has not been appointed, the lawyer should con­sider whether appointment of a guardian ad litem. conservator or guard­ian is necessary to protect the client's interests. Thus, if a client with diminished capacity has substantial property that should be sold for the client's benefit, effective completion of the transaction may require ap­pointment of a legal representative. In addition, rules of procedure in

156 CHAPTB1 F,VE

In taking protective action, the attorney should be mindful that he may be called to testify and, in effect, would be testifying against

the client. 132 The attorney-client privilege may bar the attorney from

testifying about any confidential communications between the client and the attorney against the client's desires. However, the attorney

may. be required to testify regarding his observations of the client and other information that would be confidential but not privileged. '"

Additionally, the court could find a waiver of the privilege if a third

party, who was not necessary to the representation, was present dur­ing the conversations or the client puts those communications at is­

sue in the guardianship proceeding, which would then require the

attorney to also testify about the conversations with the client.

Taking protective action for a client may be one of the most stressful

situations for an elder law attorney because of the potential to strain the typical client-attorney relationship. The action may put the attorney at

odds with the client even though the attorney is actually trying to help

the client and, as discussed above, is stepping out of the advocacy role.

litigation sometimes provide that minors or persons with diminished capacity must be represented by a guardian or next friend if they do not have a general guardian. In many circumstances, however, appointment of a legal representative may be more expensive or traumatic for the client than circumstances in fact require. Evaluation of such circum­stances is a matter entrusted to the professional judgment of the lawyer. In considering alternatives, however, the lawyer should be aware of any law that requires the lawyer to advocate the least restrictive action on behalf of the client.

See also NAELA Aspirational Standard E.7 ("Recommends guardianship or con­servatorship only when all possible alternatives will not work"); see also S.c. Adv. Op. 06-06, supra note 123, at *3 (whether guardian/conservator is least restrictive alternative).

132. See MODEL RULES OF PROF'L CONDuer R. 3.7; see Chapter 3. See also, gener­ally, Pa. Bar Ass'n. Comm. on Legal Ethics & Prof'l Responsibility, Informal Op. 2001-80,2001 WL 1745205 (2001) ("[Ilt is also possible that the wife's former attorney could be called as a witness in the proceedings regarding the wife's intent in drafting her original wil l. Under Rule 3.7 ... a lawyer 'shall not act as an advocate at a trial in which the lawyer's likely to be a necessary witness.' There are some exceptions ... These exceptions do not appear to apply. Accordingly, Rule 3.7 may also serve to bar the attorney from representing the children as counselor co-counsel.").

133. Keep in mind that this is different from the work-product exception in litigation underFED. R. e ,v. P. 26(b)(3).

Representing Clients Who May Have Diminished Capacity 157

The attorney should recognize that this action has the potential to end her representation of the client, especially if the client has tbe capacity to fire the attorney. '" Model Rule 1.I6(a)(3) notes that a client may dis­charge an attorney, and that "[e]xcept as stated in paragraph (c), a law­yer shall not represent a client or, where representation has commenced, shall withdraw from the representation of a client if: ... the lawyer is discharged." '" However, for a client in a Rule 1.14 si tuation, consider­ation must be given to the capacity required for the act in question­terminating a contract'36-so it the client has diminished capacity, does he have capacity to terminate the representation? Comment 6 to Model Rule 1.16 offers that:

lilt the client has severely diminished capacity, the client may lack the legal capacity to discharge the lawyer, and in any event the discharge may be seriously adverse to the client's interests. The lawyer should make special effort to help the client con­sider the consequences and may take reasonably necessary protective action as provided in Rule l.l4. 137

An attorney faced with this situation may, under certain circum­stances, terminate the representation under 1.16(b),'38 but must do so with care. According to ABA Ethics Opinion 96-404:

134. D.C. Bar Legal Ethics Comm. Op. 353, supra note 98 ("[I]t is difficult to imagine a circumstance under which permissive withdrawal causing substantial harm would be appropriate when representing a client with diminished capacity. Instead, if the client ... were to engage in the conduct described in Rule 1.16(b) that would ordinarily cause a lawyer to withdraw, that is a circumstance under which the lawyer should take protective action pursuant to Rule 1.14.").

135. MODEL RULES OF PROF'LCONDuer R. I. I 6(a)(3); see a/so, e.g., S.c. Adv. Op. OS-II (2005), available at 2005 WL 1704509.

136. See MODEL RULES oFPRoF'LCoNDuer R. 1.16 cmt. 6. 137. /d. ; see also, e.g., S.C. Adv. Op. 05-11, supra note 135 (2005). 138. MODEL RULES OFPROF'L CONDuer R. 1.16(b) provides the following:

Except as stated in paragraph (c) , a lawyer may withdraw from repre­senting a client if:

(I) withdrawal can be accomplished without material adverse ef­fect on the interests of the client; (2) the client persists in a course of action involving the lawyer's services that the lawyer reasonably believes is criminal or fraudu­lent ; (3) the client has used the lawyer's services to perpetrate a crime or fraud;

158 CHAPTER F IVE

While Rule J.l4 permits a lawyer to take protective action in such situations, it does not compel the lawyer to do so, and many lawyers are uncomfortable with the prospect of having to so act. The committee considers that withdrawal is ethically permissible as long as it can be accomplished "without mate-rial adverse effect on the interests of the client." Rule J.l6(b). J39

When the situation has deteriorated to the point where the attorney is considering a permissive withdrawal under J.l6(b), this may be an indicator that he needs to take protective action under Rule 1.14. In an ethics opinion, l40 the D.C. Bar Legal Ethics Committee concluded that:

it is difficult to imagine a circumstance under which permis­sive withdrawal causing substantial harm would be appropri­ate when representing a client with diminished capacity. Instead, if the client ... were to engage in the conduct described in Rule J.l6(b) that would ordinarily cause a lawyer to withdraw,

(4) the client insists upon taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagree­ment; (5) the client fails substantially to fulfill an obligation to the law­yer regarding the lawyer's services and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled; (6) the representation will result in an unreasonable financial bur­den on the lawyer or has been rendered unreasonably difficult by the client; or (7) other good cause for withdrawal exists.

139. ABA Formal Ethics Op. 96-404, supra note 130. The Ethics Committee, in a footnote accompanying the text, explained that:

[wJhile Rule 1.16(b)(5) also permits withdrawal "if the representation has been rendered unreasonably difficult by the client," a disability over which the client has no control is likely not the sort of "diffi­culty" the drafters had in mind in crafting this provision. Similarly, we do not believe that the final "catch-all" provision in Rule 1.16(b)(6) ("other good cause for withdrawal") automatically authorizes with­drawal where the client becomes disabled.

[d. at note 7. 140. D.C. Bar Legal Ethics Comm. Op. 353, supra note 98.

Representing Clients Who May Have Diminished Capacity 159

that is a circumstance under which the lawyer should take pro­tective action pursuant to Rule 1.14.'41

If the client's diminished capacity is so severe that he or she cannot appreciate the impact of the withdrawal, ending the representation is likely to have a "a material adverse effect on the client."'42

Conclusion

The elder law attorney representing the client described in the chapter hypothetical should recognize the myriad issues that can surface when representing such a client, be familiar with the resources available to maximize a client's capacity, and understand the parameters of Model Rule 1.14 regarding protective acts.

141. /d. 142. Vt. Adv. Ethics Op. 2006-1 (2006).

3

To Litigate or Not to Litigate-That Is the

Question

"To fight and conquer in all your battles is not supreme excellence; supreme excellence consists

in breaking the enemy's resistance without fighting.'"

An elderly climl Ivas duped into signing (/ puwer of alfOrne}' by an illvestmelll banker who then

sold all Ihe dimt's assels and kepI the money. 71!e a/lom ey sued (he inveslment broker wul has b en "'lable (0 sellie Ihl' {'(lSI' . The ('{Ise is IIOW Set Jor trial. The arrunwy lIeeds to prepare tl,e diem/ victim TO Clccl/rately {/lui persllasively testify.

PRACTICAL QUESTION CHECKLIST

Witness Preparation 1. Is my client competent to testify? 2. How can I maximize the witness's ability to

benefit from the preparation? 3. What is the purpose of my questions during

witness preparation? 4. Is my preparation assisting or encouraging

false testimony?

I. SUN Tzu, THE ART OF WAR, at pt. III (translated by Lionel Giles), available at http: //c lassics. mit.edurrzuiartwar.html.

239

8

240 CHAPTER EIGHT

Litigation and Trial Ethics 1. Are there accommodations I should seek in the hearing? 2. Willi be required to be a witness in the proceeding? 3. Did I intentionally or unintentionally elicit testimony that I

knew was false? 4. What are my responsibilities if I subsequently find out that

evidence I presented was false?

Although elder law has traditionally been and remains a generally trans­actional practice,F more litigation is going on in elder law than ever before. ' Elder law attorneys unfamiliar with litigation can unintention­ally run afoul of the rules of professional conduct. The primary area of concern is not to mislead or offer false testimony. False testimony can be created unintentionally durin g witness preparation or can be elic­ited during the course of the proceedings. Especially when dealing with nervous, inexperienced witnesses, attorneys must take care not to encourage false evidence merely by attempting to make the witness clearer or more persuasive.'

2. Luther M. Amundson, The Proliferation of Litigating Capacity Within the IncreasedAging Population, in RECENT DEVELOPMENTS IN ELDER LAW: LEADING

LAWYERS ON UNDERSTANDING THE LATEST ELDER L AW TRENDS. NAVIGATING THE PLANNING

PROCESS AND COUNSELING CLIENTS (20 11 ), available at 2011 WL 97 1162 (2011); Doug Chalgian, Elder Law Litigation and the Lessons I've Learned, 89 MICH. B.I. 38 (20 10).

3. The American Association of Retired Persons characterizes the elderly as "tempting targets for abuse" due to their general trust in people and possibility of reduced cognitive abil ity. Cynthia Ramnarace, How Can We Protect Against El­derAbuse During a Down Economy?, AARP B uLLETIN TODAY, July 1,2009, avail­able al cynthiaramnarace.com/yahoo_site_admin/assets/docs/How_Can_ We_ Protect....Against_EldeCAbuse_Dwin~aJ)own_Economy _AARP _Bulletin20l95355.pdr. Referring to her study of the cognitive abilities of older Americans to process and store the influx of information provided by public service advertisements de­signed to inform them about consumer fraud, Professor Denise C. Park testified before Congress that her empirical research suggests that " [ w lith age, we become slower at processing information; our memory becomes somewhat less effective; and our ability to take in a large quantity of information at one time and reason about it decreases," Old Scams-New Victims: Breaking the Cycle o[Viclimization, Hearing Before the S. Spec. Comm. on Aging, l09th Congo 59 (2005); available al http://aging.senate.gov/eventsihr/47dp.pdf (see pg. I ).

To Litigate or Not to Litigate-That Is the Question 241

I. Witness Preparation4

Witness preparation is considered by many to be an essential part of pretrial preparation.' American lawyers believe that witness preparation is a part of their "fundamental duty of representation and a basic element of effective advocacy.'" The ABA Model Rules of Professional Conduct define competent representation to include "legal knowledge, skill, thor­oughness and preparation reasonably necessary for the representation.'" The rule, however, does not refine the definition to include preparation of witnesses. It merely requires the "use of methods and procedures meeting the standards of competent practitioners.'" An experienced liti­gator knows that the performance of the witness can make or break a case at several junctures in the proceedings. Witnesses can be used at hearings or trials, and an effective witness at a deposition can position the case for a successful settlement. A witness who comes across as credible and confident can convince even the most stubborn opposing counsel that a settlement is in his client's best interest. On the other hand, a confused and tentative witness may cause the case to proceed to trial because of the [opposing counsel's] perception that the witness will be unable to convince the trier of fact ' Therefore, an attorney may violate the standard of care for "competent preparation for trial" if he does not perform pre-testimonial interviews with witnesses. 'o

Rule 1. 1 recognizes that the amount of preparation required is re­lated to the complex nature of the litigation." An attorney who plans to use an elderly witness must take the time to prepare that witness re­gardless of how simple and short that testimony is expected to be or

4. Much of this section is adopted from Roberta K. Flowers, What You See Is What You Get: Applying the Appearance oj Impropriety Standard to Prosecutors, 63 Mo. L. REV. 699 (1998).

5. REsTATEMENT (THIRD) OF TIlE LAW GOVERNING LAWYERS § 116(200) states that "[a] lawyer may interview a witness for the purpose of preparing the witness to testify."

6. John S. Applegate, Witness Preparotion, 68 TEX. L. REv. 277, 279 (1989). See generally Samuel R. Gross, Expert Evidence, 1991 WIS. L. REV. 1113, 1136--53.

7. MODEL RULES OF PROF'L CONDUCT R. 1.1. 8. Id. at emt. 5. 9. Roberta K. Flowers, Litigating with an Elderly Client, 3 NABLA QUAR­

TERLY 2 (Summer 2003). 10. Supra note 5 at § 116 emt. b. 11. MODEL RULES OF PROF'L CONDUCT R. 1.1 emt. 5.

242 CHAPTER EIGHT

the informal nature of the proceedings. Preparation is always required before an attorney introduces a witness's testimony. Comment I to

Rule 1.3 emphasizes the requirement for the attorney to "act with com­

mitment and dedication to the interests of the client and with zeal in

advocacy upon the client's behalf."12 Commitment and diligence in

representing elderly clients makes witness preparation essential.

Extra time in witness preparation is required because elderly wit­

nesses may have challenges that other witnesses do not. The elderly

witness may suffer from impaired or deteriorating memory, difficulty in

communicating, or mental impairments. " The attorney must also be aware

of jury bias and the need to prepare the witness to testify in a way that

can at least attempt to defeat that bias.14 Bias on the part of the trier of

fact can cause the elderly witness's credibility to be judged negatively

merely because of the witness's uneasy delivery or apprehension." Fi­

nally, the attorney must be aware of the suggestibility of elderly clients,

in relation to both the attorney's conduct in witness preparation and the

ability of the witness to withstand cross-examination. 16

Witness preparation serves two purposes: it prepares the elderly

witness and it also alerts the attorney to potential problems that may

occur at the hearing." An attorney, early in the litigation, must decide

12. Id. at R. 1.3 cmt 1. 13. See, e.g. , Gen. Accounting Office, Report No. GAO-02-312, NURSING

HOMES: MORE CAN BE DONE TO PROTECT RESlDEm"S FROM ABUSE 1 at 16 (2002): Michael J. Davidson, Governmental Responses to Elder Abuse and Neglect in Nursing Homes: the Criminal lustice System and the Civil False Claims Act, 12 ELOER L.J. 327 (2004).

14. Narina Nunez et a!., The Testimony of Elderly VictimlWitnesses and Their Impact on Juror Decisions: The Importance of Examining Multiple Stereotypes, 23 LAW & HUM. BEHAV. 413 (1999) (concluding that jurors may react negatively to elderly witnesses).

15. HOWAROEaur, ELOERS ON ThIAL: AGE ANDAGEISM INTIlEAMERlCAN LEGAL SYSTEM

77 (U. Press of Fla. 2004). 16. Id. (finding that research is mixed on whether elderly participants are

more susceptible to suggestion regarding what they believe they witnessed). 17. Flowers, supra note 9. The tactics and skills important to proper witness

preparation are beyond the scope of this book, but it is important to consider all of the tasks that can and should be accomplished in witness preparation, including:

[I) to investigate the facts ; that is, to find out about the events in question; (2) to find out what the witness perceived and can testify to from personal knowledge;

To Litigate or Not to Litigate---That Is the Question 243

[3] to determine how accurately the witness perceived the events and what conditions may have hindered or assisted his perception; [4] to test the witness's memory about what he perceived; [5] to discover how certain the witness is about what he remembers; [6] to determine adverse or favorable conditions that may have af­fected the witness's memory; [7] to refresh the witness's memory ofthings he once remembered but has since forgotten; [8] to find out whether exposure to relevant documents, other items of tangible or testimonial evidence, or some non-evidentiary stimulus will help refresh the witness's memory; [9] to test the witness's ability to communicate his recollections accu­rately; [10] to find out what the witness means by words or expressions he used in his story; [I I]to test the witness's truthfulness; [12] to warn the witness that his credibility may be attacked and that some kinds of acts in his past may be exposed in open court; [13] to ascertain whether the witness has a good or bad character as respects truthfulness; [14] to find out whether the witness has previously been convicted of a crime that could be used to impeach his credibility; [15J to uncover instances of non-criminal conduct that could be used to impeach the witness's credibility; [16] to discover whether the witness's story has been influenced by bias or prejudice; [I 7] to find out whether the witness's story has been influenced, prop­erly or improperly, by the statements or conduct of some other person; [18] to find out whether the witness has previously made statements that are either consistent or inconsistent with his present story; [ 19J to test the witness's demeanor in response to various stimuli he may encounter when he testifies (for example, the witness 's likely response to harsh questioning by a cross-examiner); [20] to explain the role of a witness, the obligations imposed by the oath, and the formality of court proceedings; [2 1] to inform the witness about the physical surroundings in which he will testify, the persons who will be present, and the logistical details of being a witness; [22] to explain to the witness why he should listen to questions care­fully, not guess, not volunteer information that has not been asked for, be alert to objections, and the like; [23] to advise the witness about appropriate attire and physical appear­ance in court, distracting mannerisms, inappropriate language and de­meanor, and the effective delivery of testimony.

Richard C. Wydick, The Ethics of Witness Coaching, 17 CARDOZO L. REV. I, 17- 18 (1995).

244 CHAPTER E IGHT

whether the elderly person will be capable of testifying. A witness who has been ruled incompetent may not be allowed to testify as to factual matters in the case, or a witness may be physically incapable of com­ing to the courthouse. Witness preparation helps the lawyer present her case in a clear and coherent manner because it gives her the chance to relieve some of the witness's anxiety.

On the other hand, the attorney must be aware of the opportunity for abuse in witness preparation. Some scholars have noted that wit­ness preparation is one of the "dark secrets" of trial work." Professor David Luban observed: "The interviewing and preparation of witnesses ... is a practice that, more than almost anything else, gives trial law­yers their reputation as purveyors of falsehoods."" This is largely be­cause witness preparation routinely takes place in private'O Therefore, many of the ethical issues that might arise within the context of witness preparation are seldom litigated. Witness manipulation and intimida­tion are rarely disciplined or even detected.

The Rules of Professional Conduct do not speak directly to the issue of witness preparation. Therefore, attorneys have very little guidance. One professor noted, "Everyone knows that it is wrong to ask a witness to lie. What is not known is how far a lawyer can properly push a witness short of that." 21 Because the ABA Rules do not speak directly to the permitted or prohibited conduct of the lawyer when preparing a witness, "[t]here remains .. . a vast realm of conduct that could potentially be characterized as improperly seeking to influence a witness' testimony. Within this area, there are very few guideposts to assist the attorney in maximizing his effectiveness as advocate while still remaining within the recognized limits of professional responsibility." 22 As one commen-

18. John S. Applegate, Witness Preparation, 68 TEX. L. REV. 277 , 279 (1989) (calling witness preparation "one of the dark secrels of the legal profession").

19. DAVID LUBAN, LAWYERS AND JUSTICE: AN ETHICAL STUDY 96 (1988) (conlrasting the German system. which discourages contact between witness and attorney).

20. See REsrATEMENT (THIRD) OFTHE LAW GOVERNING LAWYERS, supra note 5 at § 116 cmt. b. , which states: "The work-product immunity ... and the obligation of confidentiality regarding trial-preparation material ... . result in the process of witness preparation normally being confidential."

21. Charles Silver, Preliminary Thoughts on the Economics of Witness Prepa­ration, 30 TEX. TECH. L. REV. 1383, 1383 (1999) (citalions omitted).

22. Joseph D. Piorkowski, Jr., Professional Conduct and the Preparation of Witnesses for Trial: Defining the Acceptable Limitations of "Coaching ," I GEO. J. LEGAL ETHICS 389, 389 (1987).

To Litigate or Not to Litigate-That Is the Question 245

tator explained, "Attorneys now have essentially unlimited license to do almost anything ... short of buying witnesses or suborning perjury."" The lack of special rules, standards, or even discussion about the ethics of witness preparation has resulted in significant uncertainty about the boundaries between permissible witness preparation and impermissible witness "coaching."24

The elder law attorney must consider the important responsibilities of an attorney to not manipulate witnesses when preparing them to testify at a hearing or trial. The goal of proper witness preparation is to prepare "the witness to give the witness' testimony at trial and not the testimony that the attorney has placed in the witness' mouth."" In light of the issue that may surround the preparation of an elderly client! witness, based on the client's/witness 's emotional, physical, or mental state, the attorney preparing an elderly witness must be especially cau­tious not to lead the witness to testify falsely, either intentionally or unintentionally.

Additionally, many of the issues discussed in Chapter 5 regarding the need to maximize capacity also must be considered in witness prepa­ration. The elder law attorney, in order to act competently and with due diligence in preparing the elder witness, needs to consider the time, place, and manner of the witness preparation session. The attorney should think about whether there are times of the day when the witness is more alert and focused. The attorney should think about taking the witness to the courthouse to get comfortable talking in the room where the hearing will take place. Practicing elder law competently and ethi­cally always takes time, and witness preparation is no exception. An ethical attorney must be flexible. The client should not be put at a disadvantage merely because the attorney did not think ahead about how to assist the witness to maximize her persuasiveness.

The relationship between the attorney and a client who is being prepared for trial or a hearing makes the situation ripe for the attorney

23. Gross, supra note 6, at I 137. 24. See Michael Higgins, Fine Line, 84-May A.B.A. J. 52 (1998) (noting that

"[t]he line where legitimate witness preparation crosses into unethical coaching is fuzzy"); Robert S. Thompson, Decision, Disciplined Inferences and the Adversary Process, 13 CARDOZO L. REV. 725, 771 (1991) (finding the line between witness preparation and witness coaching both "fuzzy and shifting").

25. State v. McCormick, 259 S.E.2d 880, 882 (N.C. 1979), superseded by rule on unrelated issue as stated in State v. Squire, 364 S.E.2d 354 (N.C. 1988).

246 CHAPTER E IGHT

to unduly influence the witness. An elderly witness may be taking sig­nals from the attorney as to how he should testify. Therefore, the attor­ney must be very careful not to put words into the witness 's mouth. The attorney's job is "[t]o extract the facts from the witness, not pour them into him; to learn what the witness does know, not to teach him what he ought to know.""

Although the Model Rules of Professional Conduct do not specifi­cally address witness preparation, they do prohibit certain behavior that could result from improper witness preparation. For example, the rules strictly prohibit the lawyer from knowingly offering false or per­jurious testimony." Further, the Model Rules prohibit "conduct that is prejudicial to the administration of justice."" The actual parameters of this rule are not defined in the ABA Rules, and some have criticized the rule as vague and uncertain" The rule has been used to address conduct that does not violate another professional conduct rule but results in substantial injury to the justice system.'" This rule sanctions conduct that resembles obstruction of justice, including advising a wit-

26. In re Eldridge, 37 Sickels 161, 171 (N.Y. 1880); Wydick, supra note 17, at 17- 18.

27. See MODEL RULES OF PROF'L CONDuer R. 3.3(a)(3) (stating that "[a) lawyer shall not knowingly ... offer evidence that the lawyer knows to be false"); id. at R. 3.4(b) (stating that "[a) lawyer shall not ... falsify evidence, counselor assist a witness to testify falsely."); id. at R. 8.4(c) (explaining that "[i)t is professional misconduct for a lawyer to ... engage in conduct involving dishonesty, fraud, deceit or misrepresentation").

28. Id. at R. 8.4(d). 29. In re Complaint as to the Conduct of Haws, 801 P.2d 818, 822 (Or. 1990);

Nancy Moore, Mens Rea Standards in Lawyer Disciplinary Codes, 23 GEO J. LEGAL ETHICS I (2010); Weckstein, Maintaining the Integrity and Competence of the Legal Profession, 48 TEX. L. REv. 267, 274-80 (1970); John F. Sutton, How Vulner­able Is the Code of Professional Responsibility ?, 57 N.C. L. REV. 497, 502 n. 13 (1979); Martha E. Johnston, ABA Code of Professional Responsibility: Void for Vagueness?, 57 N.C. L. REV. 671, 689 (1979). But see the following cases where the courts have upheld the constitutionality of the rule: In re Complaint as to the Conduct of Rook, 556 P.2d 1351 (Or. 1976); State ex rei. Okla. Bar Ass'n v. Bourne, 880 P.2d 360 (Okla. 1994); Howell v. State Bar Tex. , 843 F.2d 205, 208 (5th Cir. 1988) (finding that the disciplinary rule was not unconstitutionally vague be­cause lawyers have the benefit of guidance provided by "case law, court rules and the ' lore of the profession"') (quoting In re Snyder, 472 U.S. 634, 645 (1985)).

30. ROBERT E. JUCEAM, HVPOTIiETICALS, SELECrED REFERENCES ON Enncs, AND SE­LECTED EXCERPTS FROM THE NEW YORK RuLES OF PROFESSIONAL CONOuer, 1768 Pu/Corp 505, 580 (2009).

To Litigate or Not to Litigate- That Is the Question 247

ness to testify falsely, improperly paying a witness, refusing to respond to disciplinary investigations, or repeatedly disrupting a proceeding.'1 The language is straightforward, but the difficulty is in determining the breadth of the rule. " The Oregon Supreme Court's examination of each of the five key words in the rule is instructive." The court defined "conduct" to include both acting improperly and failing to act when required." The rule as delineated by the Oregon court included any "proceedings that contain the trappings of a judicial proceeding, such as sworn testimony, perjury sanctions, [and] subpoenas."" "Adminis­tration" includes both the effect of the lawyer's conduct on the pro­ceedings and the substantive rights of any of the parties." The court made it clear that it is the potential prejudice in the proceedings that must be assessed." "Prejudice" includes repeated conduct that causes some harm or a single act causing substantial harm" Therefore, an attorney might be disciplined for improper witness coaching under this rule if it can be shown that the methods used by the attorney have a potential to harm the proceeding.

During the course of witness preparation, the elder law attorney wants to keep in mind that her actions can encourage the witness to testify falsely. Methods that could cause a client to testify falsely in­clude:

I. Preparing several witnesses, who have the same interest in the outcome, together;

2. Suggesting more persuasive words that do not have the same connotation as the words originally used by the client;

3. Discussing with the witness what other people are going to say about an event; and

31. Id. 32. Dodd v. Fla. Bar, 118 So. 2d 17 (Fla. I 960);/n re Haws, 80 I P.2d 818, 822

(Or. 1990). 33. !d. at 822-23 . 34. Id. at 822. 35. Id. at 823 . 36. Id. 37. Id., citing In re Complaint as to the Conduct of Boothe, 740 P.2d 785 (Or.

1987) (wherein an attorney 's "unsuccessful attempt to induce a witness not to testify was [found to be] prejudicial").ld.

38. Id.

248 CHAPTER E IGHT

4. Conveying to the witness the legal and factual issues in the case.

None of these methods may be intended by the attorney to encour­age or assist the client or witness to testify falsely; however, each has the potential to unintentionally signal to the wi tness what would be favorable testimony regardless of its truth. As a matter of fact, the Re­statement (Third) of the Law Governing Lawyers in § 116 comment 6 suggests that some of these methods may be proper. It advises that:

Preparation consistent with the rule of this Section may include the following: discussing the role of the witness and effective courtroom demeanor; discussing the witness's recollection and probable testimony; revealing to the witness other testimony or evidence that will be presented and asking the witness to reconsider the witness's recollection or recounting of events in that light; discussing the applicability of law to the events in issue; reviewing the factual context into which the witness's observations or opinions will fit; reviewing documents or other physical evidence that may be introduced; and di scussing prob­able lines of hostile cross-examination that the witness should be prepared to meet. Witness preparation may include rehearsal of testimony. A lawyer may suggest choice of words that might be employed to make the witness's meaning clear. However, a lawyer may not assist the witness to testify falsely as to a mate­rial fact.

However, the attorney must be cautious and always ascertain the reasons for using these methods to ensure that he is not running afoul of the Rules of Professional Conduct. Finally, the elder law attorney must be watchful for the risk that the elderly clientiwitness who is eas­ily led is not being encouraged by these methods to testify falsely.

II. Litigation Ethics

The ethics of witness preparation are very similar to the ethics in litiga­tion : Initially, the lawyer must determine if there are barriers to the client's ability to communicate in the litigation setting. Standard F.l of the NAELA Asprirational Standards suggests the need for the elder law

To Litigate or Not to Litigate-That Is the Question 249

attorney to "minimize barriers to effective communication .... " 39 It is important that, as she considers the testimony of an elderly client or witnesses, the attorney identify the barriers to effective communica­tion that may be present in the litigation setting. The comment to Stan­dard EI suggests four barriers to effective communication that relate to the litigation proceeding. They include:

1. Cognitive barriers: Clients of advanced age are sometimes con­fused , forgetful, or suffer from actual dementia.

1. Physical barriers: Clients of advanced age sometimes suffer from hearing or vision loss or face mobility problems.

3. Situational stress: Elder Law Attorneys commonly see clients who are in crisis. Someone has died; there has been a financial setback, or a medical crisis.

4. Complex issues: Medicaid rules, fiduciary responsibility, tax code intricacies, and documents in "legalese" can baffle even the sharpest clients"

Witness preparation should attempt to counter some of the barriers that may exist as a natural part of the proceeding. Additionally, the attorney should consider asking the court to accommodate some of the client or witness barriers. For example, if the client is more focused in the morning, then the court may hold the hearings only in the morn­ing. The attorney should visit the courtroom and see if there are physi­cal barriers that can be adjusted to permit the client/witness to safely and easily testify" The day of the hearing may also be a cause of concern for the attorney. If the client is currently struggling because of stressful circumstances or even painful memories, the attorney might consider rescheduling the hearing. The situation itself may be a cause of extreme stress for the client. The elderly client may not have been in the courtroom for a long time, or ever. This could be an extreme bar­rier to effective communication. A visit to the courthouse and the hear­ing room might relieve her stress, which may minimize the barriers

39. NAELA Aspiralional Standard F.I. 40. [d. at Standard F-I emt., fn. 32 at 29. 41. See generally Rebecca Morgan, From the Elder-Friendly Law Office to

the Elder-Friendly Courtroom: Providing the Same Access and Justice for All, 2 NAELA J. 325 (2006) (suggestions for making the physical space barrier-free).

250 CHAPTER EIGHT

and maximize effective communication. Finally, the attorney is well aware that there are very complex is­

sues involving the court system. These issues can be extremely fright­ening for an elderly client/witness. Requests for short recesses to explain what is going on are not unreasonable. To zealously represent an eld­erly client, the attorney must be aware and proactive to eliminate bar­riers to justice.

In litigation, an elder law attorney must be aware of the constric­tions in Model Rule 3.7.

Rule 3.7 states that:

(a) lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness unless:

(I) the testimony relates to an uncontested issue; (2) the testimony relates to the nature and value of le­gal services rendered in the case; or (3) disqualification of the lawyer would work substan­tial hardship on the client.

(b) A lawyer may act as advocate in a trial in which another lawyer in the lawyer's firm is likely to be called as a wit­

ness unless precluded from doing so by Rule 1.7 or Rule 1.9.42

This rule is "intended to avoid or eliminate not only possible con­flicts of interest between lawyer and client but also situations in trial that may prejudice the opposing party when the lawyer combines or intermi ngles his or her role as an advocate with that as a witness ."" An attorney who has previously drafted a will may find himself in the position of being called as a witness in a will contest. Courts have routinely ruled that an attorney who will be called to testify on behalf of the estate in a contested will case may not also act as an advocate.44

4Z. MODEL R ULES OF I'ROF' L CoNoUcrR. 3.7. 43. ACTEC Commentary to R. 3.7 at 153. 44. Iowa State Bar Ass'n Comm. on Ethics & Practice Guidelines, Op. No. 071

07 (Z007) (finding that a lawyer who drafted a will may represent the representa­tive. The difficulty arises when there is "A contest which revolves around the lawyer's work product" Then the attorney may be an essential witness and would be disqualified as the advocate. In the matter oj the Estate of Waters, 647 A.Zd 1091 (Del. 1994); State ex reI. Nebraska State Bar Ass'n v. Neumeister, 449 N.W.Zd 17 (Neb. 1989).

To Litigate or Not to Litigatf>-That Is the Question 251

On the other hand, courts have allowed other attorneys in the firm to act as advocates under Rule 3.7"

Litigation brings the attorney squarely into the adversary system. A core premise of the adversary system is that truth emerges from the confrontation of zealous advocates representing their clients and their client's legal positions . The adversary system requires that each side has the ability and opportunity to tell its side to a neutral and somewhat pass ive decision maker in a structured environment. For example, in a contested guardianship hearing, there is usually an attorney represent­ing the prospective ward, who is claiming that a guardianship is not needed, and an opposing side who says that a guardianship is needed. Both sides put on evidence under a somewhat less formal structure, but still with rules and regulations as to what evidence is permissible. And a magistrate or judge makes a decision. All of the components of the system are necessary, including the structure of the Rules of Pro­fessional Conduct that control the behavior of the zealous advocates.

The importance of this ethical structure begins in the prehearing or pretrial litigation. From the beginning of litigation, the Rules of Profes­sional Conduct guide the elder law attorney's conduct. Rule 3.1 pro­hibits an attorney from filing a frivolous lawsuit 4

' Rule 3. 1 requires that any lawsuit or any document that an attorney fi les with the court must have a basis in law and fact that is not frivolous. The comment to the rule clarifies this as a good-faith basis. A good-faith basis does not require that the attorney believe the client will ultimately prevail. An elder law attorney can represent an individual against a guardianship petition even if he believes that ultimately the court may grant the petition. But the attorney must investigate claims of incapacity before filing the petition"

45. See, e.g., Gabayzadeh v. Taylor, 639 F. Supp. 2d 298 (E.D.N.Y. 2009). 46. MODEL RULES OF PROF'LCONDUCT R. 3. 1 states:

[a] lawyer shall not bring or defend a proceeding, or assert Dr contro­vert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law. A lawyer for the defendant in a criminal proceeding, or the respondent in a proceeding that could result in incarceration, may nevertheless so defend the pro­ceeding as to require that every element of the case be established.

47. See In the matter a/Brantley, 920 P.2d 433 (Kan. 1996). See also In re Disciplinary Proceeding Against Eugster, 209 P.3d 435 (Wash. 2009).

252 CHAPTER E IGHT

In addition to the ethics rules that govern frivolous claims, Rule 11 of the Federal Rules of Civil Procedure and the state counterparts also require the attorney to not file frivolous claims or documents. Rule 11 (b) requires that:

By presenting to the court a pleading, written motion, or other paper-whether by signing, filing, submitting, or later advo­cating it-an attorney or unrepresented party certifies that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances:

(I) it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation;

(2) the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for estab­lishing new law;

(3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or dis­covery; and

(4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief or a lack of information."

Some states have actually incorporated language from Rule 1 I in the state's rule of professional conduct. For example, Wyoming added to its Rule 3.1 the following language:

The signature of an attorney constitutes a certificate by him that he has read the pleading, motion, or other court document; that to the best of his knowledge, information, and belief, formed after reasonable inquiry, it is well grounded in fact and is war­ranted by existing law or a good faith argument for the exten­sion, modification, or reversal of existing law; and that it is not interposed for any improper purpose such as to harass or to cause unnecessary delay or needless increase in the cost of litigation"

48. FED. R. CJv. P. II (b) (2007). 49. WYO. R ULES OF PROF' LCONDUcrR.3.1 (c) (2012).

To Litigate or Not to Litiga te--That Is the Question 253

The elder law attorney, when filing a claim or any document, must be sure that she has evidence to support the allegations. Before filing a guardianship petition for a client, an attorney is required to be sure that the petitioner's claims that the prospective ward is in need of a guard­ian are accurate. The attorney's signature indicates that there will be evidence to support the claims in the document. Rule 3.1 and Rule 11 both recognize that add itional information will come to li ght as the case proceeds, and merely because, on further investigation, the docu­ment or claim fails does not mean it was in violation of the rules at the outset. Both rules allow for additional information that will come to light during di scovery.

During the course of pretri al litigation, the attorneys for both sides may engage in negotiations. Rule 4.1 deals with the issue of truthful­ness to opposing counsel and usually arises in negotiation.'o Rule 4 .1 prohibits an attorney from making a false statement of material fact to a third person. The comment limits this rule to false statements of ma­terial fact" and defines the term "material fact" in negotiations. Com­ment 2 states that "[ulnder generally accepted conventions in negotiation, certain types of statements ordinarily are not taken as state­ments of material fact. Estimates of price or value placed on the sub­ject of a transaction and a party 's intentions as to an acceptable settlement of a claim are ordinarily in this category, and so is the exist­ence of an undisclosed princ ipal except where nondisclosu re of the principal would constitute fraud."" The rule in essence allows the el­der law attorney to "bluff' about the acceptable settlement.

Additionally, Model Rule 4. 1 also says that it is improper to fail to disclose a material fact if disclosure is necessary to avoid assisting a crime or a fraudulent act. So, not only can an attorney not make a false statement, but an attorney must also disclo se information or correct a misunderstanding if the failure to correct will assist the cli -

50. MODEL RULES OF PROF' L CONDUCT R.4.1 states that:

In the course of representing a client a lawyer shall not knowingly : (a) make a false statement of material fact or law to a third person; or (b) fail to disclose a material fact to a third person when disclosure is necessary to avoid ass isting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 1.6.

5 I. MODEL RULES OF PROF'L CONDUCT R. 4.1 cmt. 2. 52. ld.

254 CHAPTER EIGHT

ent in committing a fraud or criminal act. However, Rule 4.1 is sub­ject to the limitations of the confidentiality rules as discussed in Chap­ter 3. So, for example, a lawyer who represents the administrator of an estate has no obligation to correct a creditor's mistaken belief that the estate has no assets after the attorney has notified the creditor of the decedent's death"

Although the attorney may be prohibited from divulging the in­formation because of the limitations of Rule 1.6, he may be required to withdraw if the client is unwilling to disclose the information ' 4 If the attorney continues to represent the client in light of the fraud or crime, he might run afoul of Rule 1.2(d) . This rule would prohibit an attorney who represents a fiduciary from making false statements in an accounting."

Finally, pretrial litigation can involve settlement of the case. Model Rule 1.2(a), Scope of Representation, sets forth the division of respon­sibility between clients and attorneys . It places the responsibility of determining the objectives of the representation on the client and the means to carry out those objectives on the attorney. This is especially applicable when a client's decisions do not align with the attorney's own judgment as to the best interest of the client. In the absence of diminished capacity and the need for protective action, the attorney must follow the objectives of the client, regardless of the attorney 's own judgment as to the correct way to proceed. The attorney is re­quired to inform the client of all the factors relevant to an informed decision." However, U[i]n rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client's situation."" The 'Model Rules recognize, however, that the type and extent of com­munication can differ from client to client. Specifically, comment 6 to Model Rule 1.4 indicates that U[o]rdinarily, the information to be pro­vided is that appropriate for a client who is a comprehending and re-

53. N. Y. State Bar Ass' n Comm. on Prof' I Ethics, Op. No. 796 (2006). 54. MODEL RULES OF !'ROF'L CONDuer R. 1.16 requires withdrawal if Utherepre­

sentation will result in violation of the rules of professional conduct or other law." 55. ACTEC Commentary to R. 1.2, at 35. 56. MODEL RULES OF PROF' L CONDuer R. 1.4; see also ACTEC Commentary to

Rule 1.4 that state, U[T]he lawyer should assist the client in making informed judgments regarding the method by which the client's objectives will be ful­filled." Id. at 33.

57 . MODEL RULES OF !'ROF' L CONDuer R. 2.1.

To Litigate or Not to Litigate-That Is the Question 255

sponsible adult. However, fully informing the client according to this standard may be impracticable, for example, where the client is a child or suffers from diminished capacity."" In the Matter of Brantley" ex­emplifies what occurs in litigation when an attorney fails to communi­cate with his client. Brantley was disciplined for seeking a "voluntary conservatorship" without consulting with the client who was the sub­ject of the conservatorship.60

Finally, pretrial litigation may not resolve the matter, and an elder law attorney may find herself in a formal setting such as a hearing or a trial. The Rules of Professional Conduct deal specifically with the attorney's conduct in front of a tribunal." Model Rule 3.3 reflects the importance placed on truthfulness in dealing with the court. 62 Model

58. [d. at R. 1.4 cmt. 6. 59. 920 P.2d 433 (Kan. 1996). 60. [d. 61. MODEL RULES OF PROF' L C ONDuer R. 3.3. 62. MODEL RULES OF PROF'L CONDuer R. 3.3 states:

(a) A lawyer shall not knowingly: (I) make a false statement of fact Dr law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribu­nal by the lawyer; (2) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or (3) offer evidence that the lawyer knows to be false. If a lawyer, the lawyer's client, or a witness called by the lawyer, has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including. if necessary, disclosure to the tribunal. A lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reason­ably believes is false. (b) A lawyer who represents a client in an adjudicative proceeding and who knows that a person intends to engage, is engaging or has en­gaged in criminal or fraudulent conduct related to the proceeding shall take reasonable remedial measures, including, if necessary, dis­closure to the tribunal. (c) The duties stated in paragraphs (a) and (b) continue to the conclu­sion of the proceeding, and apply even if compliance requires disclo­sure of information otherwise protected by Rule 1.6. (d) In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the lawyer that will enable the tribunal to make an informed decision, whether or not the facts are adverse.

256 CHAPTER E IGHT

Rule 3.4 deals with conduct between opposing counse!." An attorney

is prohibited from encouraging or assisting in introducing false testi­

mony or evidence. Additionally, the rules provide that "[ilf a lawyer ..

. has offered material evidence and ... comes to know of its falsity, the

lawyer shall take reasonable remedial measures."" This provision ap­

plies even if the lawyer's knowledge of the falsity of the information

came from her client and therefore would be confidential under the

rules governing confidential information'S The rule requires the attor­

ney to take reasonable steps to remedy the false testimony. Initially,

the attorney should consult with the client and attempt to convince the

client to consent to correct the false testimony, including informing the

client that the attorney will be required to withdraw if the client with­

holds consent. However, if the client does not consent, the rule re­

quires remedial steps, even if that requires the disclosure of confidential

63. Model Rule 3.4 states: A lawyer shall not: (a) unlawfully obstruct another party's access to evidence or unlaw­fully alter, destroy or conceal a document or other material having potential evidentiary value. A lawyer shall not counselor assist an­other person to do any such act; (b) falsify evidence, counselor assist a witness to testify falsely, or offer an inducement to a witness that is prohibited by law; (c) knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obliga­tion exists; (d) in pretrial procedure, make a frivolous discovery request or fail to make reasonably diligent effort to comply with a legally proper dis­covery request by an opposing party; (e) in trial, allude to any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evi­dence, assert personal knowledge of facts in issue except when testi fy­ing as a witness, or state a personal opinion as to the justness of a cause, the credibility of a witness, the culpability of a civil litigant or the guilt or innocence of an accused; or (f) request a person other than a client to refrain from voluntarily giv­ing relevant infOlmation to another party unless: (I) the person is a relative or an employee or other agent of a client; and (2) the lawyer reasonably believes that the person's interests wi ll not be adversely affected by refraining from giving such infonnation.

64. Id. at R. 3.3(a)(3). 65. Id.

To Litigate or Not to Litigate-That Is the Question 257

information against the client's wishes. If, for example, an attorney becomes aware after filing an accounting for a fiduciary client that, in fact, that accounting is false, the attorney should seek the permission of the client to correct the accounting, but if the client refuses, the attorney is required to correct the information even though it would reveal misconduct on the part of the client.

The New York State Bar Association dealt with a variation on this issue in a probate proceeding." An attorney was retained to probate an estate by the decedent's sole beneficiary and the named executor. The attorney filed a petition to have the heir appointed as the executor and files a certification of eligibility. After the heir is appointed, the lawyer discovers that the heir was disqualified as an executor because he was a convicted felon. The New York Committee opined that the lawyer was not permitted to di sclose the information because it came from the client, but that he must remedy the false testimony by withdrawing the certification that the heir was qualified. The opinion held that the attor­ney is not permitted to disclose the information to any further extent than will occur due to withdrawal of the certification'7

Further, an attorney who reasonably believes that a witness is go­ing to testify falsely can refuse to put that witness on the stand" Rule 1.2(a) places the burden on the attorney to decide the means of the representation , which includes which witnesses will be called'· The standard for refusing to put on evidence is a lesser standard than is the standard for correcting false evidence, which requires the attorney to have knowledge that the evidence is false-under the terminology sec­tion of the Model Rules, "'knowingly ' denotes the actual knowledge of the fact in question." 70 '''Reasonable belief'" denotes that the law­yer believes the matter in question and that the circumstances are such that the belief is reasonable."7l The rules regarding evidence before a tribunal are quite clear; an attorney has a higher standard than just the role of advocate.

66. N.Y. State Bar Ass'n Comm. on Prof' I Ethics, Op. No. 797 (2006). 67. Id. 68. MODEL RULES OF P ROF'L CONDuer R. 3.3(b). 69. Id. at R. 1.2(a). 70. Id. at R. 1.0(f). 7 1. Id. at R. 1.0(i).

258 CHAPTER E IGHT

All of the rules involving false testimony reflect the core value that

attorneys act as officers of the court" in addition to being zealous

advocates." The rules recognize that most of the time the roles of ad­

vocate, officer of the court, and a citizen with special responsibility to

justice will be consistent. But occasionally these roles will conflict. When a conflict occurs, the preamble says the attorney must resolve

the conflicts through "the exercise of sensitive professional and moral

judgment guided by the basic principles underlying the Rules." Refus­ing to put on false testimony or evidence, even if it would help the

client, is that occasion when the officer of the court role trumps the advocate role.

Obviously, conflicts can occur between clients and attorneys re­

garding what witnesses to call and whether false testimony or evidence

72. Id. at R. 3.3 cmt. 2 says:

This Rule sets forth the special duties of lawyers as officers of the court to avoid conduct that undermines the integrity of the adjudicative process. A lawyer acting as an advocate in an adjudicative proceeding has an obligation to present the client's case with persuasive force. Performance of that duty while maintaining confidences of the client, however. is qualified by the advocate's duty of candor to the tribunal. Consequently, although a lawyer in an adversary proceeding is not required to present an impartial exposition of the law or to vouch for the evidence submitted in a cause, the lawyer must not allow the tribu­nal to be misled by false statements of law or fact or evidence that the lawyer knows to be false.

See also RONALD D. RarUNDA & JOHN S. DZlENKOWSKI, LEGAL ETH1CS- THE LAWYER'S

DESKBOOK ON PROFESS10NAL RESPONSlB1UTY § 1.6 (201 1-2012 ed.). 73. The preamble to the ABA Model Rules states it this way:

In the nature of law practice, however, conflicting responsibilities are encountered. Virtually all difficult ethical problems arise from conflict between a lawyer's responsibilities to clients, to the legal system and to the lawyer's own interest in remaining an ethical person while earning a satisfactory living. The Rules of Professional Conduct often prescribe terms for resol ving such conflicts. Within the framework of these Rules, however, many difficult issues of professional discretion can arise. Such issues must be resolved through the exercise of sensitive professional and moral j udgment guided by the basic principles underlying the Rules. These principles include the lawyer's obligation zealously to protect and pursue a client's legitimate interests, within the bounds of the law, while maintaining a professional, courteous and civil attitude toward all persons involved in the legal system. Id. at preamble 9.

To Litigate or Not to Litigate-That Is the Question 259

will be corrected. When that happens, the client may in fact discharge the attorney. In the absence of any issue as to the capacity of the client, Rule 1.16 requires an attorney to withdraw if he or she is discharged."

Finally, Rule 3.4 sets the standards for dealing with opposing counsel with regard to evidence. Rule 3.4(a) prohibits an attorney from "un­lawfully obstruct[ing] another party's access to evidence or unlawfully alter[ing], destroy[ing] or conceal[ing] a document or other material havi ng potential evidentiary value.7S A lawyer shall not counselor as­sist another person to do any such act .. .. "" Rule 3.4(e) prohibits asking questions that the attorney does not have a good-faith basis to ask. The attorney must have a reasonable belief that the evidence be­ing elicited by the question is relevant and admissible pursuant to the applicable rules of evidence. Additionally, the attorney must not "as­sert personal knowledge of the facts in issue" or "state a personal opin­ion as to the justness of a cause" or the "credibility of a witness.""

Conclusion

In litigation with elderly clients and witnesses, the attorney should con­sider four things.

I. Whether the client/witness is competent to testify, not only from a legal perspective but also from a tactical perspecti ve.

2. If the client/witness is not capable of testifying, the attorney must consider how to prove the case without the client.

3. The attorney should consider whether the case can be negoti­ated to avoid the hearing or trial.

4. If the elderly witness is going to testify, then the attorney must consider how to prepare the witness.

74. Id. at R. 1.16(a)(3). 75. See In re Nalls, 998 So. 2d 697 (La. 2009) (Lawyer was suspended for a

year after he refused to tum over a will (a the attorney for the named executor and misled the attorney as ( 0 the location of the will. The lawyer had previously begun a probate case and asked that the son of the descendent be named the executor. The new will showed that the brother had been named executor.).

76. MODEL RULES OF PROF'L CONDuer R . 3.4(a). 77. !d.

260 CHAPTER E IGHT

Preparing an elderly client or witness to testify requires the attor­ney to be willing to take the time to work with the client to maximize his or her persuasiveness. In preparing the client to testify in the sce­nario posed at the beginning of this chapter, the attorney should con­sider the capacity of the client to testify about how the defendant approached her with the power of attorney, what he told her he would do with it, and what she knew at that time. The attorney must be care­ful not to put words into her mouth about what he thinks she might have understood. He also must be aware of the ethical obligations to not encourage her to make up facts or fill in facts she does not know. An attorney in litigation must always remember that he plays a tripar­tite role: an advocate, an officer of the court, and a citizen with a spe­cial duty to see that justice is served."

78. Id. at preamble [I].

4

1

THE FIVE (OKAY ACTUALLY SIX) COMMANDMENTS**

FOR REPRESENTING CLIENTS WITH DIMINISHED

CAPACITY© Maine Elder Law

&

Estate Planning Institute 2012

September 28, 29, 2012

Roberta K. Flowers & Rebecca C. Morgan

Stetson University College of Law Gulfport, Florida*

*© 2012 Rebecca C. Morgan and Roberta K. Flowers. Portions of this outline are based on Chapter 5 of our book, Introduction to Ethics in an Elder Law Practice. All Rights Reserved. ** We would have done 10 but we don’t have that much time!

2

THE 5 COMMANDMENTS OF REPRESENTING CLIENTS WITH DIMINISHED CAPACITY

It is the epitome of life.

The first half of life consists of the capacity to enjoy without the chance; The last half consists of the chance without the capacity. Mark Twain

An elder law attorney will encounter challenging ethical issues on a daily

basis. However, none are more challenging than those encountered when dealing with a client who is experiencing diminished capacity. This presentation will discuss the most common ethical issues faced by elder law attorneys when dealing with clients who have diminished capacities.

1. Thou shall understand the difference between incapacity and

diminished capacity.

The lawyer’s determination regarding the client’s capacity is critical on a number of levels, not the least of which is whether the client has capacity to hire the attorney.1 Thus, the attorney must understand incapacity and diminished capacity to effectively represent the client, and to discharge the duties imposed on the attorney by Rule1.14.

Under the law, an adult is presumed competent unless declared otherwise by a court.2 “The criteria for a finding of incapacity differ among the states, but in all states, the law starts with the presumption of capacity.”3 It is only when the client demonstrates behaviors or someone expresses concerns about the client’s capacity, does the client’s capacity become suspect.4 Although stereotypes are inevitable, advanced age does not equate to diminished capacity.

1 See ABA Commission on Law & Aging and American Psychological Association, Assessment of Older Adults with Diminished Capacity: A Handbook for Lawyers at 13 (2005) (hereinafter Handbook), available for purchase from the ABA Commission on Law and Aging see http://apps.americanbar.org/abastore/index.cfm?section=main&fm=Product.AddToCart&pid=4280025 or available as a pdf from the APA www.apa.org/pi/aging/resources/guides/diminished-capacity.pdf. ButsSee a line of cases addressing the issue of the alleged incapacitated person’s right to substitute her own counsel (or hire her own counsel). 2 See ABA Commission on Law & Aging and American Psychological Association, Assessment of Older Adults with Diminished Capacity: A Handbook for Lawyers at 5,7 (2005) (hereinafter Handbook), For example, in the Federal Rules of Evidence, individuals are presumed to be competent to be witnesses. “Every person is competent to be a witness except as otherwise provided by the rules. Federal Rule of Evidence Rule 601(2008). 3 Handbook at 7. 4 For example, the Handbook notes that:

The law generally presumes that adults possess the capacity to undertake any legal task unless they have been adjudicated as incapacitated in the context of guardianship or conservatorship, or the party challenging their capacity puts forward sufficient evidence of incapacity to meet a requisite burden of proof.

Handbook at 5.

3

It is important to always keep in mind that capacity is fluid, rather than an all or nothing proposition. “[A] client with diminished capacity often has the ability to understand, deliberate upon, and reach conclusions about matters affecting the client's own well-being… [I]t is recognized that some persons of advanced age can be quite capable of handling routine financial matters while needing special legal protection concerning major transactions.”5 Some clients may reason better at certain times of the day.6 Additionally, some clients, especially of advanced age, may be able to grasp the big picture of the legal representation but have a harder time grasping a large number of details. In addition, keep in mind that the level of capacity needed may be different depending on the legal action to be undertaken. An excellent tool for lawyers is the ABA/APA manual

Assessment of Older Adults with Diminished Capacity: A Handbook for

Lawyers. The manual is available for purchase from the ABA or may be

downloaded from the APA website. In assessing capacity, remember to consider time of day and location of the

interview, outside forces, the client’s physical health medications, physical setting of the interview, conduct of interview, and amount of time available for the interview. The lawyer’s decision, then, is whether to permit the client to perform a certain legal task or execute a specific document.7 The Comments to Maine Rule of Professional Conduct 1.14 are helpful guides in looking at how to work with clients who have diminished capacity. Comment six of Rule 1.14 guides the attorney by suggesting that:

In determining the extent of the client’s diminished capacity, the lawyer should consider and balance such factors as: the client’s ability to articulate reasoning leading to a decision, variability of state of mind and ability to appreciate consequences of a decision; the substantive fairness of a decision, and the consistency of a decision with the known long-term commitments and values of the client. In appropriate circumstances, the lawyer may seek guidance from an appropriate diagnostician.8

It is very possible to have a client whose capacity is diminished, may have periods of lucidity but diminished capacity at other times. A client who has not been declared legally incapacitated will not have a guardian, but may have an agent under a durable power of attorney who is authorized to make decisions for the

5 Maine Rules of Professional Conduct Rule 1.14, cmt. 1 (2002). 6 The phenomena of sun downing should be very familiar to elder law attorneys. It refers to the fact that some elderly people begin to decline in mental capabilities as the day moves into late afternoon. See Robert Fleming and Rebecca Morgan, Lawyer’s Ethical Dilemmas: a “Normal” Relationship when Representing Demented Clients and Their Families, 35 Ga L. R. 735 (2001) 7 Edwin M. Boyer, Representing the Client with Marginal Capacity-Challenges for the Elder Law Attorney–A Resource Guide ; prepared for Stetson CLE Advocacy for Clients With Diminished Capacity, April 2004 and 12 NAELA Quarterly 3 (Spring 1999). 8 Maine Rules of Professional Conduct, Rule 1.14, cmt. 6 (2002).

4

client. A client with diminished capacity places a higher burden on the attorney in the representation of the client.

Consider the obligation under Rule 1.2 for the client to make a decision

whether to accept or reject a settlement offer. A client with diminished capacity may be able to make such a decision, but the attorney may need to consider the presentation of the information (as well as the timing) and amount of the information in order for the client to make a decision. For example, the attorney may need to break the information down into smaller parts or to explain the larger concepts with less detail. The attorney must be sure to give sufficient information for the client to be able to give informed consent as defined in the rules:

“Informed consent” means a person’s agreement to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct. Whether a client has given informed consent to representation shall be determined in light of the mental capacity of the client to give consent, the explanation of the advantages and risks involved provided by the lawyer seeking consent, the circumstances under which the explanation was provided and the consent obtained, the experience of the client in legal matters generally, and any other circumstances bearing on whether the client has made a reasoned and deliberate choice.9

Thus, consider: Is client able to give informed consent? That is, can the client articulate a reason for her decision, can she appreciate the consequences of the decision, is the decision consistent with her known long-term values and commitments?10 What is the legal task at hand? Are there outside forces impacting the client’s decision-making process?

When representing clients whose capacity is diminished, an attorney should

consider the time of day of the interview. When possible, break the interview into multiple, shorter interviews as it may be difficult for a client to concentrate for long periods of time. Change the location and the physical environment–will it be more helpful if you went to the client whether than having the client come to your office? In addition, look at the physical environment and make it as conducive to communication as possible. Keep good records and document in detail all conversations with client, including the time of day, those present, the questions asked, etc.11

9 Maine Rules of Professional Conduct, Rule 1.0(e) (2002). 10 Maine Rules of Professional Conduct1.14, cmt 6 (20042). The comment also suggested in determining the extent of the client’s diminished capacity that the attorney consider the “variability of state of mind” of the client. 11 Edwin M. Boyer, Representing the Client with Marginal Capacity-Challenges for the Elder Law Attorney–A Resource Guide ; prepared for Stetson CLE Advocacy for Clients With Diminished Capacity, April 2004 and 12 NAELA Quarterly 3 (Spring 1999).

5

The elder law attorney must have a firm grasp of the difference between

diminished capacity and just being different. Clients may be “eccentric”12 but still have the capacity needed to make binding decisions. Unfortunately, a client’s unusual actions or decisions may be judged differently based on the color of his/her hair. It is important for the attorney to determine the client’s capacity to make decisions not whether the attorney agrees with the correctness of the decisions. To that end it is also important to preserve a client’s autonomy. All adults have the right to make “bad” decisions. Just because a person is elderly and makes bad decisions does not mean that the person lacks capacity to manage the person’s own affairs.

2. Thou shall attempt to maximize the client’s capacity.

Elder law attorneys need to recognize the diminished capacity may be resolved by the attorney intentionally understanding the importance of maximizing a client’s capacity, through adjusting for physical limitations, utilizing effective interviewing techniques, and not overreacting to bad decision-making on the part of the client.13 To maximize the client’s capacity during the interview process, the attorney must seek to create an environment that allows the client to interact as fully as possible with the lawyer. Rule 1.4 of the Maine Rules requires that attorney to effectively communicate with clients in order to give them the information they need to make informed decisions.14 The point is that the lawyer needs to communicate with the client as effectively as possible, guided by the client’s needs, not the lawyers. Client interviewing is an art, and it is not a “one size fits all” process. There are a number of articles written about how to communicate effectively with clients and how to make an elder law office “elder-friendly.”15

NAELA Aspirational Standard addresses the interviewing techniques that

may be used to give the client’s capacity full potential: The Elder Law attorney … Adapts the interview environment, timing of meetings, communications and decision-making processes to maximize the client’s capacities.16

12 Merriam-Webster on line defines an eccentric as “a person who behaves in odd or unusual ways….”; http://www.merriam-webster.com/dictionary/eccentric 13 See Maine Rules of Professional conduct, Rule 1.14 (2002). 14 Maine Rules of Professional Conduct, Rule 1.4 (2002). The suggestions in this section can be used for and be useful with all clients, whether clients may or may not have diminished capacity. 15 Edwin M. Boyer, Representing the Client with Marginal Capacity-Challenges for the Elder Law Attorney–A Resource Guide ; prepared for Stetson CLE Advocacy for Clients With Diminished Capacity, April 2004 and 12 NAELA Quarterly 3 (Spring 1999); The Mini Mental State Examination (MMSE) (Folstein, Folstein and McHugh, 1975). 16 NAELA Aspirational Standards, Standard E.3 (2005).

6

The comment to this standard offers steps that should be taken: Different interviewing techniques may be used to maximize client capacity. These include changing the time and location of meetings, shortening the length of the interview, breaking the interview into a series of short interviews conducted over a period of time, using a different communication style, using visual aids, changing the amount of information provided to the client, and changing the process of reaching a decision, in order to maximize the client’s ability to participate in the representation and to make decisions. Gradual counseling (a series of shorter interviews) may by itself overcome any deficiency in the client’s decision-making capacity. Other techniques, such as conducting the interview in the client’s home, or in the afternoon instead of the morning may be needed. The interview should be conducted in the client’s primary language.17

Although this goes without saying (hopefully), the comment goes on to conclude that the techniques should be used first before reaching any decision that the client does not have sufficient capacity or protective action under Rule 1.14 should be taken.18 Initially an elder law attorney should consider if the client has physical limitations which may be impeding his/her abilities in the representation. An elder law client may be experiencing vision loss, hearing loss, need assistance with ADLS or IADLs or have some kind of physical limitation or health problem that may impede the client’s ability to demonstrate capacity or interfere with the client’s understanding. The attorney should consider the office and specifically the room where the interview is taking place to ensure that the location is “elder-friendly” and designed to maximize communication. When first setting up a law office an elder law attorney may want to consider how the physical environment of the law office may be designed to accommodate the elderly client who has physical limitations.19

For example, assume a client has a hearing loss. As a result the client may give an incorrect response to a question or not answer a question at all. The attorney might want to consider how much background noise is in the office. Office equipment makes a lot of noise and that type of noise can create a barrier to an effective communication. Lights as well can make noise. No music should be playing in the office and the attorney should be sensitive to the amount of “routine” noise that goes on in a law office. A client for various reasons may not admit to having a problem hearing. The attorney should consider the steps the attorney may take to ensure the client can hear the conversation. The attorney should sit facing the client, and may even need to sit next to the client rather than across the desk

17 Aspirational Standard E-3, comments (2005)(citations omitted). 18 Aspirational Standard E-3, comment (2005). 19 See Rebecca C. Morgan, From the Elder-Friendly Law Office to the Elder-Friendly Courtroom: Providing the Same Access and Justice to All, 2 NAELAJ 325 (2006).

7

from the client, and be sure that if the client has a “good ear,” the attorney sits on that side of the client. Additionally, the attorney should be aware of the shadows and lighting to enable the client to see the attorney’s mouth while he/she is talking. Finally, the attorney’s hands should not be covering the attorney’s mouth when the attorney is speaking.20

If a client has a visual impairment, the attorney should be sure to have

adequate lighting in the office, use non-glare paper, appropriate colors and larger fonts. If a client is unable to read a document because of a visual impairment, the document could be read to the client or there is software that will read a document aloud.

Clients may have memory problems or difficulty understanding, so the attorney needs to consider the how’s and when’s of communicating with such a client. Memory loss does not necessarily mean incapacity. As far as the how’s of communicating, clients may be nervous, tired or unhappy to be at the attorney’s office. A client may be in crisis, which can impact the client’s comprehension of the attorney’s advice. So the attorney needs to think back to the factors in comment six to Rule 1.14, and consider how the attorney is communicating with the client. Breaking information into smaller increments, avoiding legalese, using visual aids, giving the client checklists or documents to take home to review, asking the client to explain back to the attorney what the attorney told the client (reflective listening),21 and having a series of shorter interviews with the client are all useful tools to help with the “how” of effective communication. If the client just does not “get it,” before assuming that the client is incapacitated, the attorney should first determine whether the reason the client does not get it is because of a failing on the part of the attorney—that there is a failure of communication on the part of the attorney and thus the attorney has to fix the problem.

As far as the whens of the interview, the timing, including the time of day

and the length of the interview can be relevant. Some individuals with dementia may be better at certain times of the day than others.22 Attention spans for anyone can vary, so the attorney needs to consider the length of the interview as well as the time of day of the interview. Frequent breaks may help as well as some refreshments to help keep the client’s energy level up and attention focused.

the client experienced a loss or is having health problems? Is the client

taking medications that may affect the client’s capacity and comprehension? A client may be depressed. All of these and more may affect a client’s ability to

21 Reflective listening can be described as active listening and being able to “reconstruct what the client is thinking and feeling and to relay this understanding back to the client.” Lara Lynn Lane, Reflective Listening, Gale Ency. of Psych. (2nd ed., Gale Group 2001). 22 The Mayo Clinic defines sundowning as “a state of confusion at the end of the day and into the night.” Glenn Smith, Ph.D., Sundowning: Late-day Confusion, http://www.mayoclinic.com/health/sundowning/HQ01463 (April 28, 2011).

8

comprehend, but alone do not mean that the client lacks capacity.23

If the elder law attorney has observed first hand that the client is demonstrating signs of lacking capacity, the attorney should take steps to maximize the client’s capacity. The attorney should focus on the client’s ability to make a decision, rather than react to what the client is doing. 24 Assuming the “cause” of the client’s apparent diminished capacity is not the attorney’s failure to effectively communicate with the client, the attorney then needs to think about whether there are health or personal issues that may be causing what appears to be diminished capacity on the part of the client. The lawyer will need to appropriately ask the client regarding the client’s demeanor and any reasons for that demeanor. This may be an easier task with a returning client than a new client or when the attorney has some background information about the client. 3. Thou shall maintain as much as possible a normal relationship Concluding that the client has diminished capacity does not mean that the criteria under Rule 1.14(b) for protective action will be met.25 Rule 1.14(a) indicates that even if diminished capacity exists that the attorney must make a further determination that protective action is necessary and if protective action is not needed then the attorney must maintain as normal a relationship as he/she can. It states that “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.”26

The idea of maintaining as normal a client-attorney relationship as possible reflects the idea of client control or autonomy. NAELA Standard E-1 provides that 23 For an additional discussion of steps an attorney may take to help maximize a client’s capacity, see Handbook at 27-30. 24 Handbook at 13:

There is no single indicator that provides a consistent, clear signal that an older adult is functioning with diminished capacity. However, there are markers that, when considered together, may reflect diminished capacity. These signs should not be taken in and of themselves to be proof of diminished capacity. Instead, they may indicate a need for further evaluation of capacity by an independent professional if the signs are present in sufficient number and/or severity. In noting potential signs of incapacity, it is important to keep in mind that the focus is on decisional abilities rather than on cooperativeness or affability. It may be challenging to disentangle one’s reactions to a client’s interpersonal style from observations of the client’s cognitive, emotional, or behavioral problems.

25 (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. 26 Maine Rules of Professional Conduct, Rule 4.14 (2002).

9

an elder law attorney “[r]espects the client’s autonomy and right to confidentiality even with the onset of diminished capacity.”27 According to the comments to Standard E-1,

“[a]ttorneys have special ethical responsibilities when representing clients whose capacity for making decisions may be diminished. Clients with diminished capacity are entitled to the same respect and attention as any other client. Capacity exists on a continuum, and is normally not an all-or-nothing proposition. Clients may have the ability to make some decisions but not others. Certain strategies can improve the comprehension and decision-making ability of a person with diminished capacity.”28

Communication is part of the normal client-attorney relationship. Rule 1.4 requires many things of the attorney, including the duty to “promptly inform the client of any decision or circumstance with respect to which the client's informed consent … is required by [the] Rules … reasonably consult with the client about the means by which the client's objectives are to be accomplished … keep the client reasonably informed about the status of the matter … promptly comply with reasonable requests for information…”29 and “explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.”30 The attorney needs to recognize that maintaining a normal relationship and effectively communicating with a client who may have diminished capacity may be different than the client who does not have diminished capacity. Two comments to Rule 1.4 offer some guidance. Comment six gives an idea about the “type” of information to be given to the client: “[o]rdinarily, the information to be provided is that appropriate for a client who is a comprehending and responsible adult. However, fully informing the client according to this standard may be impracticable, for example, where the client … suffers from diminished capacity. See Rule 1.14.”31 In addition, there may be circumstances when the attorney may wait to tell the client information, “[i]n some circumstances, a lawyer may be justified in delaying transmission of information when the client would be likely to react imprudently to an immediate communication. Thus, a lawyer might withhold a psychiatric diagnosis of a client when the examining psychiatrist indicates that disclosure would harm the client.”32 In some cases, in order to have an effective communication, if the client wishes, it may be helpful for the client to have others with the client during the discussion.33 Even in circumstances where the elder has 27 NAELA Aspirational Standard E-1 (2005). 28 NAELA Aspirational Standard E-1, comments (2005). 29 Maine Rules of Professional Conduct, Rule 1.4(a) (2002). 30 Maine Rules of Professional Conduct, Rule 1.4(b) (2002). 31 Maine Rules of Professional Conduct, Rule 1.4, cmt. 6 (2002). 32 Maine Rules of Professional Conduct, Rule 1.4, cmt. 7 (2002).The comment goes on to provide that “[a] lawyer may not withhold information to serve the lawyer's own interest or convenience or the interests or convenience of another person.” Id. 33 Maine Rules of Professional Conduct, Rule 1.14, cmt. 3:

The client may wish to have family members or other persons participate in discussions

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“a legal representative, the lawyer should as far as possible accord the represented person the status of client, particularly in maintaining communication.”34 As provided in NAELA Aspirational Standard E.1., “[t]he Elder Law Attorney… [r]espects the client’s autonomy and right to confidentiality even with the onset of diminished capacity.”35 The comment to the standard notes that “[a]ttorneys have special ethical responsibilities when representing clients whose capacity for making decisions may be diminished. Clients with diminished capacity are entitled to the same respect and attention as any other client.”36 As comment eight to Rule 1.14 notes, “The lawyer's position in such cases is an unavoidably difficult one.”37 The comment to the standard notes that “[a]ttorneys have special ethical responsibilities when representing clients whose capacity for making decisions may be diminished. Clients with diminished capacity are entitled to the same respect and attention as any other client.”38

4. Thou shall take protective action only when the rule allows it.

However if the client has diminished capacity and satisfies the requirements of Rule 1.14(b) then the attorney can take protective action. Maine Rule 1.14(b) states:

(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.39

Further, under Maine Rule 1.14(c) the attorney is permitted as part of the protective action to reveal confidential information:

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

with the lawyer. When necessary to assist in the representation, the presence of such persons generally does not affect the applicability of the attorney-client evidentiary privilege. Nevertheless, the lawyer must keep the client's interests foremost and, except for protective action authorized under paragraph (b), must to look to the client, and not family members, to make decisions on the client's behalf.

34 Maine Rules of Professional Conduct, Rule 1.14, cmt. 2 (2002). 35 NAELA Aspirational Standards, Standard E.1. (2005). 36 NAELA Aspirational Standard, Standard E.1 (citations omitted). 37 Maine Rules of Professional Conduct, Rule 1.14, cmt. 8 (2002). 38 NAELA Aspirational Standard, Standard E.1 (citations omitted). 39 Maine Rules of Professional Conduct, Rule 1.14(b) (2002).

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extent reasonably necessary to protect the client's interests.40

Disclosures must be used with care because of the potential impact on the

client.41 In a great example of understatement, when cautioning about the potential negative impact of disclosures, shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client.42

Taking protective action has a major impact on a “normal” client-attorney relationship. Consider the elements of such a relationship and those elements that are seemingly at odds with taking protective action: loyalty, confidentially, client control or autonomy and conflicts—at least from the standpoint that the attorney may be in conflict with the client’s position or wishes.

First the question is when should a lawyer take protective action? Rule 1.14(b) says when: when the attorney has a reasonable belief that

the client in fact has diminished capacity, “is at risk of substantial physical, financial or other harm unless

action is taken and” the client “cannot adequately act in the client's own interest”

then the attorney is authorized to “take reasonably necessary protective action….”43

Comment five to Rule 1.14 explains it this way: “[i]f a lawyer reasonably believes that a client is at risk of substantial physical, financial or other harm unless action is taken, and that a normal client-lawyer relationship cannot be maintained as provided in paragraph (a) because the client lacks sufficient capacity to communicate or to make adequately considered decisions in connection with the representation, then paragraph (b) permits the lawyer to take protective measures deemed necessary.”44

This reasonable belief must be based on the information that the attorney

40 Maine Rules of Professional Conduct, Rule 1.14(c)(2002).

41 Maine Rules of Professional Conduct, Rule 1.14, cmt 8: Disclosure of the client's diminished capacity could adversely affect the client's interests. For example, raising the question of diminished capacity could, in some circumstances, lead to proceedings for involuntary commitment. Information relating to the representation is protected by Rule 1.6. Therefore, unless authorized to do so, the lawyer may not disclose such information. When taking protective action pursuant to paragraph (b), the lawyer is impliedly authorized to make the necessary disclosures, even when the client directs the lawyer to the contrary. Nevertheless, given the risks of disclosure, paragraph (c) limits what the lawyer may disclose in consulting with other individuals or entities or seeking the appointment of a legal representative. At the very least, the lawyer should determine whether it is likely that the person or entity consulted with will act adversely to the client's interests before discussing matters related to the client. The lawyer's position in such cases is an unavoidably difficult one.

42 Maine Rules of Professional Conduct, Rule 1.14(a) (2002). 43 Maine Rules of Professional Conduct, Rule 1.14(b) (2002). 44 Maine Rules of Professional Conduct, Rule 1.14, cmt. 5 (2002).

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has, whether from the information from the client, the attorney’s observations, consultation with a clinician, or whatever. This is why it is important to think about what information the attorney may gather and how, but this information serves as the foundation for the reasonable belief requirement or protective action. But just believing the client has diminished capacity is not enough to be authorized to act under 1.14(b). The attorney must also reasonably believe that there is a risk of substantial harm if the attorney does not act. This is a high threshold regarding the likelihood of harm---because at this point the attorney steps out of the role of attorney to take protective action for the client. Lastly, the client is unable to act in the client’s own interest, and it thus falls to the attorney to take action for the client. The factors in comment six guide the attorney’s determination of how much the client’s capacity is diminished, by directing the attorney to “consider and balance such factors as: the client's ability to articulate reasoning leading to a decision, variability of state of mind and ability to appreciate consequences of a decision; the substantive fairness of a decision; and the consistency of a decision with the known long-term commitments and values of the client.”45 Aspirational Standards E-4 through E-6 are helpful in determining when to take protective action. Standard E-4 tracks the criteria of 1.14 (b) by providing that an elder law attorney “[t]akes appropriate measures to protect the client when the attorney reasonably believes that the client: (1) has diminished capacity, (2) is at risk of substantial physical, financial or other harm unless action is taken, and (3) cannot adequately act in the client’s own interest.”46 The comment notes that “[c]apacity may be task-specific. The client may have the capacity to perform some tasks but not others.” 47 As a result, “the attorney should determine whether the client has sufficient capacity to perform the task at hand. Any protective action should be tailored to the needs of the client, be the least restrictive possible, be in the client’s best interest, and not harm the client or make the client’s situation worse.”48 If the attorney is taking protective action, the attorney “should be guided by such factors 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.”49 Clearly, the more the attorney knows about the client’s wishes and values, the better the chance that the attorney will pick the right action to take. The converse is also true, the less the attorney knows about the client’s wishes and values, and then the attorney will need to consider the client’s best interests in

45 Maine Rules of Professional Conduct, Rule 1.14, cmt. 6 (2002). 46 Aspirational Standard E-4 (2005). 47 Aspirational Standard E-4, cmt. (2005). 48 Aspirational Standard E-4, cmt. (2005). (citations omitted). 49 Maine Rules of Professional Conduct Rule 1.14, cmt. 5 (2002). See also Aspirational Standard E-5 and comment. (2005).

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deciding the action to take.50 Before determining that protective action is needed, the attorney should consider whether the client’s family or other support system might be sufficient and obviate the need for more formal protective action. Such support system has the advantage of being less restrictive and minimally intrusive.51

5. Thou shall take the least restrictive protective action necessary.

Comment five to Rule 1.14 sets out six possible protective measures that

may be taken where appropriate:

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 or consulting with support groups, professional services, adult-protective agencies or other individuals or entities that have the ability to protect the client.52

As the comment goes on to note, the attorney must “be guided by such factors 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.”53 The comment articulates the concept of least restrictive alternative,54 so when determining what action to take, the action should be appropriate for situation, tailored for the client’s needs, and no more help than the client needs. Although guardianship is a protective action, it is the most intrusive and therefore should only be used as a last resort and only when no other protective action would be sufficient and appropriate.55 Black’s Law Dictionary defines guardianship as:

The fiduciary relationship between a guardian and a ward or other incapacitated person, whereby the guardian assumes the power to make decisions about the ward's person or property… A guardianship is almost always an involuntary procedure imposed by the state on the ward.56

50 Aspirational Standard E-5, cmt. “This responsibility to determine the client’s best interests increases with the extent to which the client cannot determine his or her own best interests. Two principal factors determine what is in the client’s best interest. First, are the client’s rights, remedies, and economic interests. Second, is the extent to which the attorney knows what the client would decide if the client were capable of deciding.” Id. 51 Aspirational Standard E-5, cmt. (2005). 52 Maine Rules of Professional Conduct, Rule 1.14 cmt. 5 (2002). 53 Id. 54 Id. 55 See NAELA Aspirational Standards, Standard E(7) & cmts. at 26. 56 Black’s Law Dictionary (9th ed., West 2009) (available at Westlaw). Black’s also provides definitions of “types” of guardianships:

14

Comment five reflects the use of a durable power of attorney as a frequently

used tool for planning for incapacity and is viewed as a lesser restrictive alternative than a guardianship. But the question that must be considered is whether the client wants to sign a durable power of attorney and whether the client has the capacity to do so.57

The other examples given in the comment involve services that may be

provided to the client or agencies that may provide assistance. However, the next areas of inquiry are who arranges and pays for these services, whether the client can consent to the receipt of services, and whether the client consents to the attorney contacting these agencies on the client’s behalf? If the agency requires consent of a client to provide services, and the client is unable to consent, will a court proceeding be necessary so that a court orders the provision of services? If the client refuses or is unable to consent, under the Rule, the attorney may make “necessary disclosures”58 in contacting these agencies, but must consider the ramifications of doing so, and the impact on the client-attorney relationship.

Comment five limits the actions by directing that in any protective action,

the client’s decision-making capacity should be maximized. The Comment encourages preservation of the client’s autonomy, which is consistent with the concepts of least restrictive alternative and limited guardianships expressed in the Uniform Guardianship and Protective Proceedings Act.59 The Rule recognizes that when the attorney is considering taking protective action under 1.14(b) the attorney may need to disclose information that would be protected under Rule 1.6(a).60 Thus, the attorney should consult with someone who has experience with the issues faced by a client. For example, if the client has been

guardianship of the estate. A guardianship in which the guardian can make decisions only about matters regarding the ward's assets and property. guardianship of the person. A guardianship in which the guardian is authorized to make all significant decisions affecting the ward's well-being, including the ward's physical custody, education, health, activities, personal relationships, and general welfare. plenary guardianship. A guardianship in which the guardian can make decisions about both the ward's estate and the ward's person.

Id. 57 Lawrence A. Frolik and Mary F. Radford, ‘Sufficient Capacity’: The Contrasting Capacity Requirements for Different Documents, 2 NAELA J. 303 (2006). 58 Maine Rules of Professional Conduct Rule 1.14, cmt. 8 (2002). 59 Unif. Guardianship & Protective Proc. Act § 102 (1997).

60 Maine Rules of Professional Conduct Rule 1.14(c) (2002):

“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.”

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diagnosed with dementia, then the attorney should consult with a medical professional with training and experience of treating patients with dementia. If the attorney suspects the client needs a guardian, then the attorney should consult with a doctor who has experiences in assessing a person’s capacity and functional ability.

Filing an incapacity and guardianship proceeding would be considered protective action under Rule 1.14(b).61 It should be used when no lesser restrictive alternatives could meet the needs of the client.62

61 See Maine Rules of Professional Conduct 1.14(b) (2002):

“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.”

See also Client Under a Disability, ABA Formal Ethics Op. 96-404 (1996). See also generally the Restatement (Third) of the Law Governing Lawyers § 24 cmt. e (2000):

Seeking appointment of a guardian. When a client's diminished capacity is severe and no other practical method of protecting the client's best interests is available, a lawyer may petition an appointment of a guardian or other representative to make decisions for the client. A general or limited power of attorney may sometimes be used to avoid the expense and possible embarrassment of a guardianship. The client might instruct the lawyer to seek appointment of a guardian or take other protective measures….

A lawyer is not required to seek a guardian for a client whenever the conditions of Restatement (Third) of the Law Governing Lawyers § 4 (2000) are satisfied. For example, it may be clear that the courts will not appoint a guardian or that doing so is not in the client's best interests.

Id. at §16 & §16 cmt. d.

62 See Maine Rules of Professional Conduct Rule 1.14, cmt. 7 (2002):

If a legal representative has not been appointed, the lawyer should consider whether appointment of a guardian ad litem, conservator or guardian is necessary to protect the client's interests. Thus, if a client with diminished capacity has substantial property that should be sold for the client's benefit, effective completion of the transaction may require appointment of a legal representative. In addition, rules of procedure in litigation sometimes provide that minors or persons with diminished capacity must be represented by a guardian or next friend if they do not have a general guardian. In many circumstances, however, appointment of a legal representative may be more expensive or traumatic for the client than circumstances in fact require. Evaluation of such circumstances is a matter entrusted to the professional judgment of the lawyer. In considering alternatives, however, the lawyer should be aware of any law that requires the lawyer to advocate the least restrictive action on behalf of the client.

16

Taking protective action, especially the initiation of an incapacity/guardianship proceeding, for a client may be one of the more stressful situations for an elder law attorney to face. This action really has the potential to strain the typical client-attorney relationship and may put the attorney at odds with the client’s wishes, while the attorney is actually trying to help the client. The attorney needs to recognize that this may effectively end the attorney’s representation of the client if the client has the capacity to fire the attorney. Rule 1.16(a)(3) notes that a client may discharge an attorney: “(a) Except as stated in paragraph (c), a lawyer shall not represent a client or, where representation has commenced, shall withdraw from the representation of a client if: …(3) the lawyer is discharged.”63 However, for a client in a 1.14 situation, discharge of the attorney may not be the same act as for other clients not in that situation. Comment six to Rule 1.16 offers that “[i]f the client has severely diminished capacity, the client may lack the legal capacity to discharge the lawyer, and in any event the discharge may be seriously adverse to the client's interests. The lawyer should make special effort to help the client consider the consequences and may take reasonably necessary protective action as provided in Rule 1.14.”64 An attorney faced with a 1.14 situation may in appropriate circumstances terminate the representation under 1.16(b),65 but must do so with care. According to ABA Ethics opinion 96-404,

While Rule 1.14 permits a lawyer to take protective action in such situations, it does not compel the lawyer to do so, and many lawyers are uncomfortable with the prospect of having to so act. The committee considers that withdrawal is ethically permissible as long as it can be

See also NAELA Aspirational Standards, Standard E(7) at 26 (“Recommends guardianship or conservatorship only when all possible alternatives will not work”).

63 Maine Rules of Professional Conduct Rule 1.16(a)(3) (2002). 64 Maine Rules of Professional Conduct Rule 1.16 cmt. 6 (2002). See also, e.g., SC Adv. Op. 05-11 (2005) (available at 2005 WL 1704509). 65 Maine Rules of Professional Conduct Rule 1.16(b) (2002):

Except as stated in paragraph (c), a lawyer may withdraw from representing a client if: (1) withdrawal can be accomplished without material adverse effect on the interests of the client; (2) the client persists in a course of action involving the lawyer's services that the lawyer reasonably believes is criminal or fraudulent; (3) the client has used the lawyer's services to perpetrate a crime or fraud; (4) the client insists upon taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement; (5) the client fails substantially to fulfill an obligation to the lawyer regarding the lawyer's services and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled; (6) the representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client; or (7) other good cause for withdrawal exists.

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accomplished "without material adverse effect on the interests of the client." Rule 1.16(b).66

Consider instead when the attorney believes the situation has deteriorated to the point the attorney is considering a permissive withdrawal under 1.16(b). Perhaps, then, that is an indicator that the attorney needs to take protective action under 1.14.

6. Thou shall treat every client with dignity and respect regardless of the

client’s capacity.

It goes without saying that clients need to be treated with respect and dignity no matter the challenges in representing them but is always a good reminder. Comment two to Rule 1.4 states, “the fact that a client suffers a disability does not diminish the lawyer's obligation to treat the client with attention and respect.”67

66 Client Under a Disability, ABA Formal Ethics Op. 96-404 (1996). The ethics committee, in a footnote accompanying the text explained that:

While Rule 1.16(b)(5) also permits withdrawal "if the representation has been rendered unreasonably difficult by the client," a disability over which the client has no control is likely not the sort of "difficulty" the drafters had in mind in crafting this provision. Similarly, we do not believe that the final "catch-all" provision in Rule 1.16(b)(6) ("other good cause for withdrawal") automatically authorizes withdrawal where the client becomes disabled.

Id. at note 7. 67 Maine Rules of Professional Conduct Rule 1.14, cmt. 2 (2002)

5

CONSIDERATIONS IN LITIGATING MENTAL CAPACITY ISSUES: SHOULD GRANDMA BE SUED, AND HOW WOULD GRANDMA

RESPOND?

Bruce F. Rogers Bainbridge, Mims, Rogers & Smith, LLP

Birmingham, Alabama

William S. Pritchard, III Pritchard, McCall & Jones, LLC

Birmingham, Alabama

November 17,2006

Written materials prepared by:

Rebecca C. Eubanks Bainbridge, Mims, Rogers & Smith, LLP

Birmingham, Alabama

O<:tober 16,2006

LITIGATING MENTAL CAPACITY ISSUES

"It shall be so, Madness in great ones must not unwatched go," - Shakespeare (Hamlet)

1. INTRODUCTION

Almost all of us consider ourselves a bit crazy sometimes. However, an unfortunate social

reality is the fact that, at some point, many of us need protection from ourselves, In some instances,

we must seek that protection from the courts, Judicial intervention for mental capacity issues in

Alabama is controlled by the provisions of the Alabama Uniform Guardianship and Protective

Proceedings Act (the "Act"), I The Act broadly defines an incapacitated person as "[a]ny person who

is impaired by reason of mental illness, mental deficiency, physical illness or disability, physical or

mental infirmities accompanying advanced age, chronic usc of drugs, chronic intoxication, or other

cause (except minority) to the extent of lacking sufficient understanding or capacity to make or

communicate responsible decisions." ALA. CODE § 26-2A-20(8).

People in today' s world are living longer and have more financial assets at their disposal.

As a result, mental capacity to care for oneself and/or manage money has become increasingly

important for senior citizens and their families, Family feuds over control of a parent or

grandparent's person and/or finances have become increasingly common. These battles often leave

the parent or grandparent caught in the middle. In August 2006, this trend was examined in a Wall

Street Journal article:

'ALA. CODE §§ 26-2A- I to -160. The Alabama Uniform Guardianship and Protective Proceedings Act provides for the appointment of guardians and conservators for both the mentally incapacitated and for minors. This CLE will focus on the Act as it applies to issues of mental capacity in adults and will not focus on the provisions of the Act that relate specifically to minors.

2

Some of the thorniest custody battles these days are over the care of elderly parents, spouses or grandparents. As longevity increases, a growing number of siblings and other family members arc fighting over where elderly parents should live, who should be their primary caregiver, and who should control their finances.

Senior custody battles are being propelled by a number of demographic shifts. As the population ages and more people live longer, more seniors are likely to eventually lose their mental or physical capacity, leaving decisions over their finances and personal care to others. What's more, families have grown increasingly fractured, with divorce and second marriages leading to tension among children and step families over the care of aging relatives.

October 16.2006

Rachel Emma Silverman, Lalesl Custody Bailie: Who Gels Mom, WALL ST. J., Aug. 17,2006, at Dl

(copy attached).

Advance planning for incapacity is always the ideal. In many instances, however, family

members contemplate legal action under the Act, seeking the appointment of a guardian andlor

conservator under certain circumstances. A guardian is responsible for care of the person, while a

conservator is responsible for care of the property.

The decision to initiate a guardianship or conservatorship proceeding should only be made

after careful consideration. Among the factors to be considered arc the fo llowing:

(1) Is the person mentally andlor physical ly incapacitated to the extent that he or she is no longer capable of living alone or managing business and financial affai rs?

(2) Has the person planned for the possibility of incapacitation by executing a power ofattomey (durable, financial, health~care, springing, etc.), nominating a guardian or conservator, or executing some other legal document?

(3) Is the person still capable of executing legal documents to address his or her incapacitation?

3

(4) Is someone already caring for the person ' s personal needs? If so, is that person acting appropriately?

(5) Is someone already handling the person's business and finances? Ifso, is that person acting appropriately?

(6) Is it possible for the family to agree upon a caretaker for the person without litigation?

(7) How wi ll the person allegedly in need of protection respond to litigation accusing him or her of being incapacitated?

October 16, 2006

Litigation may damage a petitioner's relationship with the person allegedly in need of

protection and with other family members. Additionally, litigation may be expensive. Judicial

intervention is not recommended, and legal action should only be commenced as a last resort. This

paper addresses the statutory framework and the mechanics of litigation under the Act.

II. JURISDICTION AND VENUE

The probate court has subject matter jurisdiction over guardianship and conservatorship

proceedings under the Act ALA. CODE §§ 26-2A-20(3) and 26-2A-31. "The venue for guardianship

proceedings for an incapacitated person is in the place where the incapacitated person resides or is

present at the time the proceedings are commenced." Id. § 26-2A-l 0 I. If an incapacitated person

has been institutionalized pursuant to court order, venue is also proper in the county of the court that

issued the order. Id.

In conservatorship proceedings where the person alleged to be incapacitated is an Alabama

resident, venue is proper in the probate court for the county of the person's residence. Id. § 26-2A-

132(1). If the person is not an Alabama resident, venue is proper in the probate court for any county

where property of the person is located. Id. § 26-2A-132(2).

4

October 16, 2006

Alabama law does not allow proceedings for the appointment of a guardian or conservator

to be removed from probate court to circuit court. However, section 26-2-2 of the Alabama Code

does provide [or removing the administration of guardianships and conservatorships to circuit court.

The basis for removal is the petit ioner's opinion that the "guardianship or conservatorship can be

better administered in the circuit court than in the probate court." ALA. CODE § 26-2-2. The removal

statute reads as follows:

!d.

The administration or conduct of any guardianship or conservatorship ... may be removed from the probate court to the circuit eourt, at any time before the final settlement thereofby the guardian or conservator of any such guardianship or conservatorship or guardian ad litem or next rriend or such ward or anyone entitled to support out of the estate o[ such ward without assigning any special equity, and an order or removal must be made by the court or judge upon the filing of a sworn petition by any such guardian or conservator or guardian ad litem or next friend for the ward or such person entitled to support out of the estate of such ward, reciting in what capacity the petitioner acts and that in the opinion of the petitioner such a guardianship or conservatorship can be better administered in the circuit court than the probate court."

In Ex parle Coffee County DHR, 771 So. 2d 485 (Ala. Civ. App. 2000), the local DHR filed

a petition [or conservatorship on behalf of an elderly woman. The probate court appointed a

guardian ad litem to represent the woman, who hired separate counsel, contested the petition, and

removed the case to circuit court. The circuit court accepted the removal and granted the woman's

motion to strike the petition, and DHR subsequently contested the circuit court's jurisdiction to enter

the order accepting removal before a conservatorship had been established. The Court of Civil

Appeals held that the circuit court's removal order was premature. Id. at 487. In reaching this

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October 16, 2006

conclusion, the court relied heavily upon the Alabama Supreme Court's interpretation of the state

statute allowing for removal of estates from probate to circuit court. Id., citing Ex parte Smith, 619

So. 2d 1374 (Ala. 1993). The court reasoned that the statutory language should be read literally such

that filing a petition for conservatorship is not a sufficient basis for removaL The court held that the

circuit court had no jurisdiction to act upon the removal petition until the probate court had acted

upon the conservatorship petition. ld. at 487.

III. GUARDIANSHIP

Guardianship addresses control over the person of an incapacitated individual. A guardian

is responsible for ensuring that a protected person's day·to-day needs for food, shelter, clothing,

medical care, and the like arc met. A guardian may also have limited financial responsibilities for

purposes of applying the protected person's funds to cover the cost of this support. Several factors

may contribute to the initiation of a guardianship proceeding:

Often, guardianship proceedings take place because no one has been designated ahead of time to handle an incapacitated adult's finances or health·care decisions, so a court must name someone to take on that responsibility. Guardianship proceedings can also happen if someone accuses a caregiver of neglect or financial impropriety and petitions the court to name a protecti ve guardian.

Rachel Emma Silverman, Lalesl Custody Bailie: Who Gels Mom, WALL ST. J., Aug. 17,2006, at D I.

A. Petitioning for Guardianship

The "guardian of an incapacitated person is responsible for the health, support, education,

or maintenance of the ward." ALA. CODE § 26·2A·I08. A guardianship proceeding may be initiated

by "an incapacitated person or any person interested in the welfare of the incapacitated person" by

filing a petition with the probate court. Id. § 26·2A· \ 02(a). Once a petition is filed, the court must

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October 16,2006

set a date for a hearing and must then take several additional steps. Id. § 26-2A-I02(b). First,

"unless the allegedly incapacitated person is represented by counsel," the court must appoint an

attorney for that person, and the court may also choose to make said attorney guardian ad litem, Jd,

The comment to this statute provides that "the court probably should detennine not only that private

counsel is in the case, but that such counsel has been engaged by the respondent acting without

undue pressure from others having some possible interest in the proceeding," (Emphasis added),

Second, the allegedly incapacitated person "must be examined by a physician or other qualified

person appointed by the court who shall submit a report in writing to the court," {d. Third, a court

representat ive (typically a social worker) must interview the person alleged to be incapacitated, Jd.

This court representative must also (a) interview the person who filed the petition for appointment

of a guardian, (b) visit the home of the allegedly incapacitated person, and (c) visit the place where

the allegedly incapacitated person will reside if a guardian is appointed, {d. The court representative

must then submit a written report to the court. Id,

The person alleged to be incapacitated has several rights with regard to the guardianship

hearing. The person "is entitled to be present at the hearing. .. to be represented by counsel, to

present evidence, to cross-examine witnesses, including the court-appointed physician or other

qualified person and any court representative, and upon demand to trial by jury." Id. § 26-2A- I 02(c).

As a departure from normal court proceedings, the statute allows for a request that the hearing be

closed. Id

Notice of the guardianship hearing must be given to the following persons:

(I) The person alleged to be incapacitated, her or his spouse (if any), and adult children, or if none, parents;

7

(2) Any person who is serving as guardian, conservator, or who has the care and custody of the person alleged to be incapacitated;

(3) In case no other person is notified under paragraph (1), at least one of the nearest adult relatives residing in this state, if any can be found; and

(4) Any other person as directed by the court.

October 16. 2006

ld. § 26-2A-I03. The person alleged to be incapac itated must be personally served with notice. Id.

B. Grounds fo r Appointing a Guardian

Appointment of a guardian is appropriate if the court " is satisfied that the person for whom

a guardian is sought is incapacitated2 and that the appointment is necessary or desirable as a means

of prov iding continuing care and supervision ofthe person of the incapacitated person." ALA. CODE

§ 26-2A-105(b). In appointing a guardian, the court should "encourage the development of

maximum self-reliance and independence of the incapacitated person and make appointive and other

orders only to the extent necessitated." fd. § 26-2A-l 05(a). Therefore, the court may choose to limit

the powers ora guardian, thereby creating a " limited guardianship." Id. § 26-2A- 105(c).

C. Criteria for Selecting Guardian

"Any qualified person may be appointed guardian of an incapacitated person." ALA. CODE

§ 26-2A- l 04(a). If the incapacitated person has nominated a guardian in a durable power of attorney,

the court must appoint this person as guardian unless the nominee is unqualified or other good cause

exists for refusing to honor the nomination. Id. § 26-2A- 104(b). Otherwise, the fo llowing

2For the statutory definition of an "incapacitated person," see Part I supra, quoting ALA. CODE § 26-2A-20(8).

8

individuals are to be considered for appointment, with priority in the order listed:

(1) The spouse of the incapacitated person or a person nominated by will ofa deceased spouse or by other writing signed by the spouse and attested by at least two witnesses or acknowledged;

(2) An adult child of the incapacitated person;

(3) A parent of the incapacitated person, or a person nominated by will of a deceased parent or by other writing signed by a parent and attested by at least two witnesses or acknowledged;

(4) Any relative of the incapacitated person with whom the person has resided for more than six months prior 10 the filing of the peti tion; and

(5) A person nominated by the person (other than in a durable power of attorney) who is caring for or paying for the care of the incapacitated person,

October 16, 2006

ld. § 26·2A· 1 04(c), Despite the existence of this hierarchy, the court may appoint a person with a

lower priority if the appointment is "in the best interest of the incapacitated person." ld. § 26·2A·

l04(d), "[TJhe paramount consideration of the law has always been the best interests of the ward

and of his estate, and lhis is pecul iarJy the case in the selection of his guardian." Richards v. Elrod,

221 So. 2d 378, 379 (Ala. 1969).

D. Duties of Guardianship

A guard ian is obligated to perform the following duties:

(1) Become or remain personally acquainted with the ward and maintain sufficient contact with the ward to know of the ward's capacities, limitations, needs, opportunities, and physical and mental health;

(2) Take reasonable care of the ward 's personal effects and

9

commence protective proceedings ifnecessary to protect other property of the ward;

(3) Apply any available money of the ward to the ward's current needs for health, support, education, or maintenance;

(4) Conserve any excess money of the ward for the ward's future needs, but if a conservator has been appointed for the estate of the ward, the guardian, at least quarterly, shall pay to the conservator money of the ward to be conserved for the ward's future needs; and

(5) Report the condition of the ward and of the ward 's estate that has been subject to the guardian's possession or control, as ordered by the court on petition of any person interested in the ward 's welfare or as required by court rule.

ALA. CODE §§ 26-2A-78 and 26-2A- I08. A guardian may also exercise other powers, such as

receiving money payable for the ward's support, taking physical custody of the ward and establishing

his or her place of abode, consenting to medical or professional care for the ward, consenting to the

marriage or adoption of the ward, initiating proceedings to compel the performance of a duty to

support the ward, and delegating appropriate responsibilities to the ward. ld.

E. Emergency Orders

Section 26-2A-J 07 of the Alabama Code gives the probate court authority to issue emergency

orders concerning temporary guard ians. Under this statute, the court has authority to appoint a

temporary guardian to serve for no more than fifteen days3 when (1) an incapacitated person has no

guardian, (2) an emergency exists, and (3) no other person appears to have authority to act under the

circumstances. ALA. CODE § 26-2A-107(a). The comment to this statute clarifies that the third

3In Jefferson County, temporary guardianships typically last longer than fifteen days because the Probate Court cannot schedule a hearing on a permanent petition within this short period of time.

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Octuber 16, 2006

criterion of subsection (a) is intended to "aid in preventing the mere institut ion of a guardianship

proceeding from upsetting an arrangement for care under a durable power of attorney." The court

is not required to give notice before appointing a temporary guardian. Id. § 26-2A·I07,

Also under th is statute, the court has the right to appoint a temporary guardian to serve for

no more than six months when an appointed guardian is not performing effectively. Id. § 26·2A·

1 07(b). The comment states that a court may appoint a temporary guardian pursuant to subsection

(b) upon a finding "that the welfare of the incapacitated person requires action and the appointed

guardian is not acting effectively." Persons seeking an emergency order under section 26·2A·107

of the Alabama Code must be mindful ofthe fact that the appointment ofa temporary guardian must

be followed up by a petition for permanent guard ianship. The court will not allow a temporary

guardianship to extend indefinitely.

IV. CONSERVATORSHIP

Conservatorship concerns control over the property of an incapacitated person,

Conservatorship is appropriate when a person can no longer manage his or her business and financial

affairs and either (1) the person has not executed an adequate legal instrument giving a third party

control over these affairs or (2) the third party charged with overseeing these affairs is acting

improperly.

A. Petitioning for Conservatorship

A petition for conservatorship may be filed by the person to be protected or anyone

"interested in the estate, affairs, or welfare of the person," ALA. CODE § 26·2A-133(a). Interested

persons with standing to petition for conservatorship include "a parent, child, guardian, custodian,

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()(:tober 16,2006

or any person who would be adversely affected by lack of effective management of the person ' s

property and business affairs," Id.

A petition for conservatorship must state the following:

(1) Interest of the petitioner;

(2) Name, age, residence and address of the person to be protected;

(3) Names and addresses of all persons known to the petitioner who must be given notice;

(4) General statement of person 's property, including estimated value;

(5) Reason why conservator is necessary;

(6) Whether bond has been relieved; and

(7) Name and address of person whose appointment is sought and basis for their claim to priority for appointment

Id. § 26-2A-133(b), The notice requirements for a conservatorship petition are the same as those for

a guardiaaship petition. Id. § 26-2A-134(a); supra Part ItA.

Once a petition for conservatorship has been filed, the court must set a date for hearing and

then take several additional steps. Id. § 26-2A-135(b). First, "[ u ]nless the person to be protected

has chosen counsel ," the court must appoint an attorney to represent that person and may also make

that attorney guardian ad litem, Id. Second, when "the alleged disability is mental illness, mental

deficiency, physical illness or disability, physical or mental infirmities accompanying advanced age,

chronic use of drugs, or chronic intoxication, the court must direct that the person to be protected

be examined by a physician or other qualified person designated by the court," Id. This designated

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October 16, 2006

individual will preferably not be "'connected with any institution in which the person is a patient or

is detained." Id The comment to the statute provides that "other qualified persons" may "include

perhaps psychologists and clinical psychologists if the court so detennines." The court has the

option of sending "a court representative to interview the person to be protected." Jd

As with hearings on the appointment of a guardian, the person to be protected by appointment

of a conservator has several rights related to the hearing, Id § 26-2A-135(d). The person to be

protected has the right to attend the hearing, "to be represented by counsel, at the person's expense,

to present evidence, to cross-examine witnesses, including any court-appointed physician or other

qualified person and any court representat ive, and upon demand to trial by jury." Id Either the

person to be protected or counsel may request that the hearing be closed, Id The comment to the

statute emphasizes that, "[s]incc there has not been any prior determination of incapacity, the person,

for whom a protective order is sought, should be extended the same rights as any other person whose

personal freedom may be restricted as a result of the proceedings." After the preliminary hearing

has been held but while the petition for conservatorship is still pending, "the court may preserve and

apply the property of the person to be protected as may be required for the support of the person or

dependents of the person." Id. § 26-2A-136(b)(I).

In McCallie v. McCallie , 660 So. 2d 584, 586-87 (Ala. 1995), one son petitioned to be

appointed conservator of his mother's estate, The mother had previously executed a durable power

of attorney in favor of the petitioner's brother, and the brother filed a motion to dismiss the petition

on behalf of his mother on the basis that "he was qualified and competent to manage his mother's

personal afTairs and, therefore, the appointment of hi s brother as conservator was unnecessary." Id.

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October 16, 2006

at 585. At the hearing on the petition, both brothers stipulated that their mother was incapacitated,

The court granted the motion to dismiss, and the petitioner appealed, arguing that the hearing was

procedurally defective because his mother did not attend the hearing, a guardian ad litem was not

appointed to represent the mother's interests, and the court did not designate a physician or other

qualified person to examine the mother.

The court addressed the petitioner's first procedural argument by noting that section 26-2A-

135 does not require the person to be protected (in this case, the mother) to be present at the hearing,

The Alabama Supreme Court presumed that the probate court properly determined, as required by

statute, that the mother's absence was in her best interest. Id. at 586. Next, the court found that the

court was not required to appoint a guardian ad litem because the mother was adequately represented

by an attorney hired by her son pursuant to his authority as power ofauorney. Id at 587, The court

noted that "nothing in the record remotely suggests that the power of attorney was acquired by

improper means or that [the brother} was not carrying out his mother's wishes in contesting the

petition," despite the fact that the petitioner suggested his brother may have unduly influenced or

manipulated his mother. Id Finally, the court found that, because both parties stipulated to the

mother's incapacity, there was no need for the court to appoint a physician or other qualified person

to examine her. Id

B. Grounds for Appointing a Conservator

The grounds for granting a petition to appoint a conservator or issue another type of

protective order are as follows:

(i) the person is unable to manage property and business affairs effectively for such reasons as mental illness, mental deficiency,

14

physical illness or disability, physical or mental infirmities accompanying advanced age, chronic use of drugs, chronic intoxication, confinement, detention by a foreign power, or disappearance; and that (iiJ (aaJ the person has property that will be wasted or dissipated unless property management is provided, or that (bb) funds are needed for the health, support, education, or maintenance of the person or of those entitled to the person's support and that protection is necessary or desirable to obtain or provide the funds.

O-:tober 16. 2006

ALA. CODE § 26-2A-130(c). As with guardianship orders, the probate court should only issue

conservatorship orders to the extent necessary in light of an incapacitated person's particular

limitations. Id. § 26-2A-136(a). The court should "encourage the development of maximum self-

reliance and independence of a protected person." Id.

c. Criteria for Selecting Conservator

"The court may appoint an individual or a corporation with general power to serve as trustee

or conservator of the estate of a protected person." ALA. CODE § 26-2A-138(aJ. The following

individuals and/or corporations are to be considered for appointment, in the order listed:

(1) A conservator, guardian of property, or other like fiduciary appointed or recognized by an appropriate court of any other jurisdiction in which the protected person resides;

(2) An individual or corporation nominated by the protected person who is 14 or more years of age and of sufficient mental capacity to make an intelligent choice;

(3) An attorney-in-fact under a valid durable power of attorney previously executed by the protected person and giving the attorney-in-fact reasonably broad powers over the property of the protected person;

(4) The spouse of the protected person, or a person nominated by the will of a deceased spouse to whom the protected person was married at the decedent's death and the protected person

15

has not remarried;

(5) An adult child of the protected person;

(6) A parent of the protected person, or a person nominated by the will of a deceased parent;

(7) Any relative of the protected person who has resided with the protected person for more than six months before the filing of the petition;

(8) A person nominated by one who is caring for or paying benefits to the protected person; and

(9) A general guardian or sheriff for the county who must be appointed and act as conservator when no other fit person applied for appointment or qualifies.

October 16, 2006

Jd. The court may elect to appoint a person with a lower priority if the appointment is in the best

interest of the protected person. Id. § 26-2A-138(b).

The court will typically require a conservator to furnish bond. See id. § 26~2A~ 130. Before

filing a petition for conservatorship, attorneys should inquire as to whether the prospective petitioner

is "bondable." If the petitioner has filed for bankruptcy or has other financial problems, he or she

may be unable to furnish bond and thus unable to serve as conservator. This issue should be

addressed up~ front.

D. Duties of Conscn'ator

A conservator is authorized to invest the funds of the protected person in the same manner

as a trustee. ALA. CODE § 26-2A-152(b); Edward D. Jones & Co., LP v. Ventura , 907 So. 2d 1035 ,

1041 (Ala. 2005) (holding that conservator had power to enter into investment agreements on behalf

of protected person). "A conservator may expend or distribute income or principal of the estate ..

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October 16, 2006

. for the health, support, education, or maintenance of the protected person and dependents." ALA.

CODE § 26~2A~1 53(a). In making these distributions, the conservator must consider the

recommendations of a guardian, if any. fd. The conservator must make distributions in light of the

size of the estate , the likely duration of the conservatorship, the standard of living to which the

protected person and dependents are accustomed, and other sources of support available to the

protected person. fd.

A conservator also has numerous powers with respect to the assets of the protected person.

Some of these powers include the ability to deposit funds in financial institutions, vote a security,

insure assets, borrow or loan money, payor contest claims, pay taxes and other expenses, and

making distributions to or for the benefit of the protected person and his or her dependents. fd. § 26~

2A-152(c). All of these powers may be exercised without court authorization, although there are

certain other powers that may only be exercised with prior court approval, such as the sale of real

estate held by the estate. See id. § 26-2A-152.

Conservators are obligated to consider the protected person's estate plan in making

investments and distributions. fd. § 26-2A-155. The conservator must take into account the

protected person's will, any revocable trust created by the protected person, and any arrangements

made by the protected person for benefits to others upon his or her death. fd.

Conservators are generally held to the prudent person standard. Jd. § 26-2A-145. However,

if the conservator was appointed based on representations of special skill s, the conservator has a duty

to use those skills. lei.

IV. BURDEN OF PROOF

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October 16. 2006

Under Alabama law, the petitioner bears the burden of proving incapacity. Nigg v. Smith,

415 So. 2d 1082, 1084-85 (Ala. 1982). Testimony concerning a person's conduct in particular

business situations is particularly persuasive on the issue of capacity. See Hornaday v. Hornaday,

48 So. 2d 207, 209 (Ala. 1950). Lay opinion testimony is generally admissible. See Smith v. Smith,

48 So. 2d 546, 551 (Ala. 1950). However, the following foundat ion must be laid to qualify the lay

witness to testify:

[Tlhe witness, must have had, not only sufficient opportunity through acquaintance with and observation of the [person] to enable him to form a judgment with particular reference to the [person]'s capacity to transact ordinary business, at or about the time under inquiry, but also he must, ifhis opinion is unfavorable thereto, state the facts upon which he bases his opinion that the [person] was mentally incompetent to transact ordinary business.

Hornaday, 48 So. 2d at 209. Expert testimony is also admissible and is given morc weight than lay

witness testimony. Smilh, 48 So. 2d at 551 . However, expert testimony is not conclusive and does

not bind the trier of fact. fd.

VI. RIGHT TO TRIAL BY JURY

The right to a jury trial in guardianship and conservatorship proceedings is expressly

provided for in section 26-2A-35 ofthe Alabama Code. This statute distinguishes between the right

to trial by jury in courts with and without general equity jurisdiction. In probate courts without

general equity jurisdiction, parties have a right to trial by jury "in any proceeding to determine the

incapacity of the individual and in other proceedings as to which a party has a constitutional right

or a right under this chapter to a trial by jury." ALA. CODE § 26-2A-35(a). In probate courts with

general equity jurisdiction (such as the probate courts of Jefferson, Mobi le and Shelby counties), the

18

October 16, 2006

right to trial by jury is governed by Ru le 38 of the Alabama Rules of Civil Procedure. Id. Rule 38

provides as follows:

Any party may demand a trial by jury of any issue triable of right by ajury by serving upon the other party a demand therefore in writing at any time after the commencement of the action and not later than thirty (30) days after the service of the last pleading directed to such issue.

ALA. R. Clv. P. 38(b). "If there is no right to trial by jury under [Ala. Code § 26-2A-35(a)] or the

right is waived, the court in its discretion may call ajury to decide any issue of fact, in which case

the verdict is advisory only." ALA. CODE § 26-2A-35(b).

VII. MISCELLANEOUS CONSIDERATIONS

A. Appointment of Guardian Ad Litem

The probate court has broad discretion to appoint a guardian ad litem at any point in a

proceeding under the Act upon detennining that a person ' s interest would not otherwise be

adequately represented. ALA. CODE § 26-2A-52. For many years, courts appointed the same

individual (an attorney) to serve as both guardian ad litem and court representative. However, in in

re Conservatorship o/VA.H.. 802 So. 2d 1099, 11 00 (Ala. Civ. App. 2001), the Alabama Court of

Civil Appeals held that the same person cannot serve as both attorney for the person to be protected

and as court representat ive. Probate courts now typically appoint an attorney to serve as guardian

ad litem and a social worker to serve as court representative. This change has increased the cost of

guardianship and conservatorship proceedings.

B. Costs

The manner in which costs are assessed in guardianship and conservatorship proceedings

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October 16, 2006

generally depends upon the outcome of the proceeding and the size of the estate, If a guardianship

or conservatorship is established, costs are typically assessed to the estate of the protected person.

This assessment may include the attorneys' fees of the petitioner. See Penney v. Pritchard &

McCall, 49 So. 2d 782, 787 (Ala. 1950) (holding that petitioner's attorneys' fees were properly

charged to the estate of the person adjudged non compos mentis when the petition was in the interest

of the ward and resulted in the creation of a trust for the ward 's benefit), However, the petitioner

will likely have to bear the bulk of the costs associated with a proceeding if it does not result in a

guardianship or conservatorship, or if the estate ofthc protected person is not adequate to cover the

costs,

C. Testamentary Capacity

The Act expressly excludes the power to make a will from those powers that may be

exercised over the estate and business affairs of a protected person. ALA. CODE § 26-2A-136(b)(3).

'''Except for the disability necessitating the appointment, adetennination thata basis for appointment

of a conservator or other protective order exists has no effect otherwise on the capacity of the

protected person," fd. § 26-2A-136(d). A finding of incapacity in a conservatorship proceeding docs

not equate to a finding of testamentary incapacity. Toler v. Murray, 886 So. 2d 76, 78-79 (Ala,

2004).

In Toler, a probate judge refused to admit a will to probate when the will was executed while

the testator was the subject of a conservatorship. Thc testator 's daughter petitioned the Alabama

Supreme Court for a writ of mandamus directing the probate court to admit the will to probate , and

the Supreme Court granted the requested relief. The court noted that Alabama law recognizes two

20

Octobo::r 16, 2006

standards oflegal capacity: one standard applies to conducting general business affairs, and a second

standard applies to drafting a will. Id at 78, The first standard, which applies in conservatorship

proceedings, is higher, Relying upon section 26-2A-136(b)(3) of the Alabama Code, the court

reasoned that "[b Jecause a ward , . , retains testamentary authority, the conservatorship statutes

clearly indicate that the ward may also retain testamentary capacity." ld at 78-79 (emphasis in

original). An adjudication of incapacity in a conservatorship proceeding is not tantamount to an

adj udication of testamentary incapacity, ld at 79,

VIII. CONCLUSION

Guardianship and conservatorship proceedings are important mechanisms for providing care

and protection. However, when contemplating a guardianship or conservatorship action, recognize

that litigation may damage familial relations and impose a significant financial burden on all parties

involved,

21