Model Rule 1.14: Client with Diminished Capacity

When it applies

This comes up with elderly clients, clients with intellectual or psychiatric disabilities, minors, and clients suffering temporary impairment (e.g., from medication or injury). On the MPRE, it tests whether students know the lawyer's default duty is to preserve the normal relationship and only escalate to protective measures when harm is likely and the client cannot self-protect.

What the rule requires

• Maintain, as far as reasonably possible, a normal client-lawyer relationship with the client despite the diminished capacity.
• When the lawyer reasonably believes the client has diminished capacity, is at risk of substantial physical, financial, or other harm, and cannot adequately act in their own interest, the lawyer may take reasonably necessary protective action.
• Protective action may include consulting family members, using or seeking the appointment of a guardian ad litem, conservator, or guardian, or taking other reasonably necessary steps.
• The lawyer is impliedly authorized under Rule 1.6 to reveal information about the client to the extent necessary to take protective action, even without the client's informed consent.
• Disclosure of confidential information for protective purposes should be no greater than reasonably necessary to protect the client's interests.
• The lawyer must continue to treat the client with attention and respect, recognizing that diminished capacity does not eliminate the client's right to be consulted and informed.

Exceptions

• If a legal representative such as a guardian already exists, the lawyer generally should look to that representative for decisions, though the lawyer must still, as far as possible, treat the client with attention and respect.
• In an emergency where the health, safety, or financial interest of a person with seriously diminished capacity faces imminent and irreparable harm, the commentary to Rule 1.14 allows a lawyer to take legal action on that person's behalf even if the person cannot establish a client-lawyer relationship or make considered judgments, limited to what is reasonably necessary to maintain the status quo or avoid the harm.

How the MPRE tests Model Rule 1.14

• Students often think diminished capacity automatically permits disclosure of confidential information; disclosure under 1.14 is limited to what is reasonably necessary for protective action, not a blanket exception.
• Exam questions test whether students wrongly assume the lawyer must immediately seek a guardian rather than first trying to maintain normal representation.
• Students confuse 'reasonably believes' the client has diminished capacity with requiring a medical diagnosis; the standard is the lawyer's reasonable belief based on observed behavior.
• MPRE questions may present a client with unusual decisions (e.g., a disfavored settlement) and test whether students incorrectly treat this alone as diminished capacity requiring intervention.