The Client with Diminished Capacity in California

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Promulgating the rules of professional conduct for attorneys is the responsibility of the bar of each individual state. Most follow the Model Rules of the American Bar Association.

In regards to duties owed to clients with diminished capacity, California has not adopted the ABA Model Rules. Traditionally, California has prioritized the protection of attorney-client confidentiality. Contrast this with the option of “protective action” allowed by the ABA Model Rules.

In brief, consider a client with diminished capacity who is acting against her own interest by risking substantial financial or other harm. Under the ABA Model Rules, “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.” Doing so would, viewed narrowly, violate the client’s expectation of confidentiality.

Since there is no equivalent California rule, and because of the primacy of preserving client confidentiality, California estate lawyers felt that they only had two options a) going along with the clients wishes and risking litigation by other interested third parties or b) withdrawing from representation and leaving a vulnerable client in a lurch, also exposing them to litigation. The dilemma and other issues arising in the representation of clients with diminished capacity is discussed in much detail here.

To fill the void in the Rules of Conduct, the State Bar’s Standing Committee on Professional Responsibility and Conduct (COPRAC) has issued Formal Opinion Interim No. 13-0002, open for public comment until August 24, 2021.

The Formal Opinion addresses the question “What are the ethical obligations of a lawyer for a client with diminished capacity?” To do this in a practical way, fours scenarios are discussed:
Scenario 1: Client with diminished capacity wants to oppose conservatorship but shouldn’t
Scenario 2: Impaired client wants to update estate plan to disinherit children
Scenario 3: Client with brain injury deteriorates and wishes to make loan to nephew on unfavorable terms
Scenario 4: Client who is unimpaired wants to proactively authorize lawyer to take protective action in the event of future incapacity

For a quick digest of the scenarios see here, or go to the proposed Formal Opinion.

Related: What is the difference between the duty of confidentiality and the attorney-client (client-lawyer) privilege?

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