Colorado Supreme Court
Office of Attorney Regulation Counsel
Promoting Professionalism. Protecting the Public.
How to Handle Clients with
Diminished Capacity
With a
growing elderly population, it’s not just estate planning attorneys that need
to understand the ethical considerations in representing such clients.
By KATRIN
MILLER ROTHGERY
Spring 2014
For estate planners and elder law practitioners, representing
clients with diminished capacity is a regular part of the job. But as our
population continues to grow older, lawyers practicing in all areas will
increasingly see such clients. With those clients may come new ethical considerations.
In general, Colorado Rule of Professional Conduct 1.14 says a
lawyer representing a client with diminished capacity should maintain a normal
lawyer-client relationship as far as reasonably possible. Depending on the
factual circumstances, the lawyer might also be obligated under the Rule to
take protective action on the client’s behalf, including consulting with other
professionals and/or seeking the appointment of a guardian or conservator.
Because of this additional duty to take steps to protect a client
with diminished capacity, Rule 1.14 contains an exception to the normal
confidentiality requirements of Rule 1.6.
A lawyer in such circumstances is impliedly authorized to reveal
information about the client to the extent reasonably necessary to protect the
client’s interests.
The comments to Rule 1.14 acknowledge the extremely difficult
situations that a lawyer might face in representing a client with diminished
capacity. For example, comment [8]
reminds lawyers that even with the exception to Rule 1.6, a lawyer can only
reveal information “reasonably necessary” to protect the client’s
interests. The comment also highlights
the factual circumstance in which disclosure of the client’s condition could
adversely impact the client’s interests, in that, for example, disclosure of
such information might lead to involuntary commitment.
For a more in-depth discussion of these issues, sign up for the
June 26 CLE program featuring medical professionals, elder law practitioners,
and the Office of Attorney Regulation Counsel.
Kati Rothgery
is Assistant Attorney Regulation Counsel with the Office of Attorney Regulation
Counsel.