Clients with diminished Capacity - Proposed formal opinion - California State Bar invites comments

The California State Bar, in response to previous public comments, has announced a revision to  its proposed Opinion 13-0002 regarding representation of clients with diminished capacity.  The new comment period ends August 24. 

Professional Responsibility and Conduct Formal Opinion Interim No. 13-0002

THE STATE BAR OF CALIFORNIA STANDING COMMITTEE ON PROFESSIONAL RESPONSIBILITY AND CONDUCT FORMAL OPINION INTERIM NO. 13-0002

 ISSUES: What are the ethical obligations of a lawyer for a client with diminished capacity? 

DIGEST: A lawyer for a client with diminished capacity should attempt, insofar as reasonably possible, to preserve a normal attorney-client relationship with the client, that is, a relationship in which the client makes those decisions normally reserved to the client. The lawyer’s ethical obligations to such a client do not change, but the client’s diminished capacity may require the lawyer to change how the lawyer goes about fulfilling them. In particular, the duties of competence, communication, loyalty, and nondiscrimination may require additional measures to ensure that the client’s decision-making authority is preserved and respected. In representing such a client, a lawyer must sometimes make difficult judgments relating to the client’s capacity. Provided that such judgments are informed and disinterested, they should not lead to professional discipline. 

In some situations, the client’s lack of capacity may require that the lawyer decline to effectuate the client’s expressed wishes. When the lawyer reasonably believes that the client’s diminished capacity exposes the client to harm, the lawyer may seek the client’s informed consent to take protective measures. If the client cannot or does not give informed consent, the lawyer may be unable to protect the client against harm. A lawyer representing a competent client who may later become incapacitated may propose to the client that the client give advanced consent to protective disclosure in the event that such incapacity occurs. If appropriately limited and informed, such a consent is ethically proper. 

AUTHORITIES INTERPRETED: Rules of Professional Conduct 1.0.1(e), 1.1, 1.2, 1.4, 1.6, 1.7, and 8.4.1 of the Rules of Professional Conduct of the State Bar of California.1 Business and Professions Code section 6068(e)