A lawyer represents a client in a complex business negotiation. The client has a history of mental health issues, which occasionally manifest as periods of severe paranoia and delusional thinking. Currently, the client is experiencing a paranoid episode and insists on rejecting a highly favorable settlement offer, believing it to be a trap orchestrated by a conspiracy. The lawyer reasonably believes the client is suffering from diminished capacity and cannot make a rational decision regarding the settlement. What is the lawyer's primary ethical obligation in this situation?
- AThe lawyer should seek to establish a guardianship for the client to override the client's decision.
- BThe lawyer may take reasonably necessary protective action, including consulting with individuals or entities that can help the client.
- CThe lawyer must follow the client's instruction to reject the offer, as the client has ultimate authority over settlement decisions.
- DThe lawyer must withdraw from representation due to the client's inability to make rational decisions.
Show answer & explanationAnswer & explanation
Correct answer: B. The lawyer may take reasonably necessary protective action, including consulting with individuals or entities that can help the client.
Model Rule 1.14(b) permits a lawyer to take reasonably necessary protective action, including consulting with family members, using a durable power of attorney, or, in severe cases, seeking a guardian, when a client has diminished capacity and is at risk of substantial physical, financial, or other harm. The lawyer should not automatically follow irrational instructions or immediately seek guardianship without exploring less restrictive alternatives.
Why the other options are wrong
- A. Seeking guardianship is a drastic measure and often a last resort; lawyers should first explore less restrictive protective actions.
- C. While clients generally control settlement, Rule 1.14 allows for protective action when diminished capacity impairs decision-making and puts the client at risk.
- D. Withdrawal may not be in the client's best interest, especially if the client is vulnerable; the lawyer's duty is to protect the client under Rule 1.14.
Diminished Capacity Protective Action
When a lawyer reasonably believes a client with diminished capacity is at risk of substantial physical, financial, or other harm, the lawyer may take reasonably necessary protective action, such as consulting with family or seeking appointment of a guardian.
- The lawyer's role is to maintain a normal client-lawyer relationship as much as possible.
- Protective action should be the least restrictive necessary.
- Confidentiality still applies, but disclosure may be permissible to the extent necessary for protective action.
Memory trick: When the client's mind wavers, the lawyer's duty is a protective embrace.