A lawyer is representing a client in a complex commercial litigation. The client, a successful entrepreneur, is highly intelligent but has recently been diagnosed with early-stage Alzheimer's disease. The client's memory and decision-making abilities are sometimes impaired, particularly under stress. The client insists on making all strategic decisions, even those the lawyer believes are detrimental. What is the lawyer's most appropriate course of action?
- AWithdraw from the representation, as the client's diminished capacity makes effective representation impossible.
- BSeek to have a guardian appointed for the client through a court petition.
- CConsult with family members or other trusted advisors to assist the client in making decisions, while still respecting the client's autonomy.
- DFollow the client's instructions, as the client retains the ultimate authority over the objectives of the representation.
Show answer & explanationAnswer & explanation
Correct answer: C. Consult with family members or other trusted advisors to assist the client in making decisions, while still respecting the client's autonomy.
When a client's capacity is diminished, the lawyer's primary duty is to maintain a normal client-lawyer relationship as much as possible. Consulting with family or other trusted advisors, with the client's implicit or explicit authorization, can help the client make sound decisions while preserving their autonomy, which is a permissible protective action under Model Rule 1.14(b).
Why the other options are wrong
- A. Withdrawal is generally not appropriate unless the lawyer cannot effectively communicate with the client or if the client insists on actions that would violate ethical rules or law. Taking protective actions is usually preferred.
- B. Seeking a guardian is an extreme measure and should only be pursued if other less intrusive protective actions are insufficient to protect the client from substantial harm.
- D. While client autonomy is critical, when capacity is diminished, the lawyer has a duty to take reasonable protective action, which may include not blindly following detrimental instructions.
Client with Diminished Capacity (Protective Action)
When a lawyer reasonably believes a client has diminished capacity and is at risk of substantial physical, financial, or other harm, the lawyer may take reasonably necessary protective action, while maintaining a normal client-lawyer relationship as far as possible.
- Maintain normal client-lawyer relationship as much as possible.
- Protective action is only for substantial harm risk.
- Consulting family/advisors is a less restrictive protective action.
Memory trick: Protect, Preserve, Consult – Don't Just Quit or Control.