Understanding Wisconsin Supreme Court Rule 20:1.14

SCR 20:1.14 Overview:  Hypothetical  Review the rule  What are some issues under the rule?  ABA Annotation  Hypothetical

SCR 20:1.14 HYPOTHETICAL: You represent an elderly client, Elbridge, who is the subject of a guardianship proceeding. He was walking outside for several hours in the middle of February with only a light coat on. The temperature was 5 o F.

SCR 20:1.14 The client tells you he is fine. He states he had long underwear on and several layers of clothing on underneath and wasn’t cold. The tips of his fingers look bluish/black even though the incident was about three days ago. He claims his family is seeking a guardianship to get control of and steal his money. You are uncertain of what assets he has.

SCR 20:1.14 He tells you he doesn’t want a guardianship and that someone on the radio told him he should stick up for himself. He says he wants to continue living alone so he can drink, smoke and eat as much sugar as he wants; he doesn’t like his medicine because of its side effects.

SCR 20:1.14 Elbridge’s brother tells you Elbridge said he was fine with the guardianship right after the incident outside. If you were representing Elbridge, what are some concerns? Issues?

SCR 20:1.14 THEMES:  Importance of lawyer’s judgment  Client autonomy v. best interest  Common sense v. requirements of being a lawyer  Moral vs. legal  Advocate v. “adverse” to client

SCR 20:1.14 (a) When a client's capacity to make adequately considered decisions in connection with a representation is diminished, whether because of minority, mental impairment or for some other reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client.

SCR 20:1.14 (a) When a client's capacity to make adequately considered decisions in connection with a representation is diminished, whether because of minority, mental impairment or for some other reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client.

SCR 20:1.14 (a) When a client's capacity to make adequately considered decisions in connection with a representation is diminished, whether because of minority, mental impairment or for some other reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client.

SCR 20:1.14 b) When the lawyer reasonably believes that the client has diminished capacity, is at risk of substantial physical, financial or other harm unless action is taken and cannot adequately act in the client's own interest, 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.

SCR 20:1.14 b) When the lawyer reasonably believes that the client has diminished capacity, is at risk of substantial physical, financial or other harm unless action is taken and cannot adequately act in the client's own interest, 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.

SCR 20:1.14 (c) Information relating to the representation of a client with diminished capacity is protected by SCR 20:1.6. When taking protective action pursuant to par. (b), the lawyer is impliedly authorized under SCR 20:1.6(a) to reveal information about the client, but only to the extent reasonably necessary to protect the client's interests.

SCR 20:1.14 (c) Information relating to the representation of a client with diminished capacity is protected by SCR 20:1.6. When taking protective action pursuant to par. (b), the lawyer is impliedly authorized under SCR 20:1.6(a) to reveal information about the client, but only to the extent reasonably necessary to protect the client's interests.

SCR 20:1.14 Summary of the rule: (a) Maintain normal attorney-client relationship as much as possible. (b) What to do if lawyer believes there is diminished capacity. (c) Exception to Rule 1.6

SCR 20:1.14 What does it mean to maintain a normal client- lawyer relationship?

SCR 20:1.14  Client determines goals of representation  Attorney determines means  Communication  Confidentiality  Diligence  Avoid conflicts of interest

SCR 20:1.14 Lawyer should:  Treat client with attention and respect  Continue to attempt to communicate and discuss relevant matters  Take action consistent with the client’s directions and decisions.

SCR 20:1.14 Without Rule 1.14, if client is incompetent, lawyer’s authority to act would disappear. Lawyer can initiate protective action, including seeking appointment of a legal representative.

SCR 20:1.14 What should the attorney do if uncertain whether client has diminished capacity? ASSESS the client.

SCR 20:1.14  How assess whether client diminished?  Client’s ability to articulate reasoning for a decision.  Variability of state of mind and ability to appreciate consequences.  Substantive fairness of a decision.  Consistency of the decision with the known long- term commitments and values of the client. ABA Comment to Model Rule 1.14

SCR 20:1.14 If the attorney cannot assess on his or her own, permissible to consult with others. ABA Formal Ethics Opinion (1996) How should the attorney go about consulting with others?

SCR 20:1.14 Attorney may seek to talk with a diagnostician. Limit disclosure to what is necessary to carry out the representation. Also permissible to consult with family or other interested person who can assist with lawyer’s assessment. ABA Formal Ethics Opinion (1996)

SCR 20:1.14 At the heart of capacity is decision-making. Three elements required: 1. Possession of a set of values and goals; 2. Ability to communicate and to understand information 3. Ability to reason and to deliberate about one’s own choices. Charles P. Sabatino, Representing a Client with Diminished Capacity: How Do You Know It and What Do You Do About It?, 16 J. Am. Acad. Matrim. Law. 481, 485 (2000)

SCR 20:1.14  1.14(b) permits a lawyer to take reasonably necessary protective action in certain circumstances, including:  Consulting with individuals or entities that have the ability to take action to protect the client  Seeking the appointment of a GAL, conservator or guardian.

SCR 20:1.14  Comment to 1.14(b) lists possible protective actions:  Consulting with family members  Using a reconsideration period to permit clarification or improvement of circumstances  Using voluntary surrogate decision-making tools such as durable powers of attorney  Consulting with support groups, professional services, adult-protective agencies  Others with ability to protect the client

SCR 20:1.14 Protective action (cont’d):  Seek appointment of a guardian, guardian ad litem or conservator.

SCR 20:1.14 A safe rule of thumb is to take the least restrictive / intrusive action. Appointment of GAL may be appropriate where only issue is the interests of the client in litigation. Broader representation may require appointment of a general guardian.

SCR 20:1.14 If less drastic means are not available and the lawyer thinks a guardian is needed, lawyer may file a petition seeking a guardian for the client. ABA Formal Opinion (1996) However, if a third party is seeking guardianship, lawyer may not represent the third party.

SCR 20:1.14 Seeking the appointment of a guardian is distinguished from seeking to be the guardian. Lawyer should not act as or seek to be appointed as guardian except in the most urgent circumstances. Example: client is being evicted and in order to delay eviction, lawyer files as answer to the eviction complaint to avoid default.

SCR 20:1.14 Withdrawal from representation Rule 1.14 permits but does not require a lawyer to take protective action. If a client’s diminished capacity prevents the lawyer- client relationship from existing, the lawyer may withdraw subject to Rule 1.16.

SCR 20:1.14  Termination of representation must be done “without material adverse effect on the interests of the client.” SCR 20:1.16(b).

SCR 20:1.14 ABA Annotation of Rule 1.14

SCR 20:1.14 What are some steps you would take under Rule 1.14 with respect to Elbridge?