As attorneys, we should be familiar with our ethical duties to communicate with clients under SCR 20:1.4. However, how are those duties impacted when the client has diminished capacity?

When an impaired client has bona fide civil claims, what steps must an attorney take to ensure the client’s best interests are considered? What rules exist in the Wisconsin statutes that offer protection for such clients?

Imagine that someone contacts your office and explains a factual scenario that seems likely to involve a valid legal claim. However, the person that contacts your office is a daughter calling on behalf of her father and the claim belongs to him. The daughter explains that her dad has been diagnosed with Alzheimer’s disease.

How should an attorney approach this scenario?

SCR 20:1.14 and Comments

The first place to look is SCR 20:1.14. Unfortunately, there are no Wisconsin Ethics Opinions related to Rule 1.14, so the only guidance is the language the rule and its comments – although there are ABA Opinions on identical Model Rule 1.14.

Ethical duties require that when an attorney represents a client with diminished capacity, the attorney “shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client.”¹

Diminished capacity covers a wide range of capacities and abilities. For instance, the individual could be so severely diminished that they lack any capacity to make binding legal decisions. However, a client may have the ability to listen, understand, reflect, and make decisions affecting their own well-being – even if they may forget that decision within the next day.²

Regardless, the fact that a client has diminished capacity does not affect the attorney’s ethical obligation to treat the client with respect and attention a client deserves, particularly in maintaining communication with the client.³

The Initial Meeting

Going back to the hypothetical daughter and her father with dementia, it is imperative that the initial meeting to determine the facts of potential claims and that the decisions to be made on advancing those claims involve the client. It is likely that the daughter would be able to participate in discussions with the attorney, if requested by the client.

If such communications are deemed necessary for the representation, the presence of the daughter would not likely affect the applicability of the attorney-client evidentiary privilege. However, decisions regarding representation and potential claims are left to the client, not the family member, unless action to protect the client’s interest is believed to be necessary.⁴

At this initial meeting, it is important to observe the interaction between the client and the family member who contacted the office and determine the extent of the client’s diminished capacity. Given most attorneys are not medical doctors or brain experts, if the attorney is uncertain of the client’s capacity, it may make sense to request a medical release to review the client’s records and speak with the client’s medical team or care providers.

If the attorney is convinced that the family members are acting in the client’s best interest, a Durable Power of Attorney (POA) limited to claims and litigation may be appropriate as well.⁵

Yet, if at any time the attorney senses the agent under a POA is acting in their own interest, as opposed to the principal/client, the attorney still represents the client – not the agent – and may need to take protective action.⁶

Additionally, the attorney must be convinced that the client has the requisite capacity to understand and properly consider the ramifications of the POA before signing it.

When a Guardian ad Litem Is Needed

After this initial meeting and investigation of the claims, if the attorney accepts the client’s claims and the daughter has a valid POA to manage the client’s claims in litigation, how should litigation proceed?

Well, as an attorney filing the case on behalf of an alleged incompetent client, that attorney should be aware that they may become the guardian ad litem for the client. Per Wis. Stat. section 803.01(3)(a), any time a party to an action is adjudicated or alleged incompetent, they must appear by an attorney, the guardian of the estate, or by a guardian ad litem. Further, an individual adjudicated or alleged incompetent must appear by a GAL if there is no guardian of the estate. However, if the interests of the individual are represented by an attorney, that attorney shall be appointed the GAL, except upon good cause.

Unlike a GAL appointed in guardianship or child custody and placement matters, a GAL appointed under section 803.01(3)(a) does not have to complete continuing education courses for GAL accreditation.⁷

As a GAL, an attorney is tasked with looking out for the best interests of the client. There are times when the client may not be making decisions in their own best interest. If an attorney believes this to be the case and that the client is cannot adequately act in their own interest, then the attorney may take reasonable protective action. This could include seeking the appointment of a separate GAL in an action.⁸

That said, under this scenario, an attorney is still bound to their ethical obligations of confidentiality under SCR 20:1.6. As such, an attorney seeking protective action on behalf of a client with diminished capacity is impliedly authorized to reveal information about the client, but only to the extent reasonably necessary to protect their interests.⁹

The ABA and other jurisdictions have interpreted this to mean an attorney must take the least restrictive means under the circumstances to protect a client’s interests.¹⁰

If an attorney believes a client’s capacity has deteriorated over the course of litigation – or determines that they have misjudged the client’s actual capacity – then it possible to seek the appointment of a separate and independent GAL by filing a motion in the court.¹¹

Similarly, if representation of the client with diminished capacity involves an agent under a POA, the appointment of a GAL may be necessary if the attorney feels the agent is starting to serve their own interests. An agent under a POA is accountable to a court-appointed fiduciary and the principal but their authority is not automatically terminated.¹²

Withdrawing from Representation

Finally, if for any reason an attorney feels it necessary to withdraw from representing a client with diminished capacity, it is almost certainly required to move for the appointment of a GAL upon filing their withdrawal. If an individual adjudicated of alleged incompetent is not represented in an action, then any judgment or order entered while that individual is not represented may be vacated as a matter of right.¹³

Conclusion

Representing clients with diminished capacity certainly requires special consideration. However, there is no shortage of people in the world looking to take advantage of this vulnerable population and they deserve representation to protect their interests as much as anyone else.

This article was originally published on the State Bar of Wisconsin’s Solo/Small Firm & General Practice Blog of the Solo/Small Firm & General Practice Section. Visit the State Bar sections or the Solo/Small Firm & General Practice Section web pages to learn more about the benefits of section membership.

Endnotes

¹ SCR 20:1.14(a).

² Comment 1 to SCR 20:1.14.

³ Comment 2 to SCR 20:1.14.

⁴ Comment 3 to SCR 20:1.14.

⁵ Wis. Stat. § 244.52.

⁶ SCR 20:1.14(b).

⁷See SCR 35, 36; Wis. Stat. § 803.01(3).

⁸ SCR 20:1.14(b).

⁹ SCR 20:1.14(c).

¹⁰ ABA Formal Op. 96-404.

¹¹ Wis. Stat. § 803.01(3)(b)4.-5.

¹² Wis. Stat. § 244.08(2).

¹³ Wis. Stat. § 803.01(3)(c).