Informal Opinion Number: 2020-27

Adoption Date: 2020

Rules: 4-1.4; 4-1.6; 4-1.14; 4-1.16
Client-Lawyer Relationship
Communication
Confidentiality of Information
Client with Diminished Capacity
Declining or Terminating Representation
Subject: Diminished Capacity of Client; Estates, Wills, and Trusts; Withdrawal from Representation
Summary: termination of representation by client with diminshed capacity

QUESTION: Three years ago, Attorney drafted a will for an elderly client. Last month Client met with Attorney to discuss executing a durable power of attorney appointing Client’s adult daughter as attorney-in-fact. Client exhibited signs of mental decline, but after a lengthy discussion, Attorney believed Client was capable of making informed decisions about the representation if matters were explained clearly. Before Client returned to execute the document, Attorney received a letter signed by Client discharging Attorney and requesting Client’s file be mailed to an adult son. What are Attorney’s ethics obligations?

ANSWER: A lawyer is required to withdraw from a representation if discharged by the client. Rule 4-1.16(a). Upon termination of the representation, a lawyer is to surrender the file to the client and take other reasonably practicable steps to protect the client’s interests. Rule 4-1.16(d); Formal Opinion 115. However, if a client has severely diminished capacity, the client may lack the legal capacity to discharge the lawyer, and the lawyer should consider whether reasonably necessary protective action is warranted by Rule 4-1.14, Client With Diminished Capacity. Rule 4-1.16, Comment [6]; see Informal Opinion 960169. If Attorney believes Client’s capacity to make adequately considered decisions in connection with the representation is diminished, Rule 4-1.14 requires Attorney to maintain as normal a client-lawyer relationship as is reasonably possible. Rule 4-1.14(a) and Comments [1] and [2]. Attorney should attempt to communicate directly with Client about the discharge letter and explain to client how the discharge may affect Client’s interests. See Rule 4-1.4. In determining the extent of Client’s diminished capacity, Attorney should consider and balance the factors listed in Comment [6] to Rule 4-1.14, including Client’s ability to articulate reasoning and appreciate consequences, the variability of Client’s state of mind, and the consistency of Client’s decisions with the long-term commitments and values of Client. Rule 4-1.14, Comment [6]. If appropriate, Attorney may seek guidance from an appropriate diagnostician. Comment [6]. Rule 4-1.14(b) authorizes, but does not require, Attorney to take “reasonably necessary protective action” if Attorney reasonably believes 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.” If taking protective action authorized by the rule, Attorney is impliedly authorized under Rule 4-1.6(a) to make necessary disclosures of confidential information, even if Client directs Attorney to the contrary, but only to the extent reasonably necessary to protect Client’s interests. Rule 4-1.14(c) and Comment [8]. What constitutes reasonably necessary protective action depends on the circumstances. Attorney should be guided by factors including what Attorney knows of Client’s wishes and values, Client’s best interests, minimal intrusion into Client’s decision-making autonomy and capacities, and respect for Client’s family and social connections. Rule 4-1.4, Comment [6]. Reasonably necessary protective action may include consulting with family members, consulting with adult-protection agencies or other entities that have the ability to take action to protect Client, or using a reconsideration period. Rule 4-1.14(b) and Comments [5] and [7]. If protective action is necessary and less drastic measures are inadequate, Attorney may request the appointment of a legal representative for Client, such as a next friend, guardian ad litem, limited guardian, guardian, or conservator, but only as a last resort. Rule 4-1.14(b) and Comment [7]; Informal Opinion 990095. Normally, Attorney should not seek to be appointed Client’s legal representative, nor should Attorney represent a third person in the action. See Rule 4-1.7.

Informal Opinions are ethics advisory opinions issued by the Office of Legal Ethics Counsel to members of the Bar about Rule 4 (Rules of Professional Conduct), Rule 5 (Complaints and Proceedings Thereon), and Rule 6 (Fees to Practice Law) pursuant to Missouri Supreme Court Rule 5.30(c). Written summaries of select Informal Opinions are published for informational purposes as determined by the Advisory Committee of the Supreme Court of Missouri pursuant to Rule 5.30(c). Informal opinion summaries are advisory in nature and are not binding. These opinions are published as an educational service and do not constitute legal advice.

To request an Informal Opinion, please visit: https://mo-legal-ethics.org/for lawyers/requesting-an-informal-advisory-opinion/.

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