Informal Opinion Number: 2023-01

Adoption Date: April 26, 2023

Rules: 4-1.14, 4-1.2, 4-3.4, 4-1.4
Client-Lawyer Relationship; Advocate
Client with Diminished Capacity; Scope of Representation; Duties to Opposing Parties and Counsel and Ethical Obligation to Follow Court Orders and Rules; Communication
Subject: Diminished Capacity of Client
Summary: lawyer appointed to represent client in guardianship proceedings and diminished capacity

Question: Lawyer is appointed by the court as counsel for Client who is the respondent in a guardianship proceeding. Lawyer believes that the statute, RSMo 475.075.4, requires the court appointed counsel to represent the respondent’s desires regarding the guardianship, but that the statute requires Lawyer to obtain all possible aid from the respondent if Lawyer believes that respondent is capable of understanding the proceedings and can help advance the respondent’s interests. Lawyer seeks clarification as to the application of Rule 4-1.14 – Client with Diminished Capacity in this representation given the statutory requirements.

Answer: This office cannot interpret statutes or other sources of law, and can only provide guidance regarding Rules 4, 5, and 6. It is important to remember that “[t]he Rules of Professional Conduct are rules of reason. They should be interpreted with reference to the purposes of legal representation and of the law itself.” Rule 4, Scope [14]. As explained in Rule 4, Scope [15], a larger legal context outside of the Rules of Professional Conduct shapes the lawyer’s role, including court rules, laws defining specific obligations of lawyers, and substantive and procedural law in general. Additionally, “for purposes of determining the lawyer’s authority and responsibility, principles of substantive law external to these Rules determine whether a client-lawyer relationship exists.” Rule 4, Scope [17].
It should be noted that a lawyer has an ethical duty to comply with court orders, and a lawyer is prohibited from knowingly disobeying an obligation under the rules of a tribunal. Accordingly, Lawyer should seek to follow any obligations imposed by a court order appointing the lawyer, statute or other law with respect to the representation. See, Rule 4-3.4(c) and Comment [4]. The interpretation of statutes or other law governing Lawyer’s obligations when appointed to represent a client in a matter governed by that statute is a matter of law for a court to decide and beyond the scope of an informal ethics opinion. Lawyer must use independent professional judgment, based on the facts and substantive law, to make a determination on a case-by-case basis as to when Lawyer may act pursuant to Rule 4-1.14 when representing a respondent in a guardianship proceeding.
As to the application of Rule 4-1.14 to this Question, Lawyer should consider that Client has presumably been alleged to have some degree of diminished capacity, which may or may not be true. Pursuant to Rule 4-1.14(a) if Lawyer believes that a client’s capacity to make adequately informed decisions in connection with the representation is diminished, Lawyer is required, as far as reasonably possible, to maintain a normal client-lawyer relationship. See also Informal Opinion 2020-27.
Rule 4-1.2(a) requires Lawyer to abide by a client’s decisions concerning the objectives of the representation and to consult with the client as to the means by which the client’s objectives are to be pursued. However, Comment [6] to Rule 4-1.2 provides guidance that “[a]n agreement concerning the scope of representation must accord with the Rules of Professional Conduct and other law.” It is the informal advisory opinion of this office that “other law” in the scope of representation context could include an order appointing an attorney to represent a client, specific statutory authority, or case law. Rule 4-1.4(b) requires Lawyer to explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation. Comment [2] to Rule 4-1.4 states that the client “should have sufficient information to participate intelligently in the decisions concerning the representation and the means by which they are to be pursued, to the extent the client is willing and able to do so.” Therefore, a client who may have diminished capacity retains the right, to the extent that the client is able to do so, to determine the goals and objectives of the representation and to consult with Lawyer regarding the means by which those goals and objectives are pursued. However, as noted in the guidance provided in Comment [1] to Rule 4-1.14, “[w]hen the client …suffers from a diminished mental capacity, … maintaining the ordinary client-lawyer relationship may not be possible in all respects. In particular, a severely incapacitated person may have no power to make legally binding decisions.”
As explained in Informal Opinion 2020-27, Rule 4-1.14(b) sets forth a continuum of potential protective actions which a lawyer may take in regard to a client with diminished capacity, beginning with those that involve minimal intrusion into the client’s decision-making autonomy and ending with the most intrusive. In considering the application of Rule 4-1.14(b), Lawyer appointed to represent a respondent in a guardianship proceeding must consider that requesting the appointment of a guardian is the most drastic action on the end of the continuum of possible protective actions involving the greatest intrusion into the client’s decision-making autonomy. When the appointment of a guardian for a client has been sought by a third party, the most drastic protective action on behalf of the client with diminished capacity has already been taken by a party other than Lawyer. Therefore, it may not make sense for Lawyer to take protective action authorized by Rule 4-1.14(b) when the client’s capacity is the subject of the proceeding and should only be considered by Lawyer for use when the high criteria of that Rule are met.

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.

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