My client, who is under treatment for a mental disorder, may not be able to manage the insurance proceeds I recovered for her, and she has withdrawn her consent to a limited guardianship. What are my obligations under Rule 1.14?

Plain-English summary

The inquiring attorney had successfully collected the proceeds of a life insurance policy for a client who was the beneficiary. The attorney became concerned about the client's ability to handle the money because she was under treatment for a mental disorder, and the client's doctor and social worker both believed she was vulnerable to those who might try to acquire her money. The attorney suggested a guardian be appointed, and a friend of the client agreed to hold her bank book temporarily and, with the attorney's permission, disbursed $30,000 to the client for various bills. The client at first consented to a limited guardianship but then changed her mind. The attorney asked what obligations were owed regarding the client's inability to handle her financial affairs.

The Panel set out Rule 1.14 ("Client Under a Disability"). Under Rule 1.14(a), when a client's ability to make adequately considered decisions is impaired, the lawyer must, so far as reasonably possible, maintain a normal client-lawyer relationship. Under Rule 1.14(b), a lawyer may seek appointment of a guardian or take other protective action only when the lawyer reasonably believes the client cannot adequately act in the client's own interest. The Panel quoted the Rule's comments, which note that a lawyer may have to act as a de facto guardian, should accord an impaired client the status of client, and should see to a guardian's appointment where it would serve the client's best interests.

The Panel described the choices available when a client's competency is in serious doubt, including withdrawing, seeking a guardian, seeking unofficial consent from a family member or close friend, persuading the client to make a different choice, proceeding as de facto guardian, or continuing to presume competence. It concluded that if the attorney reasonably believed the client could not adequately act in her own interest, the attorney should seek appointment of a guardian.

Currency note

This opinion was issued in 1996 (Opinion 96-05, issued March 14, 1996), after the Rhode Island Supreme Court adopted the Model Rules of Professional Conduct effective November 15, 1988, and it applies Rule 1.14 as it stood at the time. The Rhode Island Supreme Court later revised the Rules of Professional Conduct in 2007 as part of the nationwide Ethics 2000 process, which retitled and amended Rule 1.14 (now "Client With Diminished Capacity"). Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule mentioned here.

Common questions

Q: Can a lawyer ask a court to appoint a guardian for a client without the client's consent?

A: Under Rule 1.14(b) the Panel said a lawyer may seek a guardian or other protective action only when the lawyer reasonably believes the client cannot adequately act in the client's own interest.

Q: The client withdrew her consent to guardianship. Does that end the lawyer's options?

A: No. The Panel treated the guardianship path as available on the lawyer's reasonable belief about the client's capacity, and listed it among the choices when competency is in serious doubt, notwithstanding the client's change of mind.

Q: If the lawyer does not seek a guardian, what is owed to the client?

A: The Panel said the attorney owes the duty to maintain, so far as possible, a normal client-lawyer relationship and to assist the client with advice that will help her protect her interests.

Background and rules framework

The opinion interprets Rhode Island Rule of Professional Conduct 1.14 (client under a disability), the analog of Model Rule 1.14. The Rule balances two duties: maintaining a normal client-lawyer relationship so far as possible (1.14(a)), and the limited authority to seek protective action, including guardianship, only on a reasonable belief that the client cannot adequately act for herself (1.14(b)).

Citations and references

Rules of Professional Conduct:

• MR 1.14 / RI RPC 1.14 (client under a disability; protective action and guardianship)

See also

• RI EAP Opinion 92-40: an attorney-trustee accused by an elderly client may seek a guardian under Rule 1.14
• RI EAP Opinion 92-16: representing a client with a disability under Rule 1.14

Source

• Landing page: https://www.courts.ri.gov/attorney-resources/Pages/Ethics-Advisory-Panel-default.aspx
• Original PDF: https://www.courts.ri.gov/Opinions/EAP%2096-05.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.

Ethics Advisory Panel
Opinion 96-05, - Request # 646
Issued, March 14, 1996

Facts:

The inquiring attorney successfully collected the proceeds of a life insurance policy for a client who was the beneficiary. The inquiring attorney is concerned with the client's ability to handle the money because she was under treatment for a mental disorder. The client's doctor and social worker both believe that the client is vulnerable to those who may try to acquire her money. The inquiring attorney suggested that a guardian be appointed to help the client with her financial matters. A friend of the client's agreed to hold her bank book temporarily until a permanent guardian is appointed. The friend, with the inquiring attorney's permission, has disbursed $30,000.00 to the client for various bills. The inquiring attorney is concerned that his/her client may be taken advantage of if a guardian is not appointed. The client at first consented to limited guardianship, but has now changed her mind.

Issue Presented:

The inquiring attorney asks what are his/her obligations regarding the client's inability to properly handle her financial affairs?

Opinion:

If the attorney believes that the client cannot adequately act in her own interest, he/she should seek to have a guardian appointed for her. Otherwise, the attorney owes her no duty beyond to maintain, so far as possible, a normal client-lawyer relationship, assisting her with advice which will help her protect her interests.

Reasoning:

Rule 1.14 entitled "Client Under a Disability" states:

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

(b) A lawyer may seek the appointment of a guardian, or take other protective action with respect to a client only when the lawyer reasonably believes that the client cannot adequately act in the client's own interest.

The comments that follow Rule 1.14 offer clarification in this situation and state, in part:

... The fact that a client suffers a disability does not diminish the lawyer's obligation to treat the client with attention and respect. If the person has no guardian or legal representative, the lawyer often must act as de facto guardian. Even if the person does have a legal representative, the lawyer should as far as possible accord the represented person the status of client, particularly in maintaining communication. If a legal representative has already been appointed for the client, the lawyer should ordinarily look to the representative for decisions on behalf of the client. If a legal representative has not been appointed, the lawyer should see to such an appointment where it would serve the client's best interests...

The inquiring attorney has a few choices when the client's competency is in serious doubt. Those choices are: to withdraw, to seek appointment of a guardian, to seek unofficial consent from a family member or close friend, to persuade the client to make a different choice, to proceed as de facto guardian or to continue to presume competence irrebuttably. See, Tremblay, On Persuasion and Paternalism: Lawyer Decisionmaking and the Questionably Competent Client, 1987 Utah L. Rev. 515, 519-520 (1987). In the instant case, if the inquiring attorney reasonably believes that the client cannot adequately act in his/her own interest, he/she should seek appointment of a guardian.