How should a California lawyer represent a client whose decision-making capacity may be impaired, and when may the lawyer take protective action?
State Bar of California COPRAC Formal Opinion 2021-207: Ethical Obligations of a Lawyer for a Client with Diminished Capacity
Short answer: The opinion concludes that a lawyer for a client with diminished capacity should attempt, insofar as reasonably possible, to preserve a normal attorney-client relationship; that informed and disinterested judgments about a client's capacity should not be treated as unethical in hindsight; that protective measures generally require the client's informed consent; and that a competent client may, on appropriate terms, give advance consent to protective disclosure in the event of later incapacity.
Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the State Bar of California's rules of professional conduct and are persuasive authority. This summary is for research purposes only and is not legal advice. Verify current rules before acting on any specific guidance.
About this page: The plain-English summary and Q&A below were written by Ezel based on the official opinion. The opinion text is reproduced at the bottom; the official source (linked) controls.
Plain-English summary
The opinion addresses ethical obligations of lawyers for adults with diminished capacity in civil litigation, transactional, and estate-planning matters. It opens by noting that California did not adopt the Second Commission's proposed Rule 1.14 (the California version of ABA Model Rule 1.14), so the analysis runs through the existing rules instead: Rules 1.0.1(e) (informed consent), 1.1 (competence), 1.2 (scope of representation), 1.4 (communication), 1.6 (confidentiality), 1.7 (conflicts of interest), and 8.4.1 (nondiscrimination), as well as Business and Professions Code section 6068(e).
On the duty to preserve a normal relationship, the opinion holds that the lawyer's ethical obligations do not change because of the client's diminished capacity, but the lawyer may need to change how those obligations are fulfilled. The lawyer must take reasonable steps to make communication effective despite cognitive limits, may involve persons assisting the client where doing so is necessary to understand or convey information (with the client's informed consent where required), and may not allow assisting persons to displace the client's decision-making role.
On the lawyer's capacity judgments, the opinion concludes that lawyers must sometimes make difficult judgments about whether a client has sufficient capacity to enter the lawyer-client relationship, to authorize particular actions, or to make particular decisions. Per the opinion, a lawyer's informed and disinterested judgment of capacity will not be treated as unethical merely because subsequent events show it was mistaken. The opinion identifies factors a lawyer may consider (consistency, ability to articulate reasoning, ability to appreciate consequences, vulnerability to undue influence) and notes that consultation with experts, with the client's informed consent, is among the steps the lawyer may take.
On protective action, the opinion holds that the lawyer's authority to take protective measures (for example, disclosing confidential information to a third party who can help, or initiating a conservatorship) is constrained by California's confidentiality rules. With limited exceptions, protective disclosure requires the client's informed consent. Where the client cannot or does not give consent, the lawyer may be unable to protect the client from harm; the opinion notes that California's confidentiality and conflict-of-interest rules bar a lawyer from initiating conservatorship proceedings against the client without informed written consent.
On advanced consent, the opinion concludes that a lawyer representing a competent client may propose that the client give advance consent to protective disclosure in the event that the client later becomes incapacitated and the incapacity exposes the client to harm. Such consent is ethically proper if it is appropriately limited (to disclosure reasonably necessary to prevent harm), fully informed, revocable while the client retains capacity, in writing, and contained in a separate document. The opinion analyzes four scenarios: a client opposing a conservatorship petition by family members; a client whose testamentary capacity the lawyer comes to doubt during the engagement; a client whose nephew attempts to gatekeep all communications; and a competent client offered an advance-consent document at the start of representation.
In practice
Under this opinion, conduct that preserves the client's decision-making authority while accommodating cognitive limits is consistent with California's rules. Per the opinion, the analysis turns on the lawyer's judgment about capacity in the particular matter, on whether the client can give informed consent, and on whether protective measures the lawyer could otherwise take are barred by California's confidentiality framework. The opinion identifies advance consent as one tool available at the outset of representation when the lawyer reasonably anticipates that future incapacity could expose the client to harm.
In litigation involving a client's own capacity (such as a contested conservatorship), the opinion concludes the lawyer's duties of loyalty and zealous advocacy require carrying out the client's expressed objectives once the client has received candid advice about risks and alternatives. In estate planning, when the lawyer reasonably concludes the client lacks even the lower capacity required for testamentary decisions, the opinion holds the duty of loyalty requires the lawyer to decline to prepare the instrument.
Common questions
Q: Does California have a version of ABA Model Rule 1.14 on diminished-capacity clients?
A: No. The opinion notes that the Second Commission proposed a California Rule 1.14 but the California Supreme Court did not adopt it. Per the opinion, the analysis therefore proceeds under the existing rules (1.0.1(e), 1.1, 1.2, 1.4, 1.6, 1.7, 8.4.1) and Business and Professions Code section 6068(e).
Q: If the lawyer later turns out to have been wrong about the client's capacity, is that itself an ethics violation?
A: Per the opinion, no, provided the lawyer's judgment was informed and disinterested. The opinion states that such judgments "should not be viewed as unethical simply because subsequent events prove them to have been mistaken."
Q: Can a California lawyer initiate conservatorship proceedings on behalf of a client the lawyer believes is incapacitated?
A: The opinion concludes that California's confidentiality and conflict-of-interest rules bar a lawyer from initiating conservatorship proceedings against the client without the client's informed written consent.
Q: Can a lawyer disclose confidential information to family members or authorities to protect a client from harm?
A: Generally not without the client's informed consent. The opinion concludes that California's confidentiality rules do not permit the disclosure of information about the client's condition to third parties without informed consent. Where the client can still give informed consent despite cognitive deficits, the opinion allows the lawyer to disclose to concerned relatives or other authorities consistent with that consent.
Q: What does the opinion say about advance consent to future protective disclosure?
A: The opinion concludes a competent client may give advance consent to disclosure that becomes operative if the lawyer later reasonably believes the client is incapacitated and that the incapacity exposes the client to harm. The consent must be appropriately limited to disclosures reasonably necessary to prevent harm, fully informed, revocable while the client has capacity, in writing, and in a separate document.
Q: What if a relative tries to act as a gatekeeper between the lawyer and the client?
A: In Scenario 3, where the client's nephew attempts to substitute himself, the opinion concludes the lawyer is not required to accept the nephew's claim of authority. The opinion identifies continued direct outreach to the client as a reasonable step; if direct contact is foreclosed, the lawyer may be unable to protect the client without consent.
Background and rules framework
The opinion interprets California Rules of Professional Conduct 1.0.1(e) (informed consent), 1.1 (competence), 1.2 (scope of representation), 1.4 (communication), 1.6 (confidentiality), 1.7 (conflicts of interest), and 8.4.1 (nondiscrimination), and Business and Professions Code section 6068, subdivision (e). It explains that ABA Model Rule 1.14 (the Model Rules' diminished-capacity rule) does not have a California analog because the proposed California version of Rule 1.14 was not adopted. The opinion cites Restatement (Third) of the Law Governing Lawyers section 24 throughout, along with bar opinions from other jurisdictions for comparative reference.
Citations and references
Rules of Professional Conduct:
- California Rules 1.0.1(e), 1.1, 1.2, 1.4, 1.6, 1.7, 8.4.1
- ABA Model Rule 1.14 (referenced as unadopted in California)
Statutes:
- Cal. Bus. & Prof. Code Section 6068, subdivision (e)
Other authorities:
- Restatement (Third) of the Law Governing Lawyers Section 24
See also
- CA COPRAC Op. 2021-206: Lawyer Mental Impairment - applies parallel reasoning to lawyer (rather than client) capacity
- CA COPRAC Op. 2024-209: Succession Planning - applies competence and Rule 1.4 to lawyer interruption
- CA COPRAC Op. 2023-208: Remote-Practice Ethics - applies the broader Rule 1.4 communication framework
Source
- Landing page: https://www.calbar.ca.gov/legal-professionals/ethics-compliance-practice-resources/ethics/ethics-opinions
- Original PDF: https://www.calbar.ca.gov/sites/default/files/portals/0/documents/publicComment/2021/COPRAC-Formal-Opinion-No.2021-207.pdf
Original opinion text
Reproduced from the official source for research purposes. The linked source is authoritative.
THE STATE BAR OF CALIFORNIA
STANDING COMMITTEE ON
PROFESSIONAL RESPONSIBILITY AND CONDUCT
FORMAL OPINION NO. 2021-207
ISSUES: What are the ethical obligations of a lawyer for a client with diminished
capacity?
DIGEST: A lawyer for a client with diminished capacity should attempt, insofar as
reasonably possible, to preserve a normal attorney-client relationship
with the client, that is, a relationship in which the client makes those
decisions normally reserved to the client. The lawyer’s ethical obligations
to such a client do not change, but the client’s diminished capacity may
require the lawyer to change how the lawyer goes about fulfilling them.
In particular, the duties of competence, communication, loyalty, and
nondiscrimination may require additional measures to ensure that the
client’s decision-making authority is preserved and respected. In
representing such a client, a lawyer must sometimes make difficult
judgments relating to the client’s capacity. Provided that such judgments
are informed and disinterested, a lawyer should not be viewed as having
acted unethically simply because in hindsight those judgments are later
determined to have been mistaken. In some situations, the client’s lack of
capacity may require that the lawyer decline to effectuate the client’s
expressed wishes. When the lawyer reasonably believes that the client’s
diminished capacity exposes the client to harm, the lawyer may seek the
client’s informed consent to take protective measures. If the client
cannot or does not give informed consent, the lawyer may be unable to
protect the client against harm. A lawyer representing a competent client
may propose to the client that the client give advanced consent to
protective disclosure in the event that the client later becomes
incapacitated and that incapacity exposes the client to harm. If
appropriately limited and informed, such a consent is ethically proper.
AUTHORITIES
INTERPRETED: Rules of Professional Conduct 1.0.1(e), 1.1, 1.2, 1.4, 1.6, 1.7, and 8.4.1 of
the Rules of Professional Conduct of the State Bar of California.1
Business and Professions Code section 6068(e).
1
Unless otherwise indicated, all references to “rules” in this opinion will be to the Rules of
Professional Conduct of the State Bar of California.
1
INTRODUCTION AND SCOPE
Few problems in the law of professional responsibility are more difficult than the issue of a
lawyer’s obligations to a client with diminished decision-making capacity. Many American
jurisdictions have sought to clarify those obligations by enacting a version of American Bar
Association Model Rule 1.14. As part of California’s recent effort to revise its Rules of
Professional Conduct, the Second Commission for the Revision of the Rules of Professional
Conduct prepared and submitted to the California Supreme Court a proposed California version
of rule 1.14, proposed rule 1.14, that was intended to reconcile the approach of the ABA Model
Rule with unique features of California law, including California’s statute and rule governing
attorney-client confidentiality. The Supreme Court did not adopt proposed rule 1.14.2
Therefore, there is a need for guidance with respect to the ethical obligations of attorneys for
clients with diminished capacity under the Rules of Professional Conduct and the State Bar Act.3
This opinion focuses on the ethical obligations of lawyers for adults with diminished capacity in
civil litigation, transactional, and estate planning matters, including lawyers who are privately
retained, court-appointed, or employed by public or non-profit organizations. It does not
extend to the representation of a minor, to criminal matters, or to situations where the
putative client already has a guardian ad litem or other person empowered to act for them—
though the principles discussed here may also apply in those cases.
Within those practice settings, the opinion focuses on four issues central to the ethical
representation of clients with diminished capacity: (a) the lawyer’s duty to maintain, insofar as
reasonably possible, a normal attorney-client relationship with the client, as reflected in the
rules relating to competence, communication, confidentiality, loyalty and nondiscrimination;
(b) the lawyer’s obligations in making judgments or decisions relating to the client’s capacity;4
(c) the existence and scope of the lawyer’s authority to take protective action on behalf of a
client with diminished capacity; and (d) the ethical propriety of advanced consent by a
competent client to the lawyer’s disclosure of confidential information in the event that the
2
Proposed rule 1.14 and the Commission’s Report and Recommendation can be found at:
https://www.calbar.ca.gov/portals/0/documents/rules/rrc2014/final_rules/rrc2-1.14-all.pdf.
3
Because the Supreme Court denied the request to approve the rule in its entirety and without
explanation, we do not believe that the fact that a rule or concept was contained in proposed rule 1.14
can be regarded as grounds for rejecting it if the rule or concept is otherwise consistent with California’s
existing ethics rules.
4
In this opinion we use the terms judgment and decision interchangeably. No difference in meaning
is intended. We do not suggest or conclude that lawyers must themselves acquire the medical or
psychological expertise required to diagnose a client’s mental condition. However, based on their own
observations, experience, or other sources, including consultation with experts in appropriate situations,
lawyers may in certain circumstances form a reasonable belief, or make a legal judgment, that a client
has diminished capacity. Such a reasonable belief or judgment about a client’s diminished capacity may
in turn affect the ethical considerations in representing such a client, as addressed in this opinion.
2
client’s future diminished capacity exposes the client to harm that could be prevented by such
disclosure.
This opinion is based on existing California law. Though other federal and state laws may
regulate an attorney’s relationship with a client or prospective client with diminished capacity,
we discuss those laws here only as they bear on a lawyer’s ethical obligations.5 Finally, this
opinion does not address issues of the standard of care applicable to professional decisions
concerning the representation of such a client. We assume that in each of the fact situations
that we discuss, the lawyer’s actions, beliefs, and judgments as described have been reached in
accord with the applicable standard of care.
STATEMENT OF FACTS
Scenario 1
Client was injured in an automobile accident, suffering a brain injury that has resulted in a
change in personality, episodes of mania, and an increase in highly risky personal behavior.
Client’s relatives have recently said that they plan to institute conservatorship proceedings
against Client. Client consults Lawyer about opposing the application for a conservatorship.
With Client’s consent, Lawyer involves both a diagnostician and a close friend of Client in the
process of determining Client’s capacity and wishes, scheduling consultations at times when
Client is not manic. Based upon that process, Lawyer reasonably believes that the evidence
supports establishing a conservatorship and that doing so would protect Client from substantial
risks of harm. Lawyer has also concluded that Client could improve his own decision-making,
and significantly reduce the likelihood of a conservatorship, if he were, with the lawyer’s help,
to establish his own supportive decision-making structure involving both the friend and the
diagnostician. Lawyer has advised Client of these conclusions, but Client has rejected Lawyer’s
advice and wishes to oppose the establishment of the conservatorship. Lawyer believes that
the decision is imprudent, but also reasonably believes that Client has the capacity to make the
decision to oppose the conservatorship, and that the decision reflects Client’s commitment to
maintaining personal liberty, notwithstanding the risks involved. May Lawyer ethically
represent the client in opposing the establishment of a conservatorship?
Scenario 2
Lawyer has known and represented Client for many years and prepared Client’s initial estate
plan. In recent years, Lawyer has frequently seen Client socially and has noticed signs of
diminished capacity. Client has now asked Lawyer to prepare a revised estate plan, largely
disinheriting Client’s children in favor of Client’s younger companion, who has recently moved
in with Client. Based upon information available to Lawyer and further reasonable inquiries,
Lawyer reasonably believes that Client lacks testamentary capacity, that, but for Client’s
diminished capacity, Client would not make the new testamentary dispositions, and that Client
5
See Discussion section B.4., infra.
3
is at substantial risk of being subjected to undue influence by Client’s younger companion. May
Lawyer ethically prepare the new estate plan?
Scenario 3
Lawyer represented Client in a recently settled personal injury matter, involving a large
recovery, and has now been asked by Client to assist in making a loan to Client’s nephew.
Lawyer knows that Client suffered a head trauma in the accident but had no reason to doubt
Client’s capacity during the course of the personal injury case. When Client meets with Lawyer
to discuss the loan, however, Lawyer notices a deterioration in Client’s apparent capacity.
Lawyer also has significant concerns about the proposed loan, whose terms are highly favorable
to the nephew, and about the nephew himself, who has a criminal conviction for securities
fraud and does not appear to have Client’s welfare at heart. With Client’s consent, Lawyer
retains a physician as a consultant to assess Client’s capacity. After examining Client, the
consultant reports that Client’s condition has deteriorated and that in the consultant’s opinion
Client is now incapacitated. Based upon that advice, Lawyer has reasonably concluded that
Client lacks legal capacity to enter into the loan transaction. Lawyer seeks to contact Client to
advise him against the transaction, but the phone is answered by the nephew, who tells Lawyer
that Client has given the nephew a power of attorney and that he will pass the information on
to Client. Based upon these circumstances, Lawyer reasonably believes that the nephew lacks
authority to act for Client, and that Client’s diminished capacity exposes Client to a substantial
threat of financial harm at the nephew’s hands and will likely prevent Client from recognizing or
acting to protect against that harm. Lawyer knows that Client has other relatives who, if aware
of the situation, would take steps to protect Client’s interest. What, if any, measures may
Lawyer ethically take to protect Client from harm?
Scenario 4
Lawyer is preparing an estate plan for a competent client with substantial experience and
resources and a difficult and contentious family situation. In the course of their discussions,
Client discloses that a family member suffered from dementia related to Alzheimer’s disease,
and as a consequence was financially exploited by other family members. Client wants to avoid
or minimize the risk of something similar happening to Client in the future. Lawyer is aware that
one way to protect against that risk would be for Client to give advance consent to the lawyer’s
disclosure of client confidential information at a future time where Lawyer reasonably believes
that Client is incapacitated, that the incapacity exposes Client to serious financial or
psychological harm, and that the disclosure of the information is reasonably necessary to
prevent that harm. Assuming that it is consistent with the duty of care to do so, under what
conditions, if any, may Lawyer ethically recommend that Client consider or execute such a
consent?
4
DISCUSSION AND ANALYSIS
A. Capacity and Diminished Capacity
Capacity. Capacity is the ability to make and communicate a decision with legal consequences.
It is not mentioned or defined within California’s Rules of Professional Conduct or the State Bar
Act. Rather, it is defined by external law. Because the content and application of that law will
often be relevant, and sometimes essential, to ethical decision-making by a lawyer whose
client’s capacity is or could become diminished, we briefly discuss it here.
To make a decision other than those concerning testamentary matters and consent to health
care, a person must have “the ability to communicate verbally, or by any other means, the
decision, and to understand and appreciate, to the extent relevant, all of the following:
(a) The rights, duties, and responsibilities created by, or affected by the decision.
(b) The probable consequences for the decisionmaker and, where appropriate, the persons
affected by the decision.
(c) The significant risks, benefits, and reasonable alternatives involved in the decision.”
(Cal. Prob. Code, § 812.)
A person’s capacity is presumed; the presumption goes to the burden of proof, and thus must
be overcome by affirmative evidence showing lack of capacity. Probate Code section 810(a).
The presumption of capacity is not overcome by the diagnosis of a mental or physical disorder.
Instead, there must be affirmative evidence of a deficit in one or more of the person’s mental
functions,6 which, by itself or in combination with others, “significantly impairs the person’s
ability to understand and appreciate the consequences of his or her actions with regard to the
type of act or decision in question.” Probate Code section 811(b).
These provisions do not enact a single standard for contractual capacity. Andersen v. Hunt
(2011) 195 Cal.App.4th 722, 730 [126 Cal.Rptr.3d 736]. Rather, capacity “must be evaluated by
a person's ability to appreciate the consequences of the particular act he or she wishes to take.”
Id. (Emphasis in original.) The required level of understanding depends on the complexity of the
decision being made. Id.; In re Marriage of Greenway (2013) 217 Cal.App.4th 628, 641 [158
Cal.Rptr.3d 364]. Moreover, in determining whether a person suffers from a deficit that is
substantial enough to warrant a finding of lack of capacity to do a particular act, the court may
6
The statute identifies a nonexclusive list of mental functions and factors, broadly grouped under
four headings: alertness and attention; information processing; thought processes; ability to modulate
mood and affect. (Cal. Prob. Code, § 811(a)(1)–(4).)
5
take into consideration, the “frequency, severity, and duration of periods of impairment.”
Probate Code section 811(c).7
Marital and testamentary capacity are determined by different and lower standards. “Marriage
arises out of a civil contract, but courts recognize this is a special kind of contract that does not
require the same level of mental capacity of the parties as other kinds of contracts.” Greenway,
supra, 217 Cal.App.4th at 641. “Similarly, the standard for testamentary capacity is
exceptionally low.” Id. at 242. Under Probate Code section 6100.5, a person lacks the capacity
to make a will if at the time of making either:
(1) The individual does not have sufficient mental capacity to be able to do any of the
following:
(A) Understand the nature of the testamentary act.
(B) Understand and recollect the nature and situation of the individual’s property.
(C) Remember and understand the individual’s relations to living descendants,
spouse, and parents, and those whose interests are affected by the will.
(2) The individual suffers from a mental health disorder with symptoms including
delusions or hallucinations, which delusions or hallucinations result in the individual’s
devising property in a way that, except for the existence of the delusions or
hallucinations, the individual would not have done.
(Cal. Prob. Code, § 6100.5.)
Like the more general standard of capacity, capacity to make a will is presumed, and must be
rebutted by evidence that the testator’s lack of mental capacity or mental disorder existed at
the time of making the will. See, Andersen, supra, 196 Cal.App.4th at 726–728.
As the foregoing discussion makes clear, capacity is presumed and is defined by standards that
often require both legal and factual judgment in application.8 Moreover, the question of
capacity is decided on an issue-by-issue basis and is situational. The fact that a client may lack
capacity to make a particular decision does not mean that the client cannot make a different
decision involving different issues or different levels of complexity, and the fact that a client
7
In the case of capacity to contract, a presumption affecting the burden of proof arises that a person
is of unsound mind “if the person is substantially unable to manage his or her own financial resources or
resist fraud or undue influence.” (Cal. Civ. Code, § 39(b).) See, In re Marriage of Greenway (2013) 217
Cal.App.4th 628, 642 [158 Cal.Rptr.3d 364]. The interaction between the Civil Code and the Probate
Code presumptions is beyond the scope of this brief informational summary.
8
See generally, Capacity and Undue Influence: Assessing, Challenging, and Defending (Cal. CEB Action
Guide 2020).
6
may lack the capacity to make a decision at one time does not necessarily mean that the client
lacks capacity to make that decision at a different and more favorable time.
Diminished capacity. Diminished capacity is also not defined in the Rules of Professional
Conduct. In extreme cases, the client may be wholly incapacitated and unable to make or
communicate any relevant decision. The client may be incapable of making or communicating a
particular decision, but have the capacity to make other decisions associated with the
representation. Alternatively, the client may lack the capacity to make some decisions without
some assistance or accommodation, but have the capacity to make those decisions with
assistance or accommodation.
B. The Impact of Diminished Capacity on the Professional Relationship
The concept of diminished capacity intersects with the Rules of Professional Conduct wherever
those rules involve a decision that is reserved to the client. The law of capacity governs client
decisions about the formation and termination of the attorney-client relationship. It governs
decisions occurring within that relationship in the many situations where a particular action
requires the client’s informed consent. See, e.g., rules 1.5(a)(2), 1.6(a), 1.7(a)–(b), 1.8.1, 1.8.2
1.8.6, and 1.8.7. And it also governs the substantive decisions concerning the objectives of the
representation or the client’s “substantial rights” that the professional rules reserve to the
client. Rule 1.2; Blanton v. Womancare, Inc. (1985) 38 Cal.3d 396, 404 [212 Cal.Rptr. 151].
When representing a client who has or may have diminished capacity, the lawyer must be alert
to the risk of concluding too readily that the client is not capable of making decisions about the
representation, without due attention to the legal presumption of capacity, without assessing
capacity on a decision by decision basis, and without taking any measures to enhance the
client’s ability to make and communicate an effective decision. At the same time, the lawyer
must also be alert to the risk that, even with appropriate advice and assistance, the client may
be unable to make a legally effective decision, frustrating the client’s objectives, or that
diminished capacity will result in a decision that does not serve the client’s interest or exposes
them to harm that the client cannot understand or prevent.
In representing a client who suffers, or may be suffering, from diminished capacity, two
overarching principles are of particular importance. First, in such representations, “the lawyer
shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the
client,” that is, a relationship in which the client makes those decisions normally reserved to
clients. See, e.g., Tuft et al., Cal. Practice Guide: Professional Responsibility (The Rutter Group
2019) Ch. 7-24, § 7:73.5. This principle is not separately codified in the Rules of Professional
Conduct, but as the discussion below will show, it necessarily flows from the obligations
contained in those rules, many of which expressly require conduct reasonable in the
7
circumstances. This principle will often require the lawyer to propose or adopt practices and
procedures designed to enhance or protect the client’s capacity to decide.9
The second principle recognizes that representing a client with diminished capacity may require
a lawyer to make difficult decisions relating to capacity in situations of factual and legal
uncertainty. The uncertainty may be legal: there is limited authority construing California’s
capacity statutes or applying them to common factual situations. Or it may be factual, for
example, involving, among other things, uncertainties in the diagnosis or prognosis of an
underlying condition, the client’s expressed or actual interests, the reliability of those who
claim to have the client’s interests at heart, or the severity and imminence of potential harm.
While California has no law that speaks directly to the question, we believe that it would follow
other American jurisdictions in holding that in this context a disinterested lawyer who exercises
“an informed professional judgment in choosing among . . . imperfect alternatives” should not
be viewed as having acted unethically simply because in hindsight the judgment is later
determined to have been mistaken. Restatement (Third) of the Law Governing Lawyers, section
24, comments (b) and (d); see also American Bar Association, Formal Opinion 491 at 9 and note
26 (2020) (discussing the “numerous contexts” evaluating attorney conduct where “courts and
regulators have warned against hindsight bias”); cf. Smith v. Lewis (1975) 13 Cal.3d 349, 359
[118 Cal.Rptr. 621]; Davis v. Damrell (1981) 119 Cal.App.3d 883, 887 [174 Cal.Rptr. 257] (no
liability for professional negligence when the state of the law was unsettled at the time the
professional advice was rendered and the advice was based upon the exercise of an informed
judgment.)10
1. Competence
The duty of competence calls for the lawyer to exercise the “(i) learning and skill and (ii) mental,
emotional and physical ability reasonably necessary” to provide the legal services called for in
9
Green, “I’m OK-You’re OK”: Educating Lawyers to “Maintain a Normal Client-Lawyer Relationship”
with a Client with a Mental Disability (2003-2004) 28 J. Legal Prof. 65, 81 (“a lawyer's duty to her client
does not change because the client has a mental disability. However, a lawyer does need a heightened
sense of awareness to the needs of a client with a mental disability and may need to be more diligent in
assuring effective communications and respecting the objectives of the client.”)
10
The Restatement has been found persuasive by at least one California court addressing a capacity-
related issue where there was no California authority directly on point. Moore v. Anderson, Zeigler,
Disharoon, Gallagher & Gray, PC (2003) 109 Cal.App.4th 1287, 1301–1302 [135 Cal.Rptr.2d 888]. The
Rules of Professional Conduct also permit consideration of ethics opinions, rules, and standards from
other jurisdictions for guidance on proper professional conduct. Rule 1.0, Comment [4].
8
the representation. Rule 1.1(b). A violation of rule 1.1 requires intentional, reckless, grossly
negligent or repeated violations of this standard. Rule 1.1(a).
When a client shows signs of diminished capacity, the lawyer’s duty of competence may require
the lawyer to inquire into or make judgments concerning the client’s capacity.11 If the lawyer
lacks learning and skill in addressing issues of a client’s capacity, and cannot readily acquire it,
the lawyer may wish to consider associating with or consulting a lawyer with more experience
in doing so.12 See rule 1.1(c). In addition, the lawyer may consider, with the client's consent
where required, consulting medical, psychological, or other professionals with an
understanding of the cognitive and emotional issues involved in determining the client’s
capacity and how the attorney-client relationship should be adjusted to reflect them. See
Restatement (Third) of the Law Governing Lawyers, section 24, comment d (“Where practical
and reasonably available, independent professional evaluation of the client’s capacity may be
sought.”); American College of Trusts and Estates Counsel, Commentaries on the Model Rules
of Professional Conduct, Rule 1.14 (4th ed. 2006) SM061 ALI-ABA 541 (“ACTEC Commentaries”)
(“In appropriate circumstances, the lawyer may seek the assistance of a qualified
professional.”). The duty of competence may also require the lawyer to consider, or implement,
measures to support the client’s capacity to make decisions relevant to the representation. For
example, the lawyer may modify how lawyer-client communications are conducted by adjusting
the interview environment, communicating more slowly or in writing, spending extra time or
having multiple sessions, or communicating with the client at times when the client is less
fatigued, more lucid or more receptive.13 Alternatively, with the client’s consent as required,
the lawyer may seek to enhance the client’s communications and decision-making capacity by
involving family, friends or professionals to support the client in understanding, considering and
11
Fleischner and Schur, Representing Clients Who Have or May Have “Diminished Capacity”: Ethics
Issues (2007) 41 Clearinghouse Rev. J. of Poverty L. & Pol’yy 346, 352 (“as uneasy as some attorneys may
be about assessing their client’s capacity, case situations . . . often demand it.”) Sabatino, Representing a
Client with Diminished Capacity: How Do You Know It And What Do You Do About It (2000) 16 J. of Am.
Acad. of Matrimonial Lawyers 481, 482 (“Although lawyers seldom receive formal capacity assessment
training, they make capacity judgments on a regular basis.”) As noted above in footnote 4, we do not
suggest or conclude that a lawyer must become expert in, or must independently make, the technical
medical and psychological assessments that may sometimes underlie a determination of capacity.
Sometimes a lawyer will be able to address capacity issues on the basis of the lawyer’s own observations
and experience, without regard to such expertise. Where application of legal capacity standards
depends upon medical or psychological issues outside of the lawyer’s expertise, however, the lawyer
may, if consistent with the applicable standard of care, consider involving such professionals, as
discussed below.
12
A lawyer may wish to seek the client’s advance consent to the association of lawyers or other
professional as part of the retention agreement or otherwise. To the extent that such a consent
contemplates disclosure of client confidential information, the lawyer should take account of the
standards for such consents discussed later in this opinion.
13
Fleischner and Schur, supra, note 6, at 355–356; Sabatino, supra, note 6, at 487–489.
9
communicating decisions relating to the representation. (Rest.3d Law Governing Lawyers,
supra, § 24, com. c.)14
2. Communication
The duty of communication requires that the lawyer, among other things, inform the client
about any matter requiring the client’s informed consent, rule 1.4(a)(1), keep the client
“reasonably informed” about “significant developments relating to the representation,” rule
1.4(a)(3), and “explain a matter to the extent reasonably necessary to permit the client to make
informed decisions regarding the representation.” Rule 1.4(b).
A client’s diminished capacity may also impact how the lawyer complies with the duty to
communicate with the client. Diminished capacity may blunt the client’s understanding of the
client’s own interests and objectives or make it more difficult for the client to communicate
them to third persons. It may also make it more difficult for the client to take in, or to
deliberate upon, the lawyer’s advice. As a consequence, the nature of the lawyer’s reasonable
consultation concerning the means to accomplish the client's objectives, under rule 1.2 and rule
1.4(a)(2), or the explanation that is “reasonably necessary to permit the client to make
informed decisions regarding the representation” under rule 1.4(b) may be different for a client
with diminished capacity. A lawyer seeking to fulfill the duty of communication may want to
consider a number of the measures described above in the discussion of the duty of
competence.
3. Loyalty
The duty of loyalty requires that the lawyer act solely in the client’s interest, and “‘protect [the]
client in every possible way,’” while avoiding “‘any relation which would prevent [the lawyer]
from devoting [the lawyer’s] entire energies to [the] client’s interest.’” Moore v. Anderson,
Zeigler, Disharoon, Gallagher & Gray, PC (2003) 109 Cal.App.4th 1287, 1299 [135 Cal.Rptr.2d
888] (citing Flatt v. Superior Court (1994) 9 Cal.4th 275, 289 [36 Cal.Rptr.2d 537]) (emphasis in
original).
Consistent with the duty of loyalty, a lawyer acting as an advisor is required to “exercise
independent professional judgment,” uninfluenced by the lawyer’s own interests or those of
third parties, and to “render candid advice.” Rule 2.1. A lawyer may, but is not required to, refer
to considerations other than the law, including relevant moral, economic, social, and political
factors. Id. Comment [2].
When a client’s capacity is in doubt, the lawyer’s duty of loyalty continues to require the lawyer
to focus on the lawyer’s “primary responsibility to ensure that [the course of conduct chosen]
14
Such measures may include a supportive decision-making agreement, in which relatives, friends or
professionals agree to support the client in making his or her own decisions. For extensive information
on supportive decision-making, see: https://www.aclu.org/other/supported-decision-making-resource-
library.
10
effectuates the client’s wishes and that the client understands the available options and the
legal and practical implications of whatever course of action is ultimately chosen.” Moore,
supra, 109 Cal.App.4th at 1298 (citations and quotations omitted). In determining and acting on
the client’s interest, the lawyer’s obligation to exercise independent judgment requires
attention to the client’s expressed wishes, if known or reasonably knowable.15 It also requires
putting aside any conventional prejudices associated with the client’s condition. In addition,
lawyers should keep in mind the statutory presumption of capacity and should avoid
paternalism, being “careful not to construe as proof of disability a client’s insistence on a view
of the client’s welfare that a lawyer considers unwise or otherwise at variance with the lawyer’s
own views.” (Rest.3d Law Governing Lawyers, supra, § 24, com. c.)
Other persons may have also strong interests in the outcome of the client’s decisions. Where
that is the case, the lawyer should “keep the client’s interests foremost,” and consider the
interests of others only insofar as they matter to the client. ACTEC Commentaries, at 544 (cited
in Moore, supra, 109 Cal.App.4th at 1299). While the involvement of interested third persons in
the client’s deliberative process may enhance the client’s ability to make and communicate
decisions, and the lawyer’s ability to understand the client’s interests, lawyers must also be
alert to the potential that their involvement could increase the risk of harm to the client,
whether through undue influence or harmful disclosure of confidential information.
While the duty of loyalty requires the lawyer for a client with diminished capacity to pay close
attention to the client’s expressed interests, diminished capacity may also give rise to serious
concerns about whether the client’s chosen course actually “effectuates the client’s wishes”
and reflects an understanding of its “legal and practical implications.” The duties of loyalty and
independent professional judgment also require attention to those concerns.16 When a lawyer
represents a client with diminished capacity in opposing the establishment of a
conservatorship, these questions may be less urgent, because the persons seeking the
15
A lawyer may sometimes represent a person who clearly lacks the ability to make or communicate
any preference or decision concerning the matters typically reserved to a client. This may occur, for
example, when the lawyer is acting pursuant to court appointment. See Conservatorship of Drabick
(1988) 200 Cal.App.3d 185 [245 Cal.Rptr. 840] (court appointed attorney for person in persistent
vegetative state). In such cases, the lawyer must be guided by the lawyer’s independent understanding
of the client’s best interests. Id. at 212.
16
In Moore, the court held that the lawyer did not owe a common law duty of care to the beneficiaries
of a client’s prior will to assess the client’s capacity to make a new will. (Moore, at p. 1298.) The Court
reasoned that imposing such a duty in favor of the interested beneficiaries would be inconsistent with
the lawyer’s duty of loyalty to the testator and could lead to lawyers being unwilling to prepare new
wills for testators whose capacity was potentially subject to attack. (Id. at 1298–1299.) The Court did not
hold that the lawyer owed no duty to the client to consider capacity. Instead, it stated that “[t]he
attorney who is persuaded of the client’s testamentary capacity by his or her own observations and
experience, and who drafts the will accordingly, fulfills [the] duty of loyalty to the testator.” (Id. at 1299.)
(Emphasis added.)
11
conservatorship can be counted upon to bring those interests to the attention of the tribunal.
(Rest.3d Law Governing Lawyers, supra, § 24, com. c.) Similar considerations may also apply in
other litigation settings where the client’s capacity is in issue.
When acting in a counseling role, however, the lawyer may have a greater obligation to
consider the possible consequences of the client’s diminished capacity. In the estate planning
arena, for example, it is said that “because of the importance of testamentary freedom, the
lawyer may properly assist clients whose testamentary capacity appears to be borderline,”
including by taking steps to preserve evidence that would support a finding of capacity. ACTEC
Commentaries, at 56 (cited in Moore, supra, 109 Cal.App.4th at 1306). On the other hand, the
same authorities state that to protect the client “[a] lawyer generally should not prepare a will
or other dispositive instrument for a client who the lawyer reasonably believes lacks the
requisite capacity.” Id. The two positions reflect common sense judgments that effectuating the
client’s stated preferences in cases where the client has the capacity to make a decision, though
the issue is close, protects both the client’s autonomy and the client’s interests, while
effectuating a decision made without capacity disserves both. In many situations involving
diminished capacity, the decision whether the duty of loyalty calls for effectuating the client’s
decision or declining to do so will raise difficult questions of judgment without clear or perfect
answers. In such situations, and consistent with the discussion in the introduction to this
section B, above, a disinterested lawyer who exercises informed professional judgment should
not be viewed as having acted unethically simply because subsequent events prove the decision
to have been mistaken.
4. Nondiscrimination
Rule of Professional Conduct 8.4.1(a) provides, in pertinent part, that in “representing a client,
or terminating or refusing to accept the representation of any client, a lawyer shall not:
(1) . . . unlawfully discriminate against persons on the basis of any protected characteristic . . . .”
Whether discrimination is unlawful “shall be determined by reference to applicable state and
federal statutes and decisions making unlawful discrimination . . . in employment and in
offering goods or services to the public.” Rule 8.4.1(c)(3). The protected characteristics covered
by the rule include both “physical disability” and “mental disability.” Rule 8.4.1(c)(1).
Thus, to the extent that federal or state anti-discrimination laws protect persons with
diminished capacity or associated mental or physical conditions, rule 8.4.1 requires a lawyer
who represents such persons to comply with anti-discrimination laws applicable to that
condition.17 Analysis of the scope and content of those laws is beyond the scope of this opinion,
17
Rule 8.4.1(f)(2) provides that the rule does not prohibit “declining or withdrawing from a
representation as required or permitted by rule 1.16.” In addition, Comment [3] to the rule states that:
“A lawyer does not violate this rule by limiting the scope or subject matter of the lawyer’s practice
or by limiting the lawyer’s practice to members of underserved populations. A lawyer also does
not violate this rule by otherwise restricting who will be accepted as clients for advocacy-based
reasons, as required or permitted by these rules or other law.”
12
but an example may be helpful. The Americans with Disabilities Act (ADA) forbids discrimination
against persons with disabilities in places of public accommodation. Covered disabilities include
mental impairments that substantially limit one or more major life activities, a record of having
such impairment, or being regarded as having such an impairment. 28 C.F.R. §§ 36.104–36.105.
Conditions that can lead to diminished capacity may also qualify as disabilities under the Act.
Law offices are places of public accommodation under the Act. 42 U.S.C. § 12181(7)(F).
Prohibited discrimination involves failure to make reasonable accommodations, that is,
modifications in policies, practices and procedures, when such modifications are necessary to
provide services to persons with disabilities. 42 U.S.C. § 12182(b)(2)(A)(ii). Accordingly, in
complying with rule 8.4.1, lawyers who represent clients with diminished capacity should
consider whether the ADA or other similar laws18 require accommodations for their client, in
addition to any measures required by other ethical obligations.
5. Taking Protective Action: Authority, Confidentiality, and Loyalty
When a lawyer represents a client with diminished capacity, and has determined that, as a
consequence of that incapacity, the client is exposed to harm, an initial question is whether the
lawyer continues to have an agency relationship with the client that confers authority to take
protective measures in the client’s best interest. This is a question of law, not of ethics, and
there is little California law on the question.19 Because the legal issue is so closely intertwined
with ethical considerations, however, we briefly review it here. The common law rule is that the
incapacity of the principal wholly terminates the agency relationship. Restatement (Second) of
Agency section 122(1). Clearly, that rule has no application to a lawyer whose authority is
established by court appointment. Moreover, even as to contractual agency relationships, its
application to situations of diminished capacity is doubtful.20 The Restatement of the Law
Governing Lawyers states that:
18
For example, in California, the Unruh Civil Rights Act, Civil Code section 51(b) prohibits
discrimination against persons based upon both “disability” and “medical condition” and declares that
such persons “are entitled to the full and equal accommodations, advantages, facilities, privileges, or
services in all business establishments of every kind whatsoever.”
19
Sullivan v. Dunne (1926) 198 Cal. 183, 192 [244 P. 343] held that a determination of complete
incapacity in a guardianship proceeding, on the basis of evidence that was compelling and essentially
uncontested, terminated a lawyer’s authority to appeal that determination. But the Supreme Court’s
alternative holding was that the lawyer never had any authority to act for the client in the guardianship
proceeding in the first place. The case therefore does not speak clearly to situations where the lawyer’s
preexisting agency was clear and there has been no subsequent judicial determination of incapacity.
Moreover, the case predates both the modern law of capacity and the modern recognition of the rights
of persons with diminished capacity.
20
The Restatement of Agency expressly declined to take a position “as to the effect of the principal’s
temporary incapacity due to a mental disease.” Id. § 122, Reporter’s Note. That logic of that reservation
would seem, however, to apply to many forms of diminished capacity.
13
The general rule of agency law that insanity or incompetence of a principal . . .
terminates an agent’s authority . . . may be inappropriate as applied to a lawyer’s
beneficial efforts to protect the rights of a client with diminished capacity. Such a
client continues to have rights requiring protection and often will be able to
participate to some extent in the representation (see § 24). If representation were
terminated automatically, no one could act for the client until a guardian is
appointed, even in pressing situations. Even if the client has been adjudicated to
be incompetent, it might still be desirable for the representation to continue, for
example to challenge the adjudication on appeal or to represent the client in other
matters. Although a lawyer’s authority does not terminate in such circumstances,
the lawyer must act in accordance with the principles of Section 24 [requiring that
the lawyer maintain insofar as possible, a normal attorney client-relationship and
act in the client’s best interest] in exercising continuing authority.
(Rest.3d Law Governing Lawyers, supra, § 31, com. e.)
The Restatement approach is consistent with other aspects of California law, notably including
the substantive law’s insistence that capacity be assessed on a decision-by-decision basis and
situationally, and with law from other jurisdictions. Graham v. Graham (1950) 40 Wash.2d 64
67–68 [240 P.2d 564] (evidence of incapacity does not terminate client’s right to employ
counsel in opposing appointment of a guardian). Taken together, these authorities suggest that,
absent a final judicial determination of incapacity, a lawyer’s reasonable belief that a client is
incapacitated should not by itself terminate the lawyer’s authority to take protective action in
the client’s best interest if such action is within the scope of the representation. Ultimately,
though, the question of continued authority calls for a legal judgment, informed by the
requirement of the duty of loyalty that the lawyer “protect [the] client in every possible way,”
Moore v. Anderson, Zeigler, Disharoon, Gallagher & Gray, PC (2003) 109 Cal.App.4th 1287, 1299
[135 Cal.Rptr.2d 888] (emphasis in original).
Even when a lawyer for a client with diminished capacity continues to have authority to act, the
duties of confidentiality and loyalty will sometimes limit the steps that a lawyer may take to
respond to a client’s diminished capacity. Information about the client’s diminished capacity,
whether or not subject to the attorney-client privilege, will often be confidential and protected
from disclosure under Business and Professions Code section 6068(e)(1) and rule 1.6 because it
is “information gained in the professional relationship that the client has requested be kept
secret or the disclosure of which would likely be harmful or embarrassing to the client.” (See,
e.g., Cal. State Bar Formal Opn. No. 1989-112 at p. 2; Orange County Bar Association Formal
Opn. No. 95-002 at p. IID-034; Los Angeles County Bar Assn. Formal Opn. No. 450 (1988); San
Diego County Bar Assn. Ethics Opn. 1978-1.)
Unless an exception to the duty of confidentiality applies, a lawyer who wishes to disclose
confidential information concerning the client’s diminished capacity must obtain the client’s
14
informed consent to do so.21 The rules define informed consent as “agreement to a proposed
course of conduct after the lawyer has communicated and explained (i) the relevant
circumstances and (ii) the material risks, including any actual and reasonably foreseeable
adverse consequences of the proposed course of conduct.” Rule 1.0.1(e). The client’s informed
consent to the disclosure of confidential information is required even if the attorney reasonably
believes that the disclosure would benefit the client and is necessary to protect the client from
harm. (Cal. State Bar Formal Opn. No. 1989-112; Tuft et al., Cal. Practice Guide: Professional
Responsibility (The Rutter Group 2019) ch. 7-33, § 7:102.1.) If the client lacks the capacity to
give such consent, is unavailable, or declines to give such consent, the lawyer may not make
such disclosures.22
In assessing the client’s capacity to give informed consent to protective measures, the lawyer
should consider that capacity to give such consent is presumed, that measures may be available
to enhance the client’s capacity to give the consent, and that, in any assessment of capacity,
the required level of understanding depends on the complexity of the decision being made. In
re Marriage of Greenway (2013) 217 Cal.App.4th 628, 641 [158 Cal.Rptr.3d 364]. Accordingly,
less capacity should be required for consents that involve simpler or more familiar subjects or
where the benefits of disclosure are clear and easily understood.23
The duty of confidentiality combines with the duty of loyalty to bar a lawyer from initiating a
conservatorship proceeding against a client without the client’s informed written consent, even
if the lawyer reasonably believes that the standard for a conservatorship has been met and that
bringing the action would be in the client’s best interest. In bringing such an action, a lawyer
would necessarily be disclosing confidential information about the client’s condition, in
violation of rule 1.6, and taking action “directly adverse” to the client, in a manner forbidden by
21
There may also be cases where the persons that the lawyer wishes to involve in the process already
know the relevant confidential information, because, for example, the person regularly provides care for
and interacts with the client.
22
Bar Association of San Francisco Formal Opinion 1999-2 reaches a different conclusion but does not
reconcile its conclusion with the rule’s express requirement forbidding disclosure of confidential
information without informed consent. The Second Commission for the Revision of the Rules of
Professional Conduct, after careful review, also concluded that California law did not grant implied
authority to disclose.
23
Among the measures that a lawyer should consider to reduce the risks associated with an otherwise
beneficial disclosure are obtaining agreements to preserve the confidentiality of information from
persons to whom disclosures are made and managing such communications to preserve, to the fullest
extent possible, any applicable privileges. For example, experts or family members can be involved in
confidential client decision-making consistent with the privilege where such persons are “present to
further the interest of the client in the consultation” or disclosure to them “is reasonably necessary for
the transmission of the information or the accomplishment of the purpose for which the lawyer is
consulted . . . .” See Evidence Code section 952; City and County of San Francisco v. Superior Court
(Hession) 37 Cal.2d 227, 236–238 [37 Cal.2d 227] (expert); Hoiles v. Superior Court, 157 Cal. App. 3d
1192, 1200 [157 Cal.App.3d 1192] (family members).
15
rule 1.7(a). (Cal. State Bar Formal Opn. No. 1989-112; Los Angeles County Bar Assn. Formal
Opinion No. 450.)24
6. Advance Consents to Disclosure of Confidential Information
Because California law limits the implied authority of a lawyer to disclose confidential
information or take other measures to protect an incapacitated client from harm, and because
once incapacitated, a client may be unable to authorize such steps, competent clients may wish
to take steps to ensure that in the event of future diminished capacity, their lawyers will still be
able to disclose relevant confidential information if such disclosure is necessary to protect them
from substantial harm, by giving an advance consent to such disclosure on specified conditions.
The ethical propriety of such a consent is supported by rule 1.2, which permits a client to give
advance authorization “to take specific action on the client’s behalf without further
consultation,” provided that there is no material change in circumstances, the lawyer has
complied with the duty of communication under rule 1.4, and subject to the client’s right to
revoke the authorization at any time. Rule 1.2, Comment [2].
Rule 1.6 does not require that an informed consent to the disclosure of confidential information
be contemporaneous with the disclosure. California State Bar Formal Opinion No. 1989-115
(CAL 1989-115) states that “an advance waiver of . . . confidentiality protections is not, per se,
invalid.” Id. at 3. Rather, it depends on two basic requirements. First, the client must be
“adequately informed of the information and communications which may be disclosed and the
uses to which they may be put.” Second, the disclosures proposed must be consistent with the
lawyer’s duties of competence and loyalty. Id. These requirements are also reflected in Maxwell
v. Superior Court (1982) 30 Cal.3d 606 [180 Cal.Rptr. 177], upon which CAL 1989-115 relied.25
Though not controlling, the standards governing advance consent to a conflict of interest that
has not yet arisen are also relevant. Consistent with CAL 1989-115 and Maxwell, Comment [9]
to rule 1.7 expressly states that rule 1.7 “does not preclude an informed written consent to a
future conflict in compliance with applicable case law.” The central issue with an advance
consent is “the extent to which the client reasonably understands the material risks that the
24
In these respects, California law differs from the majority of American jurisdictions. Under ABA
Model Rules 1.6 and 1.14, a lawyer for a client with diminished capacity has implied authority to disclose
confidential information about the client’s capacity and to take protective measures, including
disclosure of confidential information, in circumstances where diminished capacity exposes the client to
harm. (See ABA Formal Opn. 96-404 (1996).) California’s confidentiality statute and rule of professional
conduct bar this approach.
25
In Maxwell, the Supreme Court held that a criminal defendant’s advance waiver of confidentiality as
part of an arrangement to compensate his chosen defense counsel was adequately informed, 30 Cal.3d
at 621–622, but could not be enforced until after all criminal proceedings had become final, because
allowing the lawyer to disclose prejudicial, confidential material at any time during the pendency of the
criminal proceedings would place the lawyer in violation of the duties of fairness, undivided loyalty, and
diligent defense arising under the professional rules and the contract of retention. Id. at 610 n.1.
16
consent entails. The more comprehensive the explanation . . . , the greater the likelihood that
the client will have the requisite understanding.” Rule 1.7, Comment [9]. Consistent with CAL
1989-115 and Maxwell, however, even a fully informed prospective consent cannot authorize
incompetent representation. Id. Applying these principles of California law, courts have upheld
advance consents to representation adverse to a former client in the same matter26 and to
representation adverse to a current client in an unrelated matter.27
Taken together, these authorities support the ethical propriety of a competent client’s advance
consent permitting the lawyer’s protective disclosure or use of confidential information on
specified conditions.28 But they also point to important limitations on such consents.
First, the client’s consent must be informed within the meaning of rule 1.0.1(e), in that the
lawyer has communicated “(i) the relevant circumstances and (ii) the material risks, including
any actual and reasonably foreseeable adverse consequences of the proposed course of
conduct.” The relevant circumstances could vary depending on the precise conditions specified
for the disclosure, the specific factual issues involved, and the scope of the representation, but
ordinarily would include a future change in the client’s capacity, the lawyer’s judgment at that
time that the client’s diminished capacity exposes the client to substantial physical or
psychological harm that the client is unable to recognize and/or prevent, and a consent that in
those circumstances the lawyer could disclose confidential information to the extent that the
lawyer reasonably believes is necessary to prevent the harm. The consent should disclose the
benefits of such a consent, which could include vindication of the client’s purposes, exposure of
wrongdoing by others, and the prevention of harm. And it should also disclose the risks,
including the risk that the lawyer’s reasonable beliefs concerning capacity or harm may
ultimately prove to be inaccurate, that sensitive information may become more broadly known,
and that disclosure may lead to litigation regarding the client’s capacity.
Second, the consent must be revocable at any time, so long as the client has the legal capacity
to revoke, and the right to revoke should be highlighted in the informed consent. Cf.
Restatement (Third) of the Law Governing Lawyers, section 122, comment f (consent to conflict
is revocable except to the extent it has been relied upon). In addition, the lawyer should not act
on the consent if the lawyer has reason to believe that the circumstances have changed, and
26
See Zador Corp. v. Kwan, (1995) 31 Cal.App.4th 1285 [7 Cal.Rptr.2d 754].
27
See Visa U.S.A, Inc. v. First Data Corp. (N.D. Cal. 2003) 241 F.Supp.2d 1100. The validity under
California law of more generally framed advance consents to adverse representation in unrelated
matters is contested and this opinion takes no view on that issue. Compare, Sheppard, Mullin, Richter &
Hampton, LLP v. J-M Manufacturing Company, Inc. (2018) 6 Cal.5th 59, 86 [237 Cal.Rptr.3d 424].
28
Delineating the details of the consent is beyond the scope of this opinion. Those details will vary
depending on the particulars of each case. Beyond the triggering events, the consent can also specify,
among other things, the steps required for the lawyer to conclude that incapacity exists, the nature,
severity, and imminence of harm required to justify disclosure, whether the lawyer is required to
attempt to contact the client before disclosing, and the persons or institutions to whom disclosure
should be made.
17
that the client, if informed of those circumstances, would not have given or would have
revoked the consent. Id. comment d.29
Assuming that the client’s advance consent complies with the foregoing standards, the ethical
case for allowing such an advanced consent is stronger than for the advance consents approved
in the decided cases. Like those consents, the consent is not open-ended—it specifies the
information to be disclosed, the circumstances in which disclosure is allowed, and the benefits
and risks of such disclosure. Unlike those consents, however, which expanded the lawyer’s
freedom to take action adverse to the client, this advance consent expands the lawyer’s ability
to protect the client from serious harm in specified circumstances where the client is powerless
to do so.30 To hold that such an advance consent could not be given would infringe on an
informed, competent client’s right to enlist the client’s lawyer as part of a coherent strategy to
protect against future harm.
Accordingly, in assisting a competent client to plan for potential future incapacity, a lawyer may
properly invite the client to consider an advance consent to disclosure that meets the above
standards, along with other means of addressing such incapacity, such as springing powers of
attorney and structured decision-making, and, if consistent with the client’s expressed interests
and the applicable standard of care, may recommend the use of such a consent.
Rule 1.6 does not require that informed consent to disclosure of confidential information be in
writing. It is evident, however, that it would be both prudent and the better practice to obtain
any advance consent for this purpose in writing and in a separate document. The client’s
interest is in having the consent be enforceable, absent revocation or changed circumstances,
and enforceability depends on proof of what was consented to, and of what was done to
ensure that the consent was informed. Given that any dispute about enforceability will arise in
the future, and only after the client’s capacity is contested, documenting the terms of the
consent and the lawyer’s disclosures in writing and including them in a separate document that
makes both the consent and the required disclosures more salient will increase the likelihood
that the consent will later be viewed as having been adequately informed. The client has a
further interest in the lawyer standing on solid professional ground in taking protective action
pursuant to the consent when the triggering conditions are met. That interest is also served by
29
For example, the client may have authorized disclosure to a particular family member whom the
client regarded as disinterested and reliable. If the lawyer now has reason to believe that the family
member is no longer disinterested and reliable, and that the client would not have authorized the
disclosure given those changed circumstances, the lawyer should not make the disclosure.
30
This opinion does not address whether a competent client could give advance informed written
consent to the lawyer personally initiating proceedings for the establishment of a conservatorship
where the lawyer reasonably believes that grounds for establishing a conservatorship exist and that
doing so is necessary to protect the client from harm. Because in such an action the lawyer would
nominally be directly adverse to the client, such a consent would necessarily involve not just informed
consent to disclosure and use of confidential information, but also informed written consent to formal
adversity under rule 1.7(a).
18
putting the consent in writing, since without such a writing no lawyer can be confident that a
subsequent finder of fact will conclude the lawyer acted properly. For all these reasons, a
lawyer whose client gives informed consent to the proposed disclosures should document that
consent in a separate writing.
C. Application of the Law to the Stated Facts
In Scenario 1, Lawyer may represent Client in opposing the establishment of a conservatorship,
even though Lawyer believes that the evidence justifies the establishment of a conservatorship
and that doing so would protect Client from substantial risks of harm. Client has expressed the
wish to oppose the request for a conservatorship. This is a decision that the law reserves to
Client, and Lawyer reasonably believes that Client has the capacity to make that decision and
that the decision, though imprudent, is consistent with Client’s expressed interest in personal
freedom, an interest that is especially salient given the restrictions on liberty that can result
from a conservatorship and the client’s right to be heard in opposition to those restrictions.
Lawyer has satisfied the duty to exercise independent professional judgment and give candid
advice by explaining the risks involved in Client’s chosen course and other reasonably available
alternatives that could mitigate those risks consistent with Client’s expressed objective. Client
has rejected that advice. Any concern that Lawyer has that Client’s decision may be imprudent
is mitigated by the fact that the family members seeking the conservatorship can be counted
upon to bring the potential harms to Client to the attention to the tribunal. (Rest.3d Law
Governing Lawyers, supra, § 24, com. c.)
In Scenario 2, Lawyer was initially concerned about the client’s capacity to make a will. On the
basis of further inquiries, conducted with Client’s consent, Lawyer has reasonably concluded
that Client lacks even the low level of capacity required for testamentary decisions and that
Client is subject to a substantial risk of undue influence. At a minimum, Lawyer’s duty at this
point is to provide Client with candid advice concerning Lawyer’s conclusions. If Lawyer believes
it may assist Client in understanding that advice to have others, whether experts or family
members, involved in communications between Lawyer and Client, Lawyer may involve such
persons in attorney-client communications, with Client’s informed consent to the extent
required. Should Client decide to accept Lawyer’s advice, Lawyer need not go further. Should
Client decline to accept Lawyer’s advice, Lawyer should decline to prepare the will. Lawyer’s
reasonable belief is that Client lacks the capacity to make a decision reflecting Client’s interest
and that Client’s preferred course would expose Client to the risk of exploitation. Given that
reasoned judgment, the duty of loyalty requires that Lawyer decline to prepare the new
testamentary instruments.31
31
To the extent that Lawyer entertained doubts about the client’s capacity prior to undertaking the
representation, Lawyer could also, before agreeing to the representation and with the prospective
client’s informed consent as necessary, have conducted a similar inquiry into the client’s capacity. If,
following such an inquiry, the lawyer concluded that the prospective client either lacked capacity to
form an attorney-client relationship or to make a will, the lawyer would then have been free to decline
the representation.
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In Scenario 3, Lawyer acted reasonably in seeking advice concerning Client’s capacity. Lawyer’s
retained consultant has now opined that Client does not have the capacity required for the
transaction that Client proposed. Lawyer has sought to deliver candid advice advising against
the transaction but has been unable to do so. Lawyer now reasonably believes that Client is
suffering from diminished capacity and that by reason of that incapacity, Client is threatened
with harm at the nephew’s hands that Client is unable to perceive or prevent. In these
circumstances, Lawyer is not required to accept the nephew’s representation that he is
authorized to act on behalf of the client. Lawyer may seek to continue to contact Client to
deliver appropriate advice. If that proves impossible or infeasible, however, Lawyer may be
powerless to prevent harm to Client, because California’s confidentiality rules do not permit the
disclosure of information about Client’s condition to third parties without Client’s informed
consent. In addition, California’s confidentiality and conflict of interest rules bar a lawyer from
initiating conservatorship proceedings without Client’s informed written consent. If Lawyer is
able to contact Client directly, and if Client, notwithstanding the cognitive deficits identified by
the consultant, can give informed consent, Lawyer may be able to disclose confidential
information to concerned relatives or other authorities. If not, then Lawyer may not go further.
In Scenario 4, Lawyer may ethically recommend to Client that Client consider giving advance
consent to Lawyer’s disclosure of client confidential information at a future time where Lawyer
reasonably believes that Client is incapacitated, that the incapacity exposes Client to harm, and
that the disclosure of the information is reasonably necessary to prevent that harm, provided
that such advice meets the standard of care and the consent meets the standards outlined in
section B.6., above. In particular, the consent must be fully informed and revocable at any time,
provided the client has the capacity to do so, should be in writing, and should be contained in a
separate document.
CONCLUSION
A lawyer for a client with diminished capacity should attempt, insofar as reasonably possible, to
preserve a normal attorney-client relationship with the client, including taking those steps
reasonably necessary to fulfil the lawyer’s duties of competence, communication,
confidentiality, loyalty, and nondiscrimination. In representing such a client, a lawyer must
sometimes make difficult judgments relating to the client’s capacity. Provided that such
judgments are informed and disinterested, they should not be viewed as unethical simply
because subsequent events prove them to have been mistaken. When the lawyer reasonably
believes that the client’s diminished capacity exposes the client to harm, the lawyer may seek
the client’s informed consent to take protective measures. If the client cannot or does not give
informed consent, the lawyer may be unable to protect the client against harm. A lawyer
representing a competent client who may later become incapacitated may propose to the client
that the client give advanced consent to protective disclosure in the event that such incapacity
occurs. If appropriately limited and informed, such a consent is ethically proper.
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