What are a Colorado lawyer's duties when an adult client seems unable to make adequately considered decisions?

Plain-English summary

Opinion 126 addresses the ethical issues that arise when a lawyer believes an adult client's ability to make adequately considered decisions about the representation is diminished (for reasons other than minority). The Committee anchors the analysis in Rule 1.14, which contains one mandatory duty: under Rule 1.14(a), when a client's capacity to make adequately considered decisions is diminished, the lawyer must, as far as reasonably possible, maintain a normal client-lawyer relationship. That duty persists even if a guardian has been appointed; the lawyer must continue to treat the client with attention and respect, communicate, and follow the client's directions as far as possible, and may not act merely as an arm of the court or substitute the lawyer's view of the client's "best interests" for the client's own decisions.

On assessing capacity, the opinion stresses that the relevant capacity is the client's ability to make adequately considered decisions about the representation, which depends on the complexity of the issue, so a client may have capacity as to some decisions but not others. A client's merely imprudent or unwise decision does not, by itself, justify protective action. The lawyer may consider the Comment [6] factors (the client's ability to articulate reasoning, variability of state of mind, ability to appreciate consequences, substantive fairness of the decision, and consistency with the client's known long-term values) and may seek guidance from an appropriate diagnostician, disclosing only information pertinent to the capacity assessment and taking care that disclosed information is not used against the client.

On protective action, Rule 1.14(b) is discretionary but has three predicates the lawyer must reasonably believe: that the client has diminished capacity, faces a risk of substantial physical, financial, or other harm absent action, and cannot adequately act in their own interest. Any protective action must be reasonably necessary, guided by the client's wishes and values and best interests, and must intrude on the client's decision-making autonomy to the least extent feasible (ranging from simpler, repeated advice, to involving trusted family, to, in more severe cases, seeking a guardian ad litem or conservator as a last resort). Under Rule 1.14(c) and Rule 1.6(a), the lawyer taking protective action is impliedly authorized to disclose confidential information, even over the client's objection, but only to the extent reasonably necessary, and the opinion cautions that disclosing a client's diminished capacity can itself harm the client. Finally, when the lawyer pursues protective action against the client's directions, the lawyer's interests may become adverse to the client's, creating a conflict under Rule 1.7(a)(2) that, with Rule 1.16(a), may require withdrawal; the opinion notes the difficult consequence that withdrawal can leave a diminished-capacity client without effective counsel and possibly unable to retain new counsel.

In practice

The opinion holds that, under the Colorado rules as they stood at the time of the opinion, the lawyer's one firm duty is to maintain a normal client-lawyer relationship as far as reasonably possible (Rule 1.14(a)), and that protective action is discretionary and tightly bounded. Per the opinion, before taking protective action the lawyer must reasonably believe all three Rule 1.14(b) predicates are met, must choose the least-intrusive effective measure, must consult the client and respect the client's values, and may disclose confidential information only to the extent reasonably necessary under Rule 1.14(c) and Rule 1.6(a). The opinion identifies the central tension: protective action contrary to the client's wishes can make the lawyer's interests adverse to the client's, triggering a Rule 1.7(a)(2) conflict and possible withdrawal under Rule 1.16(a), which itself can harm the client, so the lawyer should weigh those consequences before acting. The opinion also advises a lawyer not to serve as the client's own guardian except in the most exigent circumstances and not to represent a third party petitioning for guardianship over the lawyer's client.

Common questions

Q: My elderly client keeps changing the will depending on which child brings her in. What can I do?

A: The opinion advises maintaining a normal relationship and assessing capacity: meeting the client alone, away from the children, discussing concerns, and, for example, recommending a physician's written opinion on capacity to keep in the file; a merely unwise decision does not by itself justify protective action.

Q: When may I take "protective action" for a client?

A: Only when you reasonably believe the client has diminished capacity, faces substantial harm absent action, and cannot adequately act in their own interest. The opinion requires the action to be reasonably necessary and to intrude on the client's autonomy as little as feasible.

Q: Can I disclose my client's mental condition to get help?

A: Only to the extent reasonably necessary. The opinion concludes that under Rules 1.14(c) and 1.6(a) the lawyer is impliedly authorized to disclose, even over the client's objection, but must limit the disclosure and ensure it is not used against the client's interests.

Q: Does seeking a guardian against my client's wishes create a conflict?

A: It can. The opinion concludes that protective action contrary to the client's directions may make the lawyer's interests adverse to the client's, creating a Rule 1.7(a)(2) conflict that, with Rule 1.16(a), may require withdrawal.

Background and rules framework

The opinion interprets Colo. RPC 1.14 (client with diminished capacity), including its mandatory 1.14(a) duty, discretionary 1.14(b) protective action, and 1.14(c) limited-disclosure authority, read with Rule 1.6(a) (confidentiality and implied authorization), Rule 1.2(a) (client decisions) and Comment [4], Rule 1.0(e) (informed consent), Rule 1.18 (prospective clients), Rule 1.7(a)(2) (material-limitation conflict), and Rule 1.16(a) (mandatory withdrawal). It relies on ABA Formal Op. 96-404 and the Restatement (Third) of the Law Governing Lawyers, and surveys numerous state authorities and Colorado guardianship statutes.

Citations and references

Rules of Professional Conduct:

• Colo. RPC 1.14 / Model Rule 1.14 (client with diminished capacity; 1.14(a), (b), (c))
• Colo. RPC 1.6(a) / Model Rule 1.6 (confidentiality; implied authorization)
• Colo. RPC 1.2(a) and Comment [4] / Model Rule 1.2 (allocation of authority)
• Colo. RPC 1.7(a)(2) and 1.16(a) / Model Rules 1.7, 1.16 (material-limitation conflict; mandatory withdrawal)
• Colo. RPC 1.0(e), 1.18 (informed consent; prospective clients)

Cases:

• In re Marriage of Sorensen, 166 P.3d 254 (Colo. App. 2007), Rule 1.14 permits seeking a guardian ad litem when the lawyer reasonably believes the client cannot act in their own interest

Other opinions cited:

• ABA Formal Op. 96-404 (1996): client under a disability
• Or. State Bar Formal Op. 2005-159 (2005); N.Y.C. Bar Formal Op. 1997-2; and numerous other state authorities

See also

• CA Bar Op. 2021-207: Clients With Diminished Capacity
• ABA Formal Op. 96-404: Client Under a Disability
• IL Bar Op. 20-07: When a Client Becomes Impaired During Representation

Source

• Landing page: https://www.cobar.org/ethicsopinions
• Original PDF: https://www.cobar.org/Portals/COBAR/repository/ethicsOpinions/FormalEthicsOpinion_126.pdf