My client has a mental disability. How do I handle the representation, and when should I seek a guardian?

Plain-English summary

The inquiring attorney sought guidance regarding the representation of a client under a mental disability.

The panel advised that Rule 1.14 governs the attorney's concern when a client has a disability. The panel quoted the rule: under subsection (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 some other reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client; under subsection (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.

Applying the rule, the panel took the position that the attorney should, as far as reasonably possible, maintain a normal client-lawyer relationship with the client. If the client does not have a guardian or legal representative, the attorney may have to act as a de facto guardian, as described in the notes to Rule 1.14. If the attorney believes, to the extent reasonably possible, that the client cannot adequately act in the client's own best interest, then the attorney should have a legal representative appointed to serve the client's best interest.

Currency note

This opinion was issued in 1992, after the Rhode Island Supreme Court adopted the Model Rules of Professional Conduct effective November 15, 1988, and it applies Rule 1.14 as originally adopted (then titled for a client "under a disability"). The Rhode Island Supreme Court later revised the Rules of Professional Conduct in 2007 as part of the nationwide Ethics 2000 process, which amended Rule 1.14 (now framed in terms of a 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 Treat this page as historical context, not current guidance.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: How should I treat a client with a mental disability?

A: Per the opinion, as far as reasonably possible, maintain a normal client-lawyer relationship with the client.

Q: When may I seek a guardian or protective action?

A: Per the opinion, only when the lawyer reasonably believes the client cannot adequately act in the client's own interest.

Q: What if the client has no guardian or legal representative?

A: Per the opinion, the attorney may have to act as a de facto guardian, as described in the notes to Rule 1.14, and should have a legal representative appointed if the client cannot adequately act in the client's own best interest.

Background and rules framework

The opinion applies Rhode Island Rule 1.14 (client under a disability), corresponding to Model Rule 1.14 (client with diminished capacity). Rule 1.14(a) directs the lawyer to keep as normal a client-lawyer relationship as reasonably possible, and Rule 1.14(b) permits seeking a guardian or other protective action only when the lawyer reasonably believes the client cannot adequately act in the client's own interest. The panel tracked those provisions and pointed to the rule's notes on acting as a de facto guardian where no representative exists.

Citations and references

Rules of Professional Conduct:

• MR 1.14 (client with diminished capacity)
• RI RPC 1.14

Statutes:

• None cited.

Cases:

• None cited.

Other opinions cited:

• None cited.

See also

• RI EAP Op. 2007-06: The Proper Course of Conduct for a Client Under a Disability
• RI EAP Op. 91-65: A Guardian's Questionable Withdrawals: Seek an Explanation, Then Withdraw
• RI EAP Op. 91-66: A Minor's Settlement After Placement in Foster Care

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%2092-16.pdf

Original opinion text

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

DIGEST OF ETHICS ADVISORY PANEL
Opinion #92-16, Request #227
Issued April 15, 1992

An attorney seeks Panel advice regarding the representation of a client under a mental disability. The Panel advises that Rule 1.14 of the Code of Professional Responsibility governs the attorney's concern when a client has a disability. The Rule 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 Panel is of the opinion that the attorney should, as far as reasonably possible, maintain a normal client-lawyer relationship with the client. If the client does not have a guardian, or legal representative, the attorney may have to act as a de facto guardian, which is set forth in the notes to Rule 1.14. Furthermore, if the attorney believes to the extent that it is reasonably possible, that the client cannot adequately act in his/her own best interest, then the attorney should have a legal representative appointed to serve the client's best interest.