How should a lawyer handle settlement decisions when she doubts a client’s capacity to decide?

Plain-English summary

A divorce lawyer believed her client’s alcohol dependence might impair the client’s decision to accept a settlement and leave a potentially helpful issue unraised. The client declined treatment and did not want the issue disclosed. The committee analyzed the question under Rule 1.14 and its comments.

The committee said the lawyer should first decide whether she reasonably believes the client can make adequately considered decisions. If the lawyer is uncertain, the opinion calls for consultation with an appropriate professional. Before that consultation, the lawyer must seek the client’s consent to disclose confidences. If consent is unavailable, or the lawyer believes the client cannot consent, the lawyer may disclose only what is reasonably needed for diagnosis. The opinion also discusses considering whether a legal representative is needed.

Currency note

This opinion was issued in 2000, before North Dakota's 2006 revisions to its Rules of Professional Conduct. The later North Dakota Opinion 06-05 states: “On August 1, 2006, material changes to N.D.R. Prof. Conduct 1.10(a) will take effect.” 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 Treat this page as historical context, not current guidance.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, deadline, or requirement.

Common questions

Q: May the client decide after being advised if the lawyer reasonably believes she has capacity?

A: Yes. The opinion says that if the lawyer reasonably believes the client can make adequately considered decisions, “the client may do so and the inquiry ends.”

Q: What if the lawyer remains unsure about capacity?

A: The conclusion says the lawyer needs to consult a professional who can make that determination.

Q: Can confidential information be disclosed without consent for diagnosis?

A: The opinion permits sufficient disclosure for diagnosis if there is no consent or the lawyer deems the client unable to consent.

Background and rules framework

The committee applied North Dakota Rule 1.14 and its comments on maintaining a normal client relationship and possible appointment of a representative. It discussed Rule 1.6 as limiting disclosures and referred to prior Opinion LO 88-03.

Citations and references

Rules of Professional Conduct:

• North Dakota Rule 1.14.
• North Dakota Rule 1.6.

Other opinions cited:

• North Dakota Opinion LO 88-03, cited for guidance on client decision making.

See also

• ND Ethics Op. 1988-03: client capacity and settlement

Source

• Landing page: https://www.sband.org/page/ethics_opinions
• Original PDF: https://web.archive.org/web/20250000000000id_/https://www.sband.org/resource/resmgr/docs/for_lawyers/00-06.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.
STATE BAR ASSOCIATION OF NORTH DAKOTA ETHICS COMMITTEE Opinion No. 00-06
June 28, 2000

The Ethics Committee has been asked to render its opinion as to the

ethical responsibilities of an attorney who questions her client’s competence to

accept an offer the attorney views as inequitable or to waive presentation of an

issue that would support a better result.

FACTS

The requesting attorney represents a spouse in a divorce action. The

attorney believes her client to be alcohol dependent, in part, as a response to the

client’s spouse’s conduct. The attorney further believes the addiction to be an

important factor in support of her claim for spousal support. The client refuses to

allow the attorney to raise the issue of the addiction and also is willing to accept

an offer the attorney views as inadequate. The attorney has urged the client to

seek chemical dependence treatment or counseling. The client has declined.

The attorney has explained to the client the potential impact of her position on

the outcome and the applicable marital dissolution law. The attorney believes the

client will accept an offer contrary to her best interest rather than to disclose her

addiction or to face the prospects of trial.

The question then becomes whether the client is able to make the

decision to waive property and support rights, or to refrain from raising issues

which the attorney believes would enhance the client’s position in the dissolution.

DISCUSSION

The answer lies within North Dakota Rules of Professional Conduct 1.14

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and the comments. For guidance also see the previously issued Opinion LO 88-

03.

RPC Rule 1.14 provides:

When a client's ability to make adequately considered decisions in connection with the representation is impaired, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client.

The comments parse this obligation by first defining a normal client relationship.

A normal client-lawyer relationship exists in those situations where the client, wh en properly advised and assisted, is capable of making or communicating responsible decisions concerning the client's person or affairs.

RPC Rule 1.14.

If the attorney reasonably believes the client has the ability to make

adequately considered decisions, the client may do so and the inquiry ends. On

the other hand the comments to the rule suggest that if the attorney believes the

client is not, or may not be able, the attorney ethically must go further.

First the attorney needs to consider whether, in her professional judgment,

a legal representative needs to be appointed to serve the best interest of the

client, or is necessary to complete the representation. If the attorney is uncertain

about the extent of the disability, the attorney needs to seek assistance to make

that determination.

Doing so places the attorney between the obligation to determine the

nature of the disability and the prohibition on revealing client confidences. The

comments to Rule 1.14 of the North Dakota Rules of Professional Conduct solve

the dilemma by providing:

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In those situations where a legal representative has not been appointed but in the lawyer's professional judgment such an appointment would serve the client's best interests, or is in fact necessary for the effective completion of a transaction involving the client's property, the lawyer should seek to have a legal representative appointed to act in behalf of the client. The nature and extent of the client's disability may be disclosed by the lawyer to the extent the lawyer reasonably believes necessary to obtain the appointment of a legal representative.

When considering the nature and extent of a client's disability and whether or not disclosure of the client's condition is necessary in the advancement of the client's interests, a lawyer may consult with an appropriate diagnostician.

The attorney should first seek the client’s consent to disclose confidential

information being mindful that if the client is impaired, she may not be able to

give valid consent. Even without consent, the client’s disability may be disclosed

to a professional, however, for the purpose of determining the nature and extent

of the disability. The extent of the disclosure must be limited to that reasonably

necessary to the purpose. North Dakota Rules of Professional Conduct, Rule 1.6.

CONCLUSION

The Committee concludes that the attorney needs first to establish

whether she reasonably believes the client to be able to make the requisite

decisions. If she is unsure, she needs to consult a professional who can make

that determination. Prior to the consultation, she needs to solicit the client’s

consent to reveal confidences to the diagnostician. If there is no consent, or she

deems the client unable to consent, she may reveal sufficient confidences for the

diagnosis.

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This opinion is provided pursuant to Rule 1.2(b) of the North Dakota Rules

for Lawyer Discipline, which states:

A lawyer who acts with good faith and reasonable reliance on a written opinion or advisory letter of the ethics committee of the association is not subject to sanction for violation of the North Dakota Rules of Professional Conduct as to the conduct that is the subject of the opinion or advisory letter.

This opinion was drafted by Sherry Mills Moore and unanimously

approved by the Ethics Committee on June , 2000.

_______

Mark Hansen, Chair

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