A client with diminished capacity wants to appeal but refuses to sign the Notice of Appeal the statute requires, so the appeal will be dismissed. What should the lawyer do?

Plain-English summary

Opinion 13-03 addresses a lawyer caught between a client's stated wish to appeal and the client's refusal to sign the document the appeal requires. The lawyer had defended the client's parental rights in child-welfare proceedings; the client was found permanently criminally incompetent and was determined by the Division of Services for People with Disabilities to have diminished capacity. After the juvenile court terminated the client's parental rights, the client said on four occasions that she wanted to appeal but would refuse to sign anything. Utah Code Ann. § 78A-6-1109 requires the appellant's signature on a Notice of Appeal from a juvenile court order, and an unsigned notice is dismissed, costing the client the appeal.

The Committee frames the question through Rule 1.3 (diligence) and Rule 1.14 (clients with diminished capacity). Rule 1.14(a) directs the lawyer to maintain a normal client-lawyer relationship as far as reasonably possible, but the Committee finds that here, given the permanent incompetency and the client's refusal to take the step needed to achieve her own stated goal, a normal relationship does not exist. Under Rule 1.14(b), when the lawyer reasonably believes the client has diminished capacity, is at risk of substantial harm unless action is taken, and cannot adequately act in her own interest, the lawyer may take reasonably necessary protective action.

The Committee concludes that if the lawyer believes the client is at risk of substantial harm, the lawyer should take protective action, and treats exactly what to do as a strategic decision. It notes Rule 1.14's suggestion of seeking a guardian ad litem; if a guardian ad litem is appointed to take the ministerial step of signing the Notice of Appeal, the statute would be satisfied and the client's wishes respected. The Committee adds that it may also be appropriate to file the appeal without the client's signature and challenge the signature requirement as applied to the client. Rule 1.14(c) and Rule 1.6 protect information about the client, with implied authorization to reveal only what is reasonably necessary to protect the client's interests.

In practice

Under this opinion, when a client with diminished capacity refuses to take a necessary act (here, signing a statutorily required Notice of Appeal) to carry out her own goal, the lawyer should take protective action under Rule 1.14 if the lawyer believes the client is at risk of substantial harm and cannot adequately act in her own interest. Per the opinion, the specific step is a strategic decision, with Rule 1.14 suggesting a guardian ad litem (who could sign the notice) and the Committee also identifying the option of filing the appeal unsigned and challenging the requirement as applied. The opinion treats information about the client as protected by Rule 1.6, with implied authorization to disclose only as reasonably necessary. The opinion was issued in 2013; confirm the current text of Utah Rules 1.3, 1.6, and 1.14 and of Utah Code Ann. § 78A-6-1109 before relying on the specifics here.

Common questions

Q: What rule governs a lawyer's duty to a client with diminished capacity?

A: Rule 1.14. The opinion explains that Rule 1.14(a) requires the lawyer to maintain a normal client-lawyer relationship as far as reasonably possible, and Rule 1.14(b) permits reasonably necessary protective action when the client has diminished capacity, is at risk of substantial harm unless action is taken, and cannot adequately act in her own interest.

Q: The client wants to appeal but won't sign the required notice. What can the lawyer do?

A: Take protective action, per the opinion. The Committee notes Rule 1.14's suggestion of seeking a guardian ad litem, who could sign the Notice of Appeal so the statute is satisfied and the client's wish to appeal is respected, and observes that filing the appeal without the signature and challenging the requirement as applied may also be appropriate.

Q: Can the lawyer disclose information about the client when taking protective action?

A: Only as reasonably necessary. The opinion notes that under Rule 1.14(c), information about a client with diminished capacity is protected by Rule 1.6, and the lawyer is impliedly authorized to reveal information only to the extent reasonably necessary to protect the client's interests.

Background and rules framework

The opinion interprets Utah Rules of Professional Conduct 1.3 (diligence), 1.14 (client with diminished capacity), and 1.6 (confidentiality), which correspond to the ABA Model Rules of the same numbers. Rule 1.14(b) authorizes protective action, including consulting with persons or entities able to protect the client and, in appropriate cases, seeking a guardian ad litem, conservator, or guardian. The Committee uses the Rules' definition of "substantial" as "a material matter of clear and weighty importance" (Rule 1.0(m)). The procedural backdrop is Utah Code Ann. § 78A-6-1109, which requires an appellant's signature on a Notice of Appeal from a juvenile court order.

Citations and references

Rules of Professional Conduct:

• MR 1.3 / Utah RPC 1.3 (diligence)
• MR 1.6 / Utah RPC 1.6(a) (confidentiality of information)
• MR 1.14 / Utah RPC 1.14(a), (b), (c) (client with diminished capacity)

Statutes:

• Utah Code Ann. § 78A-6-1109 (signature required on a Notice of Appeal from a juvenile court order)

See also

• ABA Formal Op. 96-404: Client Under a Disability
• Alabama Ethics Op. 1995-06: Seeking a Guardian for a Client Under a Disability
• ABA Formal Op. 07-448: Appointed Counsel and a Person Who Declines Representation

Source

• Landing page: https://www.utahbar.org/ethics-opinions/2013-03/
• Original PDF: https://www.utahbar.org/wp-content/uploads/2022/12/2013-03.pdf

Original opinion text

Best-effort transcription from a two-column PDF; a character-encoding artifact in the Facts section has been corrected to its plain reading. The linked PDF is authoritative.

Opinion No. 13-03

Utah Ethics Opinion

Utah State Bar Ethics Advisory Opinion Committee

Issued September 11, 2013

ISSUE

1. Whether a lawyer violates her duty to diligently represent a client who wishes to appeal a juvenile court's order, but refuses to sign the Notice of Appeal (which will be dismissed without appellant's signature pursuant to statute) due to her diminished capacity.

OPINION

2. Under Rule 1.14, if the lawyer believes the client is at risk of substantial harm unless action is taken and cannot adequately act in the client's own interest, the lawyer should take reasonable steps to protect the client's interests.

FACTS

3. Lawyer has defended Client's parental rights in child welfare proceedings. Client has been found permanently criminally incompetent and was receiving extensive services through Division of Services for People with Disabilities (DSPD). DSPD determined that Client has diminished capacity. Lawyer has always been able to effectively communicate with Client and has defended Client's parental rights in accordance with her wishes. The State filed a Verified Petition for Termination of Parental Rights, and Lawyer represented Client at trial. On four occasions, at the beginning of trial, during trial, and after the Court ruled to terminate Client's parental rights, Lawyer advised Client of her right to an appeal and advised Client that she would be required to sign a Notice of Appeal. On all four occasions, Client indicated she would refuse to sign anything but wanted to appeal. Utah Code Ann. § 78A-6-1109 requires an appellant's signature on every Notice of Appeal from a juvenile court order. If the Notice of Appeal is submitted without signature, the appeal is dismissed and the appellant loses his or her right to the appeal. Lawyer filed a Motion for Extension of Time and an Affidavit of Diligence and awaits a response from the Court.

ANALYSIS

4. Rule 1.3 requires that lawyers "act with reasonable diligence and promptness in representing a client." Utah R. Prof. Conduct 1.3. Moreover, the Rules specifically address representation of clients with diminished capacity in Rule 1.14. The Rule states:

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

(b) When the lawyer reasonably believes that the client has diminished capacity, is at risk of substantial physical, financial or other harm unless action is taken and cannot adequately act in the client's own interest, the lawyer may take reasonably necessary protective action, including consulting with individuals or entities that have the ability to take action to protect the client and, in appropriate cases, seeking the appointment of a guardian ad litem, conservator or guardian.

(c) Information relating to the representation of a client with diminished capacity is protected by Rule 1.6. When taking protective action pursuant to paragraph (b), the lawyer is impliedly authorized under Rule 1.6(a) to reveal information about the client, but only to the extent reasonably necessary to protect the client's interests.

Utah R. Prof. Conduct 1.14. The Rules define the term "substantial" as "a material matter of clear and weighty importance." Utah R. Prof. Conduct 1.0(m).

5. Here, despite Lawyer's ability to effectively communicate with Client in the past, a normal client-lawyer relationship does not exist. Client has been found permanently criminally incompetent. Furthermore, Client has stated on four occasions that she would like to appeal the juvenile court's decision, but that she refuses to sign a Notice of Appeal. Pursuant to statute, in the absence of a signature on the Notice of Appeal, Client's appeal will be dismissed and Client will lose her right to appeal. If Lawyer believes Client is at risk of substantial harm, Lawyer should take protective action. The Committee believes it is a strategic decision concerning what exactly Lawyer should do to take such protective action, however the Committee notes that Rule 1.14 suggests the appointment of a guardian ad litem. If the Court appoints a guardian ad litem to take the ministerial step of signing the Notice of Appeal, the letter of the law would be satisfied and Client's wishes respected. It may also be appropriate for Lawyer to file the appeal without Client's signature and challenge the requirement as applied to Client.

CONCLUSION

6. If a client with diminished capacity refuses to take certain necessary acts to carry out the client's goal, the lawyer should take protective action.