Must a lawyer who thinks a client is mentally disabled seek a guardian, and must the lawyer tell the client about a confidential affidavit?

Plain-English summary

The committee addressed an attorney who believes her client is mentally disabled. It concluded that the Code of Professional Responsibility did not obligate the attorney to petition the court for a committee or other personal representative, but that the attorney was entitled to do so if she deemed it in the client's best interest.

The committee further concluded that where the attorney received information by affidavit and the affiant asked that it not be disclosed to the client, the attorney was nonetheless obligated to advise her client that such an affidavit exists. It cited EC 7-12, LE Op. 463, and DR 6-101(D).

Currency note

This opinion was issued in 1984, under Virginia's former Code of Professional Responsibility, before the Virginia State Bar's adoption of the Rules of Professional Conduct effective January 1, 2000. The committee note records that current Rule 1.14 provides guidance to lawyers representing clients under a disability. 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 Treat this page as historical context, not current guidance.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 mentioned here.

Common questions

Q: Must a lawyer seek a guardian for a client she believes is mentally disabled?

A: Under this 1984 opinion, no; the committee concluded the lawyer was not obligated to petition for a committee, though she could if she deemed it in the client's best interest.

Q: Can a lawyer keep a confidential affidavit from the client?

A: No. The committee concluded the lawyer must advise the client that the affidavit exists, even though the affiant asked that it not be disclosed to the client.

Q: What current rule governs representing a client under a disability?

A: The committee note states that current Rule 1.14 provides guidance to lawyers representing clients under a disability.

Background and rules framework

The opinion applies the former Code's EC 7-12 and DR 6-101(D) to a lawyer representing a client of doubtful capacity, separating the discretionary step of seeking a personal representative from the lawyer's duty to keep the client informed about a material affidavit. The committee note maps the question onto current Virginia Rule 1.14, corresponding to ABA Model Rule 1.14 on a client with diminished capacity.

Citations and references

Rules of Professional Conduct:

• EC 7-12 (former Code; representing a client under a disability)
• DR 6-101(D) (former Code; keeping a client informed)
• Virginia Rule 1.14 / ABA Model Rule 1.14 (client with diminished capacity)

Other opinions cited:

• Virginia LE Op. 463

See also

• VA LEO 1769: A Guardianship Petition Against a Current Client
• VA LEO 1816: A Suicidal Capital Client Refusing a Defense

Source

• Landing page: https://vsb.org/Site/about/rules-regulations/leo-opinions.aspx
• Original PDF: https://www.vsb.org/common/Uploaded%20files/LEOs/0570.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

LEGAL ETHICS OPINION 570

MENTALLY INCOMPETENT CLIENT/ APPOINTMENT OF COMMITTEE/ CONFIDENTIAL INFORMATION.

An attorney who believes that her client is mentally disabled is not obligated by the Code of Professional Responsibility to petition the court for a committee or other personal representative. The attorney is entitled to do so however, if she deems it to be in the best interest of her client.

When the attorney has received information by affidavit which the affiant has asked not be disclosed to the client, the attorney is none the less under an obligation to advise her client that such affidavit exists. [EC:7-12, LE Op. 463 and DR:6-101(D)]

Committee Opinion
April 20, 1984

Legal Ethics Committee Notes. – Rule 1.14 provides guidance to lawyers representing clients under a disability.