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2008 Edition: Tennessee Rules of Professional Conduct Download Rules as a PDF | Return to Rules home page |
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RULE 1.14
CLIENT UNDER A DISABILITY (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. COMMENTS [1] The normal client-lawyer relationship is based on the assumption that the client, when properly advised and assisted, is capable of making decisions about important matters. When the client is a minor or has a mental disorder or disability, however, maintaining the ordinary client-lawyer relationship may not be possible in all respects. In particular, an incapacitated person may have no power to make legally binding decisions. Nevertheless, a client lacking legal competence often has the ability to understand, deliberate upon, and reach conclusions about matters affecting the client’s own well-being. Furthermore, to an increasing extent the law recognizes intermediate degrees of competence. For example, children as young as five or six years of age, and certainly those of ten or twelve, are regarded as having opinions that are entitled to weight in legal proceedings concerning their custody. So also, it is recognized that some persons of advanced age can be quite capable of handling routine financial matters while needing special legal protection concerning major transactions. [2] The fact that a client has a disability does not diminish the lawyer’s obligation to treat the client with attention and respect. If the person has no guardian or legal representative, the lawyer often must act as a de facto guardian. Even if the person does have a legal representative, the lawyer should as far as possible accord the represented person the status of client, particularly in maintaining communication. [3] If a legal representative has already been appointed for the client, the lawyer should ordinarily look to the representative for decisions on behalf of the client. If a legal representative has not been appointed, the lawyer should see to such an appointment where it would serve the client’s best interests. Thus, if a disabled client has substantial property that should be sold for the client’s benefit, effective completion of the transaction ordinarily requires appointment of a legal representative. In many circumstances, however, appointment of a legal representative may be expensive or traumatic for the client. Evaluation of these considerations is a matter of professional judgment on the lawyer’s part. [4] If the lawyer represents the guardian as distinct from the ward, and is aware that the Disclosure of the Client’s Condition [5] Rules of procedure in litigation generally provide that minors or persons having a mental disability shall be represented by a guardian or next friend if they do not have a general guardian. However, disclosure of the client’s disability can adversely affect the client’s interests. For example, raising the question of disability could, in some circumstances, lead to proceedings for involuntary commitment. The lawyer’s position in such cases is an unavoidably difficult one. The lawyer may seek guidance from an appropriate diagnostician. Legal Assistance [6] If the health, safety, or financial interest of a person under a disability is threatened with imminent and irreparable harm, a lawyer may take legal action on behalf of such a person even though the person is unable to establish a client-lawyer relationship or is unable to express or make considered judgments about the matter, when the disabled person or another acting in good faith on the person’s behalf has consulted the lawyer. Even in such a situation, however, the lawyer should not act unless the lawyer reasonably believes that the person has no other lawyer, agent, or other representative available. The lawyer should take legal action on behalf of the disabled person only to the extent reasonably necessary to maintain the status quo or otherwise avoid imminent and irreparable harm. A lawyer who undertakes to represent a person in such an exigent situation has the same duties under these Rules as the lawyer would with respect to a client. [7] A lawyer who acts on behalf of a disabled person threatened with imminent and irreparable harm should keep the confidences of the disabled person as if dealing with a client, disclosing them only to the extent necessary to accomplish the intended protective action. The lawyer should disclose to any tribunal involved and to any other counsel involved the nature of his or her relationship with the disabled person. The lawyer should take steps to regularize the relationship or implement other protective solutions as soon as possible. Normally, a lawyer would not seek compensation for such actions taken on behalf of a disabled person. DEFINITIONAL CROSS-REFERENCES “Reasonably” See RPC 1.0(j) |
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