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RULE 19-301.14. CLIENT WITH DIMINISHED CAPACITY (1.14)

West's Annotated Code of MarylandMaryland Rules

West's Annotated Code of Maryland
Maryland Rules
Title 19. Attorneys
Chapter 300. Maryland Attorneys' Rules of Professional Conduct
Client-Attorney Relationship [Rules 19-301.1 to 19-301.18]
MD Rules Attorneys, Rule 19-301.14
RULE 19-301.14. CLIENT WITH DIMINISHED CAPACITY (1.14)
(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 attorney shall, as far as reasonably possible, maintain a normal client-attorney relationship with the client.
(b) When the attorney 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 attorney 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 19-301.6 (1.6). When taking protective action pursuant to section (b) of this Rule, the attorney is impliedly authorized under Rule 19-301.6 (a) (1.6) to reveal information about the client, but only to the extent reasonably necessary to protect the client's interests.
COMMENT
[1] The normal client-attorney 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 suffers from a diminished mental capacity, however, maintaining the ordinary client-attorney relationship may not be possible in all respects. In particular, a severely incapacitated individual may have no power to make legally binding decisions. Nevertheless, to an increasing extent the law recognizes intermediate degrees of competence. Indeed, a client with diminished capacity often has the ability to understand, deliberate upon, and reach conclusions about matters affecting the client's own well-being. For example, it is recognized that some individuals of advanced age can be quite capable of handling routine financial matters while needing special legal protection concerning major transactions. In addition, 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. Consideration of and, when appropriate, deference to these opinions are especially important in cases involving children in Child In Need of Assistance (CINA) and related Termination of Parental Rights (TPR) and adoption proceedings. With respect to these categories of cases, the Maryland Foster Care Court Improvement Project has prepared Guidelines of Advocacy for Attorneys Representing Children in CINA and Related TPR and Adoption Proceedings. The Guidelines are included in an appendix to the Maryland Rules. Also included in an Appendix to the Maryland Rules are Maryland Guidelines for Practice for Court-Appointed Attorneys Representing Children in Cases Involving Child Custody or Child Access, developed by the Maryland Judicial Conference Committee on Family Law.
[2] The fact that a client suffers a disability does not diminish the attorney's obligation to treat the client with attention and respect. Even if the individual has a legal representative, the attorney should as far as possible accord the represented individual the status of client, particularly in maintaining communication.
[3] The client may wish to have family members or other individuals participate in discussions with the attorney. When necessary to assist in the representation, the presence of such individuals generally does not affect the applicability of the attorney-client evidentiary privilege. Nevertheless, the attorney must keep the client's interests foremost and, except for protective action authorized under section (b) of this Rule, must look to the client, and not family members, to make decisions on the client's behalf.
[4] If a legal representative has already been appointed for the client, the attorney should ordinarily look to the representative for decisions on behalf of the client. In matters involving a minor, whether the attorney should look to the parents as natural guardians may depend on the type of proceeding or matter in which the attorney is representing the minor. If the attorney represents the guardian as distinct from the ward, and is aware that the guardian is acting adversely to the ward's interest, the attorney may have an obligation to prevent or rectify the guardian's misconduct. See Rule 19-301.2 (d) (1.2).
Taking Protective Action--[5] If an attorney reasonably believes that a client is at risk of substantial physical, financial or other harm unless action is taken, and that a normal client-attorney relationship cannot be maintained as provided in section (a) of this Rule because the client lacks sufficient capacity to communicate or to make adequately considered decisions in connection with the representation, then section (b) of this Rule permits the attorney to take protective measures deemed necessary. Such measures could include: consulting with family members, delaying action if feasible to permit clarification or improvement of circumstances, using voluntary surrogate decision-making tools such as durable powers of attorney or consulting with support groups, professional services, adult-protective agencies or other individuals or entities that have the ability to protect the client. In taking any protective action, the attorney should be guided by such factors as the wishes and values of the client to the extent known, the client's best interests and the goals of intruding into the client's decision-making autonomy to the least extent feasible, maximizing client capacities and respecting the client's family and social connections.
[6] In determining the extent of the client's diminished capacity, the attorney should consider and balance such factors as: the client's ability to articulate reasoning leading to a decision; variability of state of mind and ability to appreciate consequences of a decision; the substantive fairness of a decision; and the consistency of a decision with the known long-term commitments and values of the client. In appropriate circumstances, the attorney may seek guidance from an appropriate diagnostician.
[7] If a legal representative has not been appointed, the attorney should consider whether appointment of a guardian ad litem, conservator or guardian is necessary to protect the client's interests. Thus, if a client with diminished capacity has substantial property that should be sold for the client's benefit, effective completion of the transaction may require appointment of a legal representative. In addition, rules of procedure in litigation sometimes provide that minors or individuals with diminished capacity must be represented by a guardian or next friend if they do not have a general guardian. In many circumstances, however, appointment of a legal representative may be more expensive or traumatic for the client than circumstances in fact require. Evaluation of such circumstances is a matter entrusted to the professional judgment of the attorney. In considering alternatives, however, the attorney should be aware of any law that requires the attorney to advocate the least restrictive action on behalf of the client.
Disclosure of the Client's Condition--[8] Disclosure of the client's diminished capacity could adversely affect the client's interests. For example, raising the question of diminished capacity could, in some circumstances, lead to proceedings for involuntary commitment. Information relating to the representation is protected by Rule 19-301.6 (1.6). Therefore, unless authorized to do so, the attorney may not disclose such information. When taking protective action pursuant to section (b) of this Rule, the attorney is impliedly authorized to make the necessary disclosures, even when the client directs the attorney to the contrary. Nevertheless, given the risks of disclosure, section (c) of this Rule limits what the attorney may disclose in consulting with other individuals or entities or seeking the appointment of a legal representative. At the very least, the attorney should determine whether it is likely that the person or entity consulted with will act adversely to the client's interests before discussing matters related to the client. The attorney's position in such cases is an unavoidably difficult one.
Emergency Legal Assistance--[9] In an emergency where the health, safety or a financial interest of an individual with seriously diminished capacity is threatened with imminent and irreparable harm, an attorney may take legal action on behalf of such an individual even though the individual is unable to establish a client-attorney relationship or to make or express considered judgments about the matter, when the individual or another acting in good faith on that individual's behalf has consulted with the attorney. Even in such an emergency, however, the attorney should not act unless the attorney reasonably believes that the individual has no other attorney, agent, or other representative available. The attorney should take legal action on behalf of the individual only to the extent reasonably necessary to maintain the status quo or otherwise avoid imminent and irreparable harm. An attorney who undertakes to represent a an individual in such an exigent situation has the same duties under these Rules as the attorney would with respect to a client.
[10] An attorney who acts on behalf of an individual with seriously diminished capacity in an emergency should keep the confidences of the individual as if dealing with a client, disclosing them only to the extent necessary to accomplish the intended protective action. The attorney should disclose to any tribunal involved and to any other attorney involved the nature of his or her relationship with the individual. The attorney should take steps to regularize the relationship or implement other protective solutions as soon as possible.
Model Rules Comparison: Rule 19-301.14 (1.14) is substantially similar to the language of the Ethics 2000 Amendments to the ABA Model Rules of Professional Conduct, with the exception of retaining elements of existing Maryland language in Comment [1] and further revising Comments [5] and [10].

Credits

[Adopted June 6, 2016, eff. July 1, 2016.]
MD R Attorneys, Rule 19-301.14, MD R ATTORNEYS Rule 19-301.14
Current with amendments received through December 15, 2019.
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