The Oklahoma Bar Journal August 2023

E thics & P rofessional R esponsibility

Diminished Capacity: Rule 1.14 By Richard Stevens

and the lawyer should not seek protective action merely to protect the client from what the lawyer believes are errors in judgment.”

disregarding the client’s wishes, or presenting evidence against the client.” A lawyer may seek the advice of others to assess the client’s capac ity. ABA Formal Ethics Op. 96-404 (1996) suggests, “[t]here may also be circumstances where the lawyer will wish to consult with the client’s family or other interested persons who are in a position to aid in the lawyer’s assessment of the client’s capacity as well as in the decision of how to proceed.” Rule 1.14 Comment [6] suggests that a lawyer may seek guidance from an appropriate professional to aid in the determination of capacity. But ABA 404 also recognizes that “[a] client who is making decisions that the lawyer considers to be ill- considered is not necessarily unable to act in his own interest,

LAWYERS OFTEN ARE CALLED upon to deal with clients who have a diminished capacity. ORPC 1.14(a) defines diminished capacity as: (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 ... NORMAL CLIENT-LAWYER RELATIONSHIP When a lawyer realizes a client has a diminished capacity, the rule requires that “the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client.” Comment [1] seeks to make clear that: [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. Colorado Formal Ethics Opinion 126 (2015) describes the lawyer’s duty to maintain a nor mal client-lawyer relationship as precluding “a lawyer from acting solely as an arm of the court, using the lawyer’s assessment of the ‘best interests’ of the client to justify waiving the client’s rights without consultation, divulging the client’s confidences,

TAKING PROTECTIVE ACTION ORPC 1.14 (b) provides:

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 con sulting with individuals or enti ties 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.

72 | AUGUST 2023

THE OKLAHOMA BAR JOURNAL