The Oklahoma Bar Journal August 2023

Comment [5] suggests protective measures, including consulting with family members, employing a reconsideration period, using dura ble powers of attorney, consulting professional services or Adult Protective Services. “Reasonably necessary” is generally the “least restrictive action under the circumstances.” 1 If there’s no less drastic option to protect the client’s interests, 1.14 (b) allows a lawyer to seek the appoint ment of a guardian to protect the client’s interests. If the requirements of 1.14 are met, a lawyer may seek the appointment of a guardian to protect the client’s interests despite the client’s disapproval. 2 However, the lawyer should seek appointment of a guardian “only when a client consistently demonstrates a lack of capacity to act in his or her own interests and it is unlikely that the client will be able to attain the req uisite mental capacity to assist in the proceedings in a reasonable time.” 3 When a decision has been made to seek a guardianship, a lawyer should not seek to be appointed as guardian except where “imme diate and irreparable harm will result from the slightest delay.” 4 Similarly, a lawyer normally should not represent a third party who seeks to be appointed guard ian for the client. 5 GUARDIAN AD LITEM , CONSERVATOR OR GUARDIAN

CONFIDENTIALITY UNDER 1.14 ORPC 1.14 (c) makes clear that “[i]nformation relating to the rep resentation of a client with dimin ished capacity is protected by Rule 1.6.” But “when taking protective action pursuant to paragraph (b), the lawyer is impliedly authorized under Rule 1.6(a) to reveal infor mation about the client, but only to the extent reasonably necessary to protect the client’s interests.” 6 Limited disclosure is appropriate in aid of a lawyer’s assessment of the client’s capacity and in a determination of how to proceed. Care should be taken, however, to reveal only that information “reasonably necessary to protect the client’s interests.” 7 Mr. Stevens is OBA ethics counsel. Have an ethics question? It’s a member benefit, and all inquiries are confidential. Contact him at richards@okbar.org or 405-416-7055. Ethics information is also online at www.okbar.org/ec. 1. ABA Formal Ethics Op. 96-404 (1996). 2. In re S.H. , 987 P.2d 735 (Alaska 1999). 3. Or. Ethics Op. 2005-159 (2005). 4. ABA Formal Ethics Op. 96-404 (1996); accord Colo. Ethics Op. 126 (2015). 5. ABA Formal Ethics Op. 96-404 (1996). But see In re Thetford , 574 S.W.3d 362 (Texas 2019), and R.I. Ethics Op. 2004-1(2004). 6. See , ABA Formal Ethics Op. 96-404. 7. Colo. Ethics Op. 126. ENDNOTES

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THE OKLAHOMA BAR JOURNAL