Ethics and Capacity


Earn one hour of Legal Ethics MCLE credit by reading the article below and answering the questions on the Self-Study MCLE test. Send your answers, along with a check ($30 per credit hour for CCCBA members / $45 per credit hour for non-members), to the address on the test form. Certificates are dated as the day the form is received.

What should a lawyer do when the client does not want to follow the lawyer’s advice? What if the client insists on a course of conduct that the lawyer is convinced is not in the client’s best interests?

The answers to these questions are even more difficult when the client is not a mature, reasonably objective adult, when the client is mentally impaired, or when the client is under extraordinary pressure, such as being involved in a criminal trial or a custody dispute. In many respects, these issues are among the most difficult lawyers ever have to face.

Think of the following situations:

  1. You represent a teenager who wants to resume overnight visits with her father, recently released from prison for child molestation—of the daughter.
  2. Your client is an 85-year-old widow. She has recently befriended her gardener. She calls and tells you she wants to change her will, leaving her house and all of her financial assets to the gardener. You know that her current will leaves everything to her two children.
  3. You represent a client on death row, who wants to die.
  4. You represent a distraught and depressed woman who insists on taking the family home in a divorce, even though you know she cannot afford the upkeep and could go bankrupt down the road.

It seems self-evident that the more trust the client has in the lawyer, the more likely the lawyer’s ability to persuade or dissuade, and thus avoid some of the “between Scylla and Charybdis” problems that arise with an impaired client. Of course, no matter how much the client trusts the lawyer, it’s not going to be enough all the time.

So we have to turn to the Rules of Professional Conduct. While the California Rules are woefully inadequate on the impaired client (there is no specific Rule), the ABA Model Rules are more helpful. Courts can look to the ABA Rules when there is no California Rule on point, e.g., People vs. Ballard (1980) 104 Cal. App.3d 757.

ABA Model Rule 1.2 describes settlement and the “objectives of representation” as matters for the client to decide, while the attorney decides other matters. It does not, however, address the question of to what extent the lawyer must follow the client’s stated choices, and when she or he can and should override the client’s wishes.

Consider, for example, the case of David Mason and his two competing attorneys, where filing his appeal took on a life-or-death significance, addressing the ultimate point of the representation itself. His attorney, Charles Marson, tried for nine years to get him out from under a death sentence. Meanwhile, David Mason was trying to get him fired, so he could waive his appellate rights and be executed. He had help in this endeavor—attorney Michael Brady.

Brady argued that he was just carrying out his client’s desire to end his life versus facing life imprisonment for his client’s murder of four elderly Oakland residents. Marson and others argued that with Mason’s history of mental illness, childhood abuse and attempted suicide, he was not competent to make a decision about his future.

On the morning of the execution, the San Francisco Chronicle reported about his attorney Michael Brady: “With the execution only moments away, Brady stood waiting for a signal from Mason to stop the execution and refile a federal appeal the inmate had chosen to withdraw in January. Prison officials and state prosecutors said they would honor any decision by Mason to pursue that appeal, even if he changed his mind while sitting in the execution chamber. But the signal never came.”[1]

Marson might have relied on ABA Model Rule 1.14 (a). It provides that when a client’s ability “to make adequately considered decisions” is impaired (whether because of minority, mental disability or for some other reason) the lawyer “shall, as far as possible, maintain a normal lawyer-client relationship with the client.”

But what does this mean in practice? What does “as far as possible” mean? Or what about, as in the case of Ted Kaczynski, the man convicted as the Unabomber, his two lawyers believed he was substantially impaired, but the court found him competent to stand trial? Who decides what is in his best interests, as he sees them?

The Bar Association of San Francisco Ethics Opinion 1999-2 provides guidance where the California Rules don’t tread. It holds that “an attorney who reasonably believes that a client is substantially unable to manage their own financial resources or resist fraud or undue influence, may, but is not required to, take protective action with respect to the client’s person and property.”

Such action may include recommending appointment of a trustee, conservator or guardian ad litem. The attorney has the implied authority to make limited disclosures necessary to achieve the best interests of the client.

This Opinion was written to clarify the attorney’s duties in light of other Ethics Opinions that would not allow an attorney to take action. San Diego Ethics Opinion 1978-1 had concluded that no conservatorship could be sought because it would reveal client confidences. It is true that our confidentiality rule has always been very strict. After the San Diego Opinion, the Rules of Professional Conduct were revised in 1989, but they did not address the impaired client situation.

The Committee on Professional Responsibility and Conduct (COPRAC) then issued Formal Opinion 1989-112, which concluded that seeking a conservatorship would be acting adverse to the client and would be a revelation of client secrets. In their view, the lawyer’s option would be to withdraw from the representation.

There is no explicit provision in Rule 3-700, which either permits or requires a member to withdraw from employment based on initiating a conservatorship.

However, under section (C) (1), if the client is engaging in conduct which renders it “unreasonably difficult” to carry out the representation effectively, and that same conduct leads the attorney to the conclusion that the client needs a conservator, withdrawal may be permitted under some circumstances. That is because the attorney must maintain the client’s confidence and trust.

The Bar Association of San Francisco Ethics Opinion argues that past Opinions hold form over substance, and that in their view it is not an all or nothing proposition. The attorney, for example, can hire a therapist, relative or other intermediary to facilitate communication with the client.

It holds that action can be taken but should be the least intrusive. I applaud the Bar Association of San Francisco for stepping into the foray and attempting to give guidance to attorneys, even if it is in contradiction to the wording of the Rules.

There are California cases that address how courts deal with a seriously impaired client;[2] In Re the Conservatorship of Rooney, Los Angeles Superior Court case No. 126970 (first filed 2011), in which the elderly former actor Mickey Rooney first placed himself under a conservatorship and then sued his stepson for elder abuse, breach of fiduciary duty and misappropriation.

The case is a textbook example of what can happen to elderly people when their will is overborne by others. Here, fortunately, Rooney was able to understand the benefits of a conservatorship and placed himself in the conservatorship for his own protection. The pleadings, available online, make for compelling reading.

In truth, though the State Bar can prosecute an attorney for seeking a conservatorship that the client might not want, I doubt that they would want to aggressively go after an attorney for getting the help that their client needs, as long as it was done in as limited a way as possible. They can and do exercise discretion on matters.

But don’t quote me on that.

Earn one hour of Legal Ethics MCLE credit by reading the article and answering the questions on the Self-Study MCLE test. Send your answers, along with a check ($30 per credit hour for CCCBA members / $45 per credit hour for non-members), to the address on the test form. Certificates are dated as the day the form is received.