“A client who is making decisions that the lawyer considers to be ill-considered is not necessarily unable to act in his own interest, and the lawyer should not seek protective action merely to protect the client from what the lawyer believes are errors in judgment. In fact, ABA Formal Ethics Opinion 96-404 states: Poor judgment on the part of the client alone shouldn’t trigger the protective action sought by IRPC 1.14. The consistency of a decision with the known long-term commitments and values of the client.Ĭlients, however, may make foolish or impulsive demands or decisions aside from any diminished capacity.The substantive fairness of a decision.The client’s ability to articulate reasoning leading to a decision, variability of state of mind, and ability to appreciate consequences of a decision.This triggers the circular logic definition of reasonableness under IRPC 1.0(i), “ ‘Reasonable belief’ or ‘reasonably believes’ when used in reference to a lawyer denotes that the lawyer believes the matter in question and that the circumstances are such that the belief is reasonable.” But this offers no help when it comes to what behaviors to look for in your client.įortunately, when you dig deeper into the comments of IRPC 1.14, you find Comment 6, which provides some guiding factors to “consider and balance” in identifying and evaluating such circumstances. Part (b) of IRPC 1.14 invokes the reasonableness standard: “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 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.” It’s one thing if a client discloses their condition to the lawyer, but what if the lawyer notices the change themselves, as is often the case? Are there protective measures that a lawyer should or must take while meeting their ethical obligations?Īs IRPC 1.14(a) directs, a lawyer “shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client” when a client’s capacity is diminished.What impacts can a client’s cognitive decline have on the lawyer-client relationship and how legal services are delivered?.How might a lawyer properly assess their client’s apparent diminished capacity?.Nevertheless, the Illinois Rules of Professional Conduct (IRPC) demand that lawyers keep client confidence ( IRPC 1.6) while maintaining a normal client-lawyer relationship ( IRPC 1.14(a)).įortunately, the IRPC provide lawyers with guidance on how to properly maintain the attorney-client relationship under these circumstances while staying within the boundaries of our ethical obligations. Someone showing signs of diminished capacity may be experiencing acute symptoms, while others may be encountering a chronic and eventually debilitating condition impacting one’s mental and physical functioning.įew lawyers are medical professionals, qualified to make a diagnosis, let alone properly spot the signs of true cognitive decline. The Alzheimer’s Association predicts that 12.7 million Americans 65 and older (almost 1 in 6) will have Alzheimer’s by 2050. And as our population ages, the chances that a lawyer may interact with a client with cognitive decline may increase too. November is Alzheimer’s Awareness Month, a time when we increase awareness of Alzheimer’s disease and the more than 6.2 million Americans living with it.
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