What are the ethical obligations of a California lawyer for a client with diminished mental capacity?  The ethics committee of the State Bar of California answers this key question in draft Formal Opinion No. 13-0002, with public comment due by August 24, 2021.

While all lawyers may represent clients who have questionable capacity, the situation arises with frequency and urgency for estate planning attorneys.  The opinion interprets the California Rules of Professional Conduct as amended in 2018.  Along with the updated ethics guide recently published by the Trusts and Estates Section of the California Lawyers Association, the opinion will provide key guidance to lawyers navigating their ethical duties.

How Did We Get Here?

When the California Supreme Court approved the revamped Rules of Professional Conduct in 2018, the court rejected proposed rule 1.14 that aimed to reconcile the approach set forth in the American Bar Association’s Model Rule of Professional Conduct 1.14 with California’s especially strong protection of attorney-client confidentiality.  The court did not explain its denial of the proposed rule.

To help fill the void, the State Bar’s Standing Committee on Professional Responsibility and Conduct (COPRAC) has issued Formal Opinion Interim No. 13-0002.  Three of the four scenarios in the draft opinion arise in the probate law arena.  We summarize Scenarios 1, 2 and 4 below.  California lawyers should review the opinion for its discussion of the various governing rules.

The opinion includes a broad overview of the statutes governing mental capacity, though it could be more nuanced in approaching the subject of “testamentary capacity.”  Notably, under Andersen v. Hunt (2011) 196 Cal.App.4th 722, two different capacity standards may apply to trust instruments.

Scenario 1: Client Seeks (Unwisely) to Oppose Conservatorship

The first scenario involves Client who suffered a brain injury leading to mental function changes, including episodes of mania and an increase in risky personal behavior.  Client’s relatives say they plan to seek a conservatorship in a California probate court.  Lawyer carefully evaluates Client (with help from a diagnostician and a friend of Client) and reasonably believes that a conservatorship indeed would protect Client from substantial risks of harm.  Client, however, rejects Lawyer’s advice and wants oppose the conservatorship.  May Lawyer represent client in such opposition?

Yes, says COPRAC.  If Lawyer reasonably believes that Client has sufficient mental capacity to decide to oppose the conservatorship, Lawyer can assert Client’s right to be heard in opposition.  Conservatorships restrict civil liberties so Client should be allowed to seek to retain personal freedom.  “Any concern that Lawyer has that Client’s decision may be imprudent is mitigated by the fact that the family members seeking the conservatorship can be counted upon to bring the potential harms to Client to the attention of the tribunal [i.e., the probate court].”

Scenario 2: Impaired Client Wants to Update Estate Plan to Disinherit Children

Lawyer has represented Client for many years including as to the preparation of Client’s initial estate plan.  Lawyer has noticed signs of Client’s diminished mental capacity.  Client now wants to disinherit Client’s children in favor of a young companion who has moved in with Client.  After reasonable inquiry, Lawyer reasonably believes that Client lacks testamentary capacity and that Client is at substantial risk of undue influence.  May Lawyer properly decline to prepare the estate planning revision?

Yes again.  Lawyer should provide Client with candid advice regarding Lawyer’s conclusions and concerns, but Lawyer may loop in family members only if Client has provided (and is capable of providing) informed consent to such disclosure.  If Client declines to accept Lawyer’s advice not to proceed, Lawyer can and should decline to prepare the estate planning documents.  The duty of loyalty precludes Lawyer from acting contrary to what reasonably seems to be in Client’s best interest and exposing Client to a risk of exploitation.

Scenario 4: Client Desires to Authorize Lawyer to Take Protective Action in the Event of Future Incapacity

A mentally sharp Client with substantial economic resources and a strained family situation (sound familiar?) is worried about financial exploitation if Client becomes incapacitated, as by Alzheimer’s disease.  May lawyer recommend that Client execute an advance consent that allows Lawyer to disclose confidential information if Lawyer reasonably believes that Client is incapacitated so as to expose Client to serious harm and that disclosure is necessary to prevent that harm?

Yes, but the devil is in the details.  Client’s advance consent to the future disclosure of confidential information is only valid if Client is informed as to the relevant circumstances and material risks and if Client can revoke the consent at any time.  While Rule of Professional Conduct 1.6 does not require that informed consent to disclosure of client confidences be in writing, it would be highly prudent for lawyer to obtain such a written consent (preferably in a standalone writing) given that any dispute about the consent will occur after client’s capacity is questioned.  “To hold that an advance consent could not be given would infringe on an informed, competent client’s right to enlist the client’s lawyer as part of a coherent strategy to protect against future harm.”

Lawyer’s Duty of Competence May Require Capacity Evaluation

Interestingly, COPRAC opines that when a client shows signs of diminished mental capacity, the lawyer’s duty of competence “may require the lawyer to inquire into or make judgments concerning the client’s capacity.”  While a lawyer need not become expert in, or independently make, technical medical or psychological assessments, “sometimes a lawyer will be able to address capacity issues on the basis of the lawyer’s own observations and experience, without regard to such expertise.”

Subject to the duty of confidentiality, the lawyer may consult with another lawyer who has more experience in mental capacity assessment or with medical and psychological professionals.

In accord with the duty of competence, the lawyer might also take measures to support the client’s capacity to make decisions, as by adjusting the interview environment, communicating more slowly, spending extra time and having multiple sessions, and meeting when the client is mentally sharpest.

Conclusion

In the absence of any California professional rule of conduct that specifically addresses clients with diminished capacity, the ethics opinion when finalized will provide a helpful, if tricky, roadmap to estate planning counsel and lawyers in other fields.

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