My Basement Is Filled with Pornography!
I f any rule requires careful study by attorneys practicing elder law, ABA Model Rule 1.14 is such a rule. This brief article examines the effect of this rule in the context of a client’s decline.
We do not overlook other important rules and considerations such as defining who the client is among conflicted family members and their aging parent or parents, a fundamental ethical issue in our practices, as well as other more novel ethical conundrums, but we leave consideration of them for another day, and suggest a reading of Frolik, Schlesinger and The Fordham Law Review1 i n the interim.
In this episode we take a real life call from Amedra, and we visit the model rule which is (and must be) no stranger to us—1.14—Client Under a Disability. It governs our response to this demented soul,2 a lthough there is no consensus regarding how a lawyer ought to respond in representing a client whose competency is questionable.3
Amedra
“My basement is filled with pornography!” This message was the initial offering of my caller after assurances from me that I was indeed “Mr. Kruse,” for whom she had asked.
The call was from Amedra, no stranger to me. Over the last 20 years, my wife and I have shared many gourmet meals with her and her husband, along with several other dining companions. Five couples took turns preparing scrumptious offerings, marrying the “right” wines with very special courses, including amuse-bouche, and entremets, all of us trying to outdo each other, I suppose, when it was our respective turn to host the meal. We discovered Pugliese, a delicious crusty Italian bread, and Tenuta Del Numerouno, a perfect extra virgin Tuscany cold pressed olive oil for dipping, at one of these galas.
From this caller I also learned that Stilton cheese is not just good, but near perfect with an older Zin4 or with an aged but still tannic Bordeaux, as well as with Stilton’s more common partner, a rich, ruby-red Portugese Vinho do Porto.
Our group disbanded when Amedra’s husband died. Her grief resulted in a lengthy withdrawal from things social, and she and her husband had been the catalysts of our group. They made it work, arranged for the times we met, coordinating the varying schedules of five busy couples. Following her husband’s death, about six years ago, Amedra’s enthusiasm for gourmet meals was understandably lost. Her amusement at our gatherings, vibrantly evidenced in her laughter and banter among the members of the group, now that she was widowed and alone, never returned.
Two months earlier, I’d received another call from my friend, the first in several years following the closing of her husband’s estate. That evening call to my home also began strangely.
“Someone on your staff is taping our calls,” she said.
“They are?” I replied, mystified, careful not to be defensive. “Why?” She had no idea, but she knew I would “want to know” that her calls were being taped.
“But you don’t have a basement!” I replied to Amedra in response to her announcement about the pornography. I had been to my friend’s home many times, all through it. It is built on a slab with no basement.
“Who else have you called about this?” I asked.
“Just you.”
“Not your daughter?”
“No.”
“Call her,” I suggested.5
Two months passed. Another call. After establishing who I was, the lawyer she intended calling, she spoke, actually near-whispered, “There are cameras in my home!”
“What do you mean?”
“Someone has hidden cameras all over the house,” she paused, “in the walls.”
“Why?”
“I don’t know.”
“What do you want me to do?”
“Tell whoever put them in to take them out.”
“Can you see them?”
“No. They’re hidden in the walls.”
“In Whatever House I Enter I Will Go. . . for the Benefit of the Sick.. . . ”
Ethical issues arise when a lawyer discovers that his or her client is mentally deranged. In the case of Amedra, what am I to do? What are my ethical responsibilities to my long-term and now demented client?
Is my paranoid6 c aller one who is suffering from a disability, a derangement contemplated by the model rule?7 I f so, what duties do I owe to her and in what activity may or must I engage to protect her?8 D eontological concepts arise from a sense of duty or obligatory activity, because certain responsive acts are morally appropriate, the right things to do. Hippocrates reminded us of this. It dominates his oath.9 A nd, as in medicine, deontic study is required in law.
A lawyer who has a long-standing relationship with a client, even though such lawyer is not currently working on a project for the client, “is not for lack of [a current] assignment barred from taking appropriate action to protect [her]. . . . ”10 B ut how paternalistic may the lawyer be? What duty or duties to the client must the legal agent satisfy? And what standards are controlling about which the lawyer must be aware? Rule 1.1411 p rovides that “a client [lacking legal competence] often has the ability to understand, deliberate upon and reach conclusions about matters affecting [his or her] own well-being.”12 A lawyer, therefore, cannot simply take over and protectively control a client’s behavior by acting as a de facto fiduciary. Serious conversation with the client is required to determine in what way the client’s behavior is jeopardizing her values, her life, her property, and her relationships. Based upon the disclosed irrationality, what is substantially at risk for the client? This must be defined in each situation.
Both the predecessor Ethical Considerations 7-12 and the model rule impose a normal lawyer-client relationship on the attorney, or as near to that as possible notwithstanding the client’s disability. “This obligation,”13 t he ABA opinion states, “implies that the lawyer should continue to treat the client with attention and respect, attempt to communicate and discuss relevant matters, and continue as far as reasonably possible to take action consistent with the client’s directions and decisions.”14
“Don’t Let Them Take My Home!
My House Talks to Me at Night, and I Enjoy the Conversation.”
In connection with Model Rule 1.14, what does “lacking legal competence” mean? Does paranoia detract from legal capacity or destroy it? While this client may be entertained by her dementia, to what extent does it result in her inability to make and communicate responsible decisions? What injury to herself or others does her misperception of reality create?
“Normal client-lawyer relationships presume that there can be effective communication between the client and the lawyer.”16 T he ethical obligation of the attorney emphasized in Rule 1.14 is, following their disabilities, to “continue to treat clients. . . with attention and respect and attempt to communicate and discuss relevant matters [with them] and to continue as far as is reasonably possible to take action consistent with the client’s directions and decisions”17 b ecause the client who might otherwise be incompetent may have “the ability to understand,. . . deliberate upon, and reach [responsible] conclusions about matters affecting [her] own well-being.”18
How is Amedra’s distortion of reality—imagined pornography which she cannot see because she has no basement where she believes it to be stored and imagined cameras embedded in her walls, watching her— affecting her ability otherwise to make and communicate responsible decisions affecting her life? Is she or anyone else injured by her personal distortions relating to her perception of the reality of her environment?
“I Will Follow That. . . Regimen Which According to My Ability and Judgment I Consider [to Be] for the Benefit of My Patients.”
Amedra’s lawyer cannot intervene unless the client’s own interests are in jeopardy. The ABA Formal Opinion 96-404 provides that Model Rule 1.14 “does not authorize the lawyer to take protective action [just] because the client is not acting in what the lawyer believes to be the client’s best interest,[.] [He or she can detract from client autonomy] only when the client ‘cannot adequately act in [her] own best interest,’”19 a subjective determination made by the affected party’s counsel when the agent reasonably believes that the client’s personal values are at immediate risk and intervention, therefore, will be beneficial. For example, if the client suggests that she intends to destroy her home, burn it down to rid herself of its basement contents and its watchful eyes, an immediate risk of loss should clearly authorize intervention by her counsel.
The lawyer, however, cannot paternalistically substitute her or his own value system which results in a judgment preventing the client from the right of autonomy, because intervention as a de facto fiduciary or in any other manner which restricts client freedom is inconsistent with the principles of a “normal” relationship which the formal opinion requires.20 B eing well-intentioned does not allow the lawyer to overrule the right of self-direction possessed by another, and the opinion reminds us that “the authority granted under Rule 1.14(b) to seek protective action should be exercised with caution in a limited manner consistent with the nature of the particular lawyer/client relationship and the client’s needs. . . . ”21 T here is no right nor need to intervene unless the client is a danger to herself or to others. This is the criterion, and aberrational behavior alone is not grounds for a takeover. A departure from what is accepted as normal or right behavior in the community is not in itself grounds for breaching the greater value autonomy describes.
“Whatever in Connection With My Professional Practice. . . I See or Hear. . . Which Ought Not to be Spoken of. . . I Will Not Divulge. . . All Such Should be Kept Secret.”
In the case of Amedra, should the lawyer seek an opinion from an appropriate diagnostician, perhaps in the instant case, a psychiatrist or psychologist? Model Rule 1.14 suggests that it is appropriate for the lawyer to seek such guidance, particularly when the matter of incompetence may foreseeably result in adverse consequences to the client. And “discussion of a client’s condition with a diagnostician arising from reasonable concern does not violate Rule 1.6 (Confidentiality of Information), insofar as it is necessary to carry out [representation of the client responsibly].”22
“Have You Called Your Daughter?”
The ABA formal opinion reminds us that there may be circumstances when “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 the decision of how to proceed. Limited disclosure of the lawyer’s observations and conclusion about the client’s behavior. . . fall within the meaning of disclosures necessary to carry out the representation authorized by [Model] Rule 1.6″23
The formal opinion affirms that contact with family by the lawyer, as opposed to encouraging the client to discuss issues with family, is an adjunct to the right of the lawyer to take protective action when this appears necessary. Disclosure to family members, should, however, be limited to disclosure “pertinent to the assessment of the client’s capacity and discussion [with family members relating to an appropriate protective response].”24
Our clients have a fundamental right of independence, a right of autonomy, a right to be their own decisionmakers,25 a nd only in extraordinary circumstances is the lawyer authorized to usurp this right.26
Model Rule 1.14 allows intervention of an attorney in lieu of her or his withdrawing as the affected person’s counsel.27 P ermitted intervention can take a variety of forms. When the inability of a client is significant such that the client, in the lawyer’s reasonable opinion, appears to be a danger to herself or himself or to others, for example, the lawyer may seek appointment of a guardian. The lawyer, however, may not represent a third party in filing for fiduciary protection for her or his client,28 b ut the lawyer may support the appointment of a particular person as guardian,29 e ven though the attorney may not represent the petitioner who is requesting the appointment. The ABA opinion provides that “[o]nce a person has been adjudged incompetent [however] and a guardian has been appointed to act on his [or her] behalf, the lawyer is [then] free to represent the [fiduciary].”30 T he opinion warns us, however, that “prior to that time, any expectation the lawyer may have of future employment by the person he [or she] is recommending for appointment as her client’s fiduciary must be brought to the attention of the appointing court.”31
“Abstain From Whatever Is
Deleterious and Mischievous.”
The ABA formal opinion emphasizes that action which a lawyer takes on behalf of a client should be the least restrictive among the available options. Even when ill, the client’s autonomy must be respected, but in a manner that will not result in injury (or further injury) to the affected person. This requirement may reduce the client’s freedom to be self-directed, and the client should be heard in response to the court’s view of the degree of control another person will have over her or his life. And the client’s view must always be heard.32 T he appropriate strategy for disclosure of such client views may come through the appointment of a guardian ad litem. This fiduciary will be governed by the client’s “best interests,” and the guardian ad litem should request the appointment of a special guardian to represent the client’s point of view to the court, an advocate for that position, in cases in which this is determined to be appropriate,33 s uch as disagreement between the guardian ad litem and the affected person regarding issues relating to such person’s care and needs. A relatively recent case, Matter of M.R. , 683 A.2d 1274, 1283 (N.J. 1994), provides that the attorney representing the client must be a “zealous advocate for the client’s wishes.” The court-appointed guardian ad litem serves the court on behalf of the incapacitated person but is not the person’s advocate. The guardian ad litem acts as independent fact finder, investigator, and evaluator regarding what may further the best interests of the person believed to be in need of protection.34 & #x201c;The [special fiduciary] evaluates for himself or herself what is in the best interest of [the ward] and then advocates that judgment [even though it may not be what the ward herself or himself desires].”35
Elder law attorneys must perceive the conditions of their aging clients and take protective action when this need becomes apparent, when no durable agencies exist, and no appropriate candidate for fiduciary appointment comes to the rescue of the ward-in-waiting. The lawyer’s judgment is supported by the ethical Rule 1.14, making a difficult decision to intervene less burdensome.36
The standard the rule describes should be protective of a lawyer’s good intentions. Counsel may (not must) take protective action in cases when it is demonstrably needed. Prof. Peter Margulies, in his quintessential analysis, verbalizes the framework within which wise lawyer decisions can be made.37 W e also may withdraw, support (but not represent) a guardian for the client, seek unofficial consent to act from a family representative, seek to persuade the client toward best interest alternatives, act as a de facto guardian, or continue to presume competence and act accordingly.38
The choices we have as counsel are not simplistic. Our responsibilities are significant and our privilege to serve our clients in these moments of their great need is enviable.
q
1 Lawrence A. Frolik and Melissa C. Brown, Advising the Elderly or Disabled Client (1992) (Supplemented through 1998), §§1.13 and 1.14; Supplement 1-1 and Supplement 1-3; see also Lawrence A. Frolik and Alison Patrucco Barnes, Elder Law Cases and Materials 77–01; Sanford J. Schlesinger and Barbara J. Scheiner, Planning for the Elderly or Incapacitated Client (CCH 1992) “Ethical Issues,” ¶¶2201-2207); multiple authors, Ethical Issues in Representing Older Clients, 62 Fordham L. Rev. (March 1994).
2 A person regarded with sorrow and compassion; with regret. The Oxford Encyclopedic Dictionary (1996) 1384, 1106.
3 Annot. Model Rules of Professional Conduct 217, 3d ed., ABA (1996).
4 Zinfandel, a fine red wine grape, a species of Vinifera, believed to be Italian in origin, now grown extensively in California, and not to be confused with the cloyingly insipid “white zin,” found in abundance on the cocktail circuit.
5 “[T]he lawyer [may] wish to consult with the client’s family. . . [where such] persons. . . are in a position to aid the lawyer’s assessment of the client’s capacity.” See infra note 19.
6 A mental disorder with delusions of persecution; abnormal suspicion and mistrust. The Oxford Encyclopedic English Dictionary, “paranoia,” supra note 2, at 1055.
7 ABA Model Rule 1.14. See discussion, Annotated Model Rules of Professional Conduct , supra note 3. Advanced age may result in conditions necessitating protection of the client in major financial transactions, p. 215.
8 ABA Model Rule 1.14, Client Under a Disability, id .
(a)When a client’s ability to make adequately considered decisions in connection with the representation is impaired, whether because of minority, mental disability or for some other reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client.
(b)Not only can the mental, physical or other condition of the client impose additional responsibilities on the lawyer, the fact that a client is impaired does not relieve the lawyer of the obligation to obtain information from the client to the extent possible.
(c)A lawyer may seek the appointment of a guardian or take other protective action with respect to a client only when the lawyer reasonably believes that the client cannot act in the client’s own interest.
9 See Sherwin B. Nuland, Doctors – The Biography of Medicine 2d ed. 24, 26 (1988). Deontology is the study of duty; deontic relates to duty as it is expressed in ethical concepts. See Oxford Encyclopedic Dictionary , supra note 2, at 382.
10 See ABA Formal Opinions, Formal Opinion 96-404 (August 2, 1996), “Client Under a Disability,” No. 170, 1101:109, p. 45. The ending of this statement reads “.. . to protect a client where 1.14(b) applies.” The meaning is not intentionally altered by the author’s revision.
11 Supra note 7, at 46.
12 Id. Prior ethical considerations found in EC7-12 of the Model Code of Professional Responsibility provided that “if a client is capable of understanding the matter in question or if contributing to the advancement of his [or her] interests regardless of whether he [or she] is legally disqualified from performing certain acts, the lawyer should obtain from him [or her] all possible aid.” A client’s ability to make responsible decisions may be impaired due to senility, insanity, medication, alcohol, or drug addiction. Annot. Model Rules , supra note 7, at 216.
13 Supra note 10, at 46 ABA Formal Opinion 96-404, 1101.109.
14 Id. See also Rule 1.4(a). “A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.” See also Rule 1.2(a) “A lawyer shall abide by a client’s decisions concerning the objectives of representation. . . and shall consult with the client as to the means by which they are to be pursued. . . . ”
15 See Peter Margulies, Access, Connection, and Voice: A Contextual Approach to Representing Senior Citizens of Questionable Capacity, 62 Fordham L. Rev. 1073 (March 1994). The author, in a section on “Defining Capacity,” specifically writes: “Suppose that a senior citizen wants to go to court to save his house. His reason is that the house tal ks to him at night and he enjoys the conversation.” p. 1085. Margulies suggests that six factors be considered in assessing capacity. They are:
1) Does the client articulate reason for her or his decisions?
2) Are the decisions consistent or variable?
3) Does the client understand the consequence of the decisions made?
4) Are the decisions irreversible?
5) Are the decisions substantially fair?
6) Are the decisions consistent with the client’s lifetime commitments?
16 Intermediate degrees of competence are recognized by the ABA rule. See comment 1 to Model Rule 1.14, and further, see Formal Opinion 96-404, supra note 10, at 46. See EC7-12, predecessor to the Model Code, which states, “If a client is capable of understanding the matter in question or of contributing to the advancement of his [or her] interests, regardless of whether he [or she] is legally disqualified from performing certain acts, the lawyer should obtain from [such client] all possible aid.”
17 Supra note 10, at 46.
18 Id .
19 Model Rule reference. The Formal Opinion provides that “the client’s capacity must be judged against the standards set by that person’s own habitual or considered standards of behavior and values, rather than against conventional standards held by others.” The Opinion cites M. Silberfield and A. Fish, When the Mind Fails: A Guide to Dealing with Incompetency (1994).
20 Supra note 10, at 47. See discussion on paternalism, Annot. Rules 1.14, supra note 3, at 217. A “normal relationship” favors client autonomy. Id. at 217–218.
21 Id . Formal Opinion 96-404, at 47.
22 Id. And see ABA Informal Opinion 89-1530; Oath of Hippocrates, Nuland, supra note 9.
23 Supra note 10, at 47–48.
24 Id . at 48. Model Rule 1.6 does not permit the lawyer to disclose generally information relating to the representation.
25 Id . Formal Opinion 96-404 at 49.
26 Id .
27 Model Rule 1.14, supra note 10, does not compel a lawyer to take protective action on behalf of her or his client, and withdrawal is ethically permissible where it can be accomplished “without material adverse effect on the interests of the client.” See Rule 1.16(b)(5). See also C. W. Wolfram, Modern Legal Ethics, 162 (1986), in which it is stated, “Even if withdrawal is technically permissible, it ‘only solves the lawyer’s problem and may belittle the client’s interest.’” (Endnote 8) ABA Formal Opinion, 96-404, at 48.
28 Id. at 49.
29 Id. at 50.
30 Id.
31 Id. And see ABA Model Rule 3.3 and 1.7(b) relating to candor to the tribunal and special responsibilities owing to a disabled client.
32 Supra note 10, at 51.
33 See Matter of M.R., 683 A.2d, 1274 (N.J. 1994).
34 Id.
35 Id .
36 Annot. Model Rules, supra note 3, refers to a lawyer’s acting to protect an impaired client based on the lawyer’s judgment, and becoming a de facto aide, an “unavoidably difficult [position], [an] unhelpful bromide.” An “aide,” The Oxford English Dictionary, supra note 2, confirms is “an unqualified assistant. . . ” p. 24, with which our professional medical colleagues, I presume, will agree.
37 Supra note 15.
38 The Annot. Model Rules 1.14, supra note 3, at 218. See Red Dog v. State, 625 A.2d 245 (Del. 1993), re duty to pursue an action to protect a client, in this case a criminal appeal.
Clifton B. Kruse, Jr., is senior shareholder with the law firm of Kruse & Lynch, P.C., Colorado Springs, Colorado, and limits his practice to will and trust planning, estate administration, and elder law. He graduated from Boston University and received his J.D. from Washburn University. He is a fellow of the American College of Trust & Estate Counsel and past president and fellow of the National Academy of Elder Law Attorneys. This article appeared in 12 NAELA Quarterly (Winter 1999).
This column is submitted on behalf of the Elder Law Section, Mary Alice Jackson, chair, and Julie Osterhout, editor.
