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Rule amendment provides guidance for dealing with clients with diminished capacities

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Andrew Sasso

Andrew Sasso

A veteran Bar leader is celebrating the Supreme Court’s recent approval of amendments to a Bar rule that sponsors say will help lawyers navigate a difficult and growing challenge.

In a March 3 opinion addressing a sweeping biennial Florida Bar rules petition, justices approved proposed revisions to Rule 4-1.14 (Client Under a Disability) — now Rule 4-1.14 (Client with Diminished Capacity).

“I’m very happy, I think it should be very helpful to lawyers in so many different areas of practice,” said Andrew Sasso, chair of the Real Property, Probate and Trust Law Section’s Ethics and Professionalism Committee.

Considering the latest Census figures, the changes are timely. The number of Floridians 65 or older is expected to grow by 1.4 million between 2020 and 2045, from 20% of the population to 25%, according to a Florida Tax Watch study.

“Of course, with the demographics we have in Florida, we all anticipate there’s going to be more and more situations where lawyers are dealing with people with diminished capacity,” Sasso said. “The goal from the beginning was to provide more guidance.”

The revisions add new subdivisions, extensive new comment, and bring the rule more in line with ABA Model Rule 4.14.

Sasso was inspired to launch the project four years ago when he was the committee vice chair and attended a legal seminar in Tampa.

“One of the speakers was an attorney, James George, and he compared the ABA rule with the Florida rule,” Sasso said. “And that just hit me over the head, and I said, we really need to adopt the ABA rule.”

Clearwater attorney Steven Hitchcock, immediate past chair of the Elder Law Section, served on the committee, and as a liaison to the section. The section was quick to endorse the proposal, Sasso said.

Justices made no revisions to the proposed amendments and adopted them without comment in In Re: Amendments to Rules Regulating The Florida Bar — Biennial Petition, Case No. SC20-1467.

The Florida rule is not identical to the ABA Model Rule, but mirrors most of its content.

One of the most substantial updates is to subdivision (b) “Appointment of a Guardian,” now called “Protective Action.”

It states, in part, that “a lawyer is not required to seek a determination of incapacity or the appointment of a guardian or take other protective action with respect to a client.”

The new language addresses a common concern many lawyers expressed when interpreting the rule, Sasso said.

“It now makes it clear that a lawyer is not required to seek a determination of incapacity, or the appointment of a guardian, or take other protective action with respect to a client,” Sasso said. “I think there was some debate before this change whether a lawyer was required to petition a court to have their own client’s capacity determined and appoint a guardian.”

A new subdivision (c), “Confidentiality,” states in part, that “When taking protective action under this rule, the lawyer is impliedly authorized under the rule on confidentiality of information to reveal information about the client, but only to the extent reasonably necessary to protect the client’s interests.”

A new comment signals that lawyers have some flexibility when they are trying to balance their ethical responsibilities with a client’s wishes.

The comment notes that a client may wish to have family members or other persons participate in discussions with the lawyer.

“When necessary to assist in the representation, the presence of these persons furthers the rendition of legal services to the client and does not waive the attorney-client privilege,” the comment states. “Nevertheless, the lawyer must keep the client’s interests foremost and, except for protective action authorized under subdivision (b), must look to the client, and not family members, to make decisions on the client’s behalf.”

Many lawyers will welcome the removal of a sentence from the comment section, Sasso said. The sentence stated that “if the person has no guardian or legal representative, the lawyer often must act as de facto guardian.”

“Nobody understood what that meant,” Sasso said. “Exactly what is a ‘de facto guardian,’ and what are your obligations and fiduciary duties as a ‘de facto guardian?’”

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