Taking Protective Action

consulting with in connection with to communicate or If a lawyer reasonably believes that a client is at risk of substantial physical, financial or other harm unless action is taken, and that a normal client-lawyer relationship cannot be maintained as provided in paragraph (a) because the client to make lacks sufficient capacity adequately considered decisions the representation, then paragraph (b) permits the lawyer to take protective measures deemed necessary. Such measures could include: a reconsideration period to permit clarification or improvement of circumstances, using voluntary surrogate decisionmaking tools such as durable powers of attorney or consulting with support groups, professional adult-protective agencies, or other individuals or entities that have the ability to protect the client. In taking any protective action, the lawyer should be guided by such factors as the wishes and values of the client to the extent known, the client’s best interests and the goals of intruding into the client’s decisionmaking autonomy to the least extent feasible, maximizing client capacities and respecting the client’s family and social connections. family members, using services, In determining the extent of the client’s impaired capacity, the lawyer should consider and balance such factors as: the client’s ability to articulate reasoning leading to a decision, variability of state of mind and ability to appreciate consequences of a decision; the substantive fairness of a decision; and the consistency of a decision with the known long-term commitments and values of the client. In appropriate circumstances, the lawyer may seek guidance from an appropriate diagnostician. transaction may If a legal representative has not been appointed, the lawyer should consider whether appointment of a guardian ad litem, conservator, or guardian is necessary to protect the client’s interests. Thus, if a client with impaired capacity has substantial property that should be sold for the client’s benefit, require the effective completion of appointment of a legal representative. In addition, rules of procedure in litigation sometimes provide that minors or persons with impaired capacity must be represented by a guardian or next friend if they do not have a general guardian. In many circumstances, however, appointment of a legal representative may be more expensive or traumatic for the client than circumstances in fact require. Evaluation of such circumstances is a matter entrusted to the professional judgment of the lawyer. In considering alternatives, however, the lawyer should be aware of any law that requires the lawyer to advocate the least restrictive action on behalf of the client. Disclosure of the Client’s Condition the client’s Disclosure of impaired capacity could adversely affect the client’s interests. For example, raising the question of impaired capacity could, in some circumstances, lead to proceedings for involuntary commitment. Client confidences and secrets are protected by Rule 1.6. Therefore, unless authorized to do so, the lawyer may not disclose such information. When to paragraph (b), the lawyer is impliedly authorized to make the necessary disclosures, even when the client directs the lawyer taking protective action pursuant limits what lawyer may disclose to the contrary. Nevertheless, given the risks of disclosure, in the paragraph (c) consulting with other individuals or entities or seeking the appointment of a legal representative. At the very least, the lawyer should determine whether it is likely that the person or entity consulted with will act adversely to the client’s interests before discussing matters related to the client. The lawyer’s position in such cases is an unavoidably difficult one. Emergency Legal Assistance In an emergency where the health, safety, or a financial interest of a person with seriously impaired capacity is threatened with imminent and irreparable harm, a lawyer may take legal action on behalf of such a person even though the person is unable to establish a client-lawyer relationship or to make or express considered judgments about the matter, when the person or another acting in good faith on that person’s behalf has consulted with the lawyer. Even in such an emergency, however, the lawyer should not act unless the lawyer reasonably believes that the person has no other lawyer, agent or other representative available. The lawyer should take legal action on behalf of the person only to the extent reasonably necessary to maintain the status quo or otherwise lawyer who avoid undertakes to represent a person in such an exigent situation has the same duties under these Rules as the lawyer would with respect to a client. irreparable harm. A imminent and in an emergency should keep A lawyer who acts on behalf of a person with seriously impaired capacity the confidences and secrets of the person as if dealing with a client, disclosing them only to the extent necessary to accomplish the intended protective action. The lawyer should disclose to any tribunal involved and to any other counsel involved the nature of his or her relationship with the person. The lawyer should take steps to regularize the relationship or implement other protective solutions as soon as possible. Normally, a lawyer would not seek compensation for such emergency actions taken. LAW REVIEW COMMENTARIES “Guilty But Mentally Ill: The Ethical Dilemma of Mental Illness as a Tool of the Prosecution,” 32 Alaska L. Rev. 1 (2015).