December 19, 2018

Dear Ethics Committee:

      I am representing an elderly client in a civil matter. The client is 80 years old and has been diagnosed with dementia. While there has been no finding by a court that she lacks capacity, the client does not seem to participate fully in, or follow the progress of, the representation due to some “diminished capacity.” The client lives in a nursing home and becomes easily confused when talking with me over the phone. I am not certain she reads my letters. What are my obligations in terms of communicating with the client and ensuring she is participating in her case?

 

Sincerely,

Attorney Doe

 

Dear Attorney Doe:

If a client’s capacity impairs his or her ability to adequately consider decisions concerning representation, Rule 1.14 obligates you to maintain a normal client-lawyer relationship, as far as reasonably possible. This may necessitate adjusting the way you communicate with the client. When a client decision is required to advance the case, you may need to schedule an in-person meeting to accommodate your client’s difficulties in communicating over the telephone. You will need to make reasonable efforts to provide your client with updates on the representation. Status updates which do not require a client response or input may reasonably be sent via letter.

Below are some of the specific rules that should be considered when trying to strike the ethical balance between substantive work and client communication in a busy practice.

 

Rule 1.2: Scope of Representation and Allocation of Authority Between Client & Lawyer

The client controls the objectives of representation, and Rule 1.2 requires a lawyer to consult with the client as to the means by which the objectives are pursued.

 

Rule 1.4: Client Communication

This rule expressly requires a lawyer to promptly respond to reasonable requests for information and to promptly inform a client of topics that require informed consent, as such term is defined under Rule 1.0(e). A lawyer also must reasonably consult with the client about the means by which client objectives are to be accomplished. In addition, the lawyer must explain the legal and practical aspects of the legal matter and any alternative courses of action when it is necessary for the client to make informed decisions.

 

Practical Tips:

  • If your client can participate in their representation, even if meaningful participation requires an accommodation by the lawyer, Rule 1.14 obligates the lawyer to make reasonable efforts to maintain a normal client-lawyer relationship and Rule 1.2 requires that the client direct the scope of the representation. If maintaining the client’s meaningful participation means scheduling in-person appointments, versus phone calls, emails or letters, the lawyer may be obligated to do so. However, the client should be advised of additional expenses that may arise due to any accommodation the lawyer considers necessary to comply with the Rules.

 

The Ethics Committee provides general guidance on the New Hampshire Rules of Professional Conduct and publishes brief commentaries in the New Hampshire Bar News. New Hampshire lawyers may contact the Committee for confidential and informal guidance on their own prospective conduct or to suggest topics for Ethics Corner commentaries by emailing

Robin E. Knippers at reknippers@nhba.org