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One of the most common questions we receive from insureds at TLIE is about how to deal with a client who may not be competent. The question often arises because of the lawyer’s observation of the client’s behavior, or because another party reports the situation to the lawyer. In either case, the lawyer must be careful to meet continuing duties to the client both to represent their interest and, in certain situations, to seek other help for the client.

This article will focus on what to do if the client does not have a guardian or legal representative. Once a guardian or other legal representative is in place, Comment 5 to TDRCP Rule 1.03 makes important observations about the level of involvement that the lawyer must have with the client when they have a guardian or legal representative.

Duty to an Incompetent Client

Texas Disciplinary Rule of Professional Conduct (TDRPC) Rule 1.02(g) requires that if a lawyer “reasonably believes” that a client “lacks legal competence” then the lawyer “shall take reasonable action.” This rule specifies that reasonable action is:

1. Appointment of a guardian or other legal representative or
2. Protective orders.

Comment 12 makes the important observation that a valid attorney–saclient relationship can only be established by “consenting legal adults with legal capacity to agree to the relationship.” If a lawyer is considering representing a person and the lawyer is uncertain about their capacity, it is best to resolve questions about capacity prior to performing any work for the person.

Reasonable Belief That a Client Lacks Competence

TDRPC Rule 1.2(g) does not define legal competence or provide guideline to use when assessing legal competence of a client. A decision that a client lacks competence can be a difficult one. Legal competence definitions vary among contexts. A good overview of the different standards used under Texas law to determine competence is in Texas Legal Standards Related to Mental Capacity in Guardianship Proceedings. This article notes varying definitions of legal capacity for contracts, voting, wills, gifts and trusts. There are other areas of the law which may involve a competence component, but this article at least hits some commonly encountered Texas competency situations. Researching updates to the law in this area is recommended.

The ABA Model Rules devotes Model Rule 1.14 to the ethics of client competence, Rule 1.14 states that the lawyer’s duty to seek protection of an incompetent client is permissive, while TDRPC Rule 1.02 requires that lawyers take action. Still, the basic outline of Rule 1.14 does not vary too much from that of TDRCP 1.02(g) and Comment 5 to TDRCP Rule 1.03. Comment 6 to Model Rule 1.14 elaborates on how a lawyer should evaluate client competence. The comment says that a lawyer should consider and balance factors such 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.

Furthermore, Comment 5 indicates that a lawyer may seek out the advice of a doctor in assessing client competence.

The first four factors require lawyer observation of the client. Discussion with client family may provide further insight into the client’s situation, but care must be used not to reveal any information about client confidential information in the course of such a discussion. Seeking the client’s permission to talk to family specifically about behavior and medical conditions may be a way to gain valuable information regarding the client’s capacity.

Seeking a doctor’s advice will often be a final step in the process of evaluating client competence if the observations of the client cause the lawyer to question the client’s competence to make decisions. Again, care must be used in discussing the client with the doctor, and client permission for any such discussion would be required by HIPAA.

A practical way to view a lawyer’s required reasonable analysis of client competence can be summarized as follows:

Consider client behavior and consider legal standards before seeking medical evaluation or disclosure.

The Assessment of Older Adults with Diminished Capacity: A Handbook for Lawyers, by the ABACommission on Law and Aging and the American Psychological Association (2005), provides a great worksheet for assessing client competence. The worksheet takes into account lawyer observations, ethical issues, and the law regarding client competence. The complete handbook is available here.

It should be kept in mind that failure to reasonably assess client competence can result in malpractice claims. Suits against lawyers who have provided wills to clients alleged to be incompetent at the time of execution of the will are somewhat uncommon. Conversely, a lawyer who takes action to seek a guardianship when not warranted may face a claim as well. It is thus important that any decisions about client competence proceed in a methodical manner, so that the reasonableness of the lawyer’s action or lack of action is clear.

Options If Reasonable Question About Client Capacity

It is important for lawyers who feel they may need to help protect vulnerable clients to understand the range of options available.

If a client has a valid durable power of attorney, it may be possible to work with the appointed fiduciary to help the client. The individual holding the power of attorney may be legally able to undertake actions on behalf of the client. However, care should be used, especially if the fiduciary stands to gain from exercising the power of attorney.

If an older client has been abused, neglected or exploited, a report to Adult Protective Services may be appropriate.

It should be understood that an incapacitated client is not necessarily incompetent for all purposes. Courts are more inclined these days to grant limited guardianship powers, leaving incapacitated clients room for as much autonomy as possible. If a lawyer decides to start guardianship proceedings, care should be taken not to push for more control over the ward’s life and finances than necessary. The lawyer should also not seek to become the guardian.

According to Comment 13 to TDRCP Rule 1.02, a lawyer is authorized to shared confidential information about the client to the extent necessary to protect the client in a guardianship proceeding. Of course, such a revelation is contingent on the lawyer’s reasonable belief that guardianship is necessary.

Conclusion

Evaluating client competence and taking appropriate action is difficult. We hope this article helps should you face such a situation. TLIE insureds can call 800-252-9332 to discuss particular situations with our loss prevention staff.