Ind. Prof. Cond. Rule 1.14

Effective January 1, 2005

(a) When a client's capacity to make adequately considered decisions in connection with a representation is diminished, whether because of minority, mental impairment or for some

other reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer

relationship with the client.

(b) When the lawyer reasonably believes that the client has diminished capacity, is at risk of

substantial physical, financial or other harm unless action is taken and cannot adequately act

in the client's own interest, the lawyer may take reasonably necessary protective action,

including consulting with individuals or entities that have the ability to take action to protect

the client and, in appropriate cases, seeking the appointment of a guardian ad litem, conservator or guardian.

(c) Information relating to the representation of a client with diminished capacity is protected

by Rule 1.6. When taking protective action pursuant to paragraph (b), the lawyer is impliedly

authorized under Rule 1.6(a) to reveal information about the client, but only to the extent

reasonably necessary to protect the client's interests.

(d) This Rule is not violated if the lawyer acts in good faith to comply with the Rule.

Comment

[1] The normal client-lawyer relationship is based on the assumption that the client, when

properly advised and assisted, is capable of making decisions about important matters.

When the client is a minor or suffers from a diminished mental capacity, however, maintaining the ordinary client-lawyer relationship may not be possible in all respects. In particular, a severely incapacitated person may have no power to make legally binding

decisions. Nevertheless, a client with diminished capacity often has the ability to understand, deliberate upon, and reach conclusions about matters affecting the client's own

well-being. For example, children as young as five or six years of age, and certainly those

of ten or twelve, are regarded as having opinions that are entitled to weight in legal proceedings concerning their custody. So also, it is recognized that some persons of

advanced age can be quite capable of handling routine financial matters while needing

special legal protection concerning major transactions.

[2] The fact that a client suffers a disability does not diminish the lawyer's obligation to

treat the client with attention and respect. Even if the person has a legal representative,

the lawyer should as far as possible accord the represented person the status of client,

particularly in maintaining communication.

[3] The client may wish to have family members or other persons participate in dis-

cussions with the lawyer. When necessary to assist in the representation, the presence of

such persons generally does not affect the applicability of the attorney-client evidentiary

privilege. Nevertheless, the lawyer must keep the client's interests foremost and, except

for protective action authorized under paragraph (b), must look to the client, and not family members, to make decisions on the client's behalf.

[4] If a legal representative has already been appointed for the client, the lawyer should

ordinarily look to the representative for decisions on behalf of the client. In matters

involving a minor, whether the lawyer should look to the parents as natural guardians may

depend on the type of proceeding or matter in which the lawyer is representing the minor.

If the lawyer represents the guardian as distinct from the ward, and is aware that the

guardian is acting adversely to the ward's interest, the lawyer may have an obligation to

prevent or rectify the guardian's misconduct. See Rule 1.2(d).

Taking Protective Action

[5] 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 lacks sufficient capacity to

communicate or to make adequately considered decisions in connection with the representation, then paragraph (b) permits the lawyer to take protective measures deemed

necessary. Such measures could include: consulting with family members, using a recon-

sideration period to permit clarification or improvement of circumstances, using voluntary

surrogate decision making tools such as durable powers of attorney or consulting with

support groups, professional services, 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 decision making autonomy to the least extent feasible, maximizing client capacities and respecting the

client's family and social connections.

[6] In determining the extent of the client's diminished 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.

[7] 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 diminished capacity has substantial property that

should be sold for the client's benefit, effective completion of the transaction may require

appointment of a legal representative. In addition, rules of procedure in litigation some-

times provide that minors or persons with diminished 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

[8] Disclosure of the client's diminished capacity could adversely affect the client's

interests. For example, raising the question of diminished capacity could, in some circumstances, lead to proceedings for involuntary commitment. Information relating to the

representation is protected by Rule 1.6. Therefore, unless authorized to do so, the lawyer

may not disclose such information. When taking protective action pursuant to paragraph

(b), the lawyer is impliedly authorized to make the necessary disclosures, even when the

client directs the lawyer to the contrary. Nevertheless, given the risks of disclosure, paragraph (c) limits what the lawyer may disclose in 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

[9] In an emergency where the health, safety or a financial interest of a person with seriously diminished 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 avoid

imminent and irreparable harm. A lawyer who 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.

[10] A lawyer who acts on behalf of a person with seriously diminished capacity in an

emergency should keep the confidences of the person as if dealing with a client, dis-

closing 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 reg-

ularize the relationship or implement other protective solutions as soon as possible.

Normally, a lawyer would not seek compensation for such emergency actions taken.