MRPC Rule 1.14

(a) When a client’s ability to make adequately considered decisions in connection with the

representation is impaired, whether because of minority or mental disability or for some

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

relationship with the client.

(b) A lawyer may seek the appointment of a guardian or take other protective action with

respect to a client only when the lawyer reasonably believes that the client cannot

adequately act in the client’s own interest.

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 mental disorder or disability, however, maintaining the ordinary client-lawyer relationship may not be possible in all respects. In particular, an incapacitated person

may have no power to make legally binding decisions. Nevertheless, a client lacking legal

competence often has the ability to understand, deliberate upon, and reach conclusions about

matters affecting the client’s own well-being. Furthermore, to an increasing extent the law

recognizes intermediate degrees of competence. 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

Michigan Rules of Professional Conduct 38 Updated with MSC order(s)

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

needing special legal protection concerning major transactions.

The fact that a client suffers a disability does not diminish the lawyer’s obligation to treat the

client with attention and respect. If the person has no guardian or legal representative, the lawyer

often must act de facto as guardian. Even if the person does have a legal representative, the

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

maintaining communication.

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. If a legal representative has not

been appointed, the lawyer should see to such an appointment where it would serve the client’s

best interests. Thus, if a disabled client has substantial property that should be sold for the

client’s benefit, effective completion of the transaction ordinarily requires appointment of a legal

representative. In many circumstances, however, appointment of a legal representative may be

expensive or traumatic for the client. Evaluation of these considerations is a matter of

professional judgment on the lawyer’s part.

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(c).

If the lawyer seeks the appointment of a legal representative for the client, the filing of the

request itself, together with the facts upon which it is predicated, may constitute the disclosure of

confidential information which could be used against the client. If the court to whom the matter

is submitted thereafter determines that a legal representative is not necessary, the harm befalling

the client as the result of the disclosure may be irreparable. Consequently, consideration should

be given to initially filing the petition seeking the appointment of a legal representative ex parte

so that the court can decide how best to proceed to minimize the potential adverse consequences

to the client by, for example, issuing a protective order limiting the disclosure of the confidential

information upon which the request is predicated.

Disclosure of the Client’s Condition.

Rules of procedure in litigation generally provide that minors or persons suffering mental

disability shall be represented by a guardian or next friend if they do not have a general guardian.

However, disclosure of the client’s disability can adversely affect the client’s interests. For

example, raising the question of disability could, in some circumstances, lead to proceedings for

involuntary commitment. The lawyer’s position in such cases is an unavoidably difficult one.

The lawyer may seek guidance from an appropriate diagnostician.