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End-of-life notice: American Legal Ethics Library

As of March 1, 2013, the Legal Information Institute is no longer maintaining the information in the American Legal Ethics Library. It is no longer possible for us to maintain it at a level of completeness and accuracy given its staffing needs. It is very possible that we will revive it at a future time. At this point, it is in need of a complete technological renovation and reworking of the "correspondent firm" model which successfully sustained it for many years.

Many people have contributed time and effort to the project over the years, and we would like to thank them. In particular, Roger Cramton and Peter Martin not only conceived ALEL but gave much of their own labor to it. We are also grateful to Brad Wendel for his editorial contributions, to Brian Toohey and all at Jones Day for their efforts, and to all of our correspondents and contributors. Thank you.

We regret any inconvenience.

Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.


Alabama Legal Ethics

1.14 Rule 1.14 Client Under a Disability

1.14:100 Comparative Analysis of Alabama Rule

  • Primary Alabama References: AL Rule 1.14
  • Background References: ABA Model Rule 1.14, Other Jurisdictions
  • Commentary:
  • Alabama Commentary:

1.14:101   Model Rule Comparison

There are no differences between ARPC 1.14 and MRPC 1.14.

1.14:102   Model Code Comparison

Inapplicable.

1.14:200 Problems in Representing a Partially or Severely Disabled Client

  • Primary Alabama References: AL Rule 1.14
  • Background References: ABA Model Rule 1.14, Other Jurisdictions
  • Commentary: ABA/BNA § 31:601, ALI-LGL § 24, Wolfram § 4.4
  • Alabama Commentary:

ARPC 1.14 recognizes that a client who is a minor or who suffers from a mental disability may have impaired decision making ability. Also, the rule recognizes that a client may not be able to make adequately considered decisions in the client-lawyer relationship for some other reason. The office of the General Counsel has considered cases where a client has suffered from bipolar manic depression as well as a situation involving a suicidal client. RO-95-03; RO-95-06. Both conditions were recognized as disabilities that could impair the client's decision making capabilities. In each situation, the lawyer requesting the guidance of the Alabama State Bar described how the particular mental condition effected the client's behavior. For instance, in RO-95-03 the client was at the time of the lawyer's request, in a manic state; in RO-95-06, the lawyer working with the suicidal client could not talk to the client about any facet of his divorce proceeding because the client could handle no stress. Thus, it was not the existence of the mental conditions themselves that caused the General Counsel to recognize the conditions as a disability, but rather the effect of those conditions on the clients' decision making. The General Counsel stated: "the rules are fashioned to allow the lawyer to analyze the client's emotional state, and the interest to be advanced by the lawyer on behalf of the client, and then pursue whatever action the lawyer deems best under difficult circumstances." (RO-95-06). In addition, the comments to the rule encourage lawyers who believe their clients suffer from mental disabilities effecting their decision making capacity to contract the appropriate diagnostician.

In addition, the rule recognizes that a client under the age of majority may not be able to make adequately considered decisions. However, a client lacking legal competence often has the ability to understand, deliberate upon and reach conclusions about matters effecting the client's well-being.

1.14:300 Maintaining Client-Lawyer Relationship with Disabled Client

  • Primary Alabama References: AL Rule 1.14(a)
  • Background References: ABA Model Rule 1.14(a), Other Jurisdictions
  • Commentary: ABA/BNA § 31:601, ALI-LGL § 24, Wolfram § 4.4
  • Alabama Commentary:

Information regarding the competence of a client may be considered a confidence or secret of the client, the disclosure of which would be embarrassing or detrimental to the client. A lawyer must take into account these ethical considerations when considering legal guardianship for the client. That is, the lawyer must balance the need to disclose such information for the client's well being and welfare with the embarrassment or damage to the client that could result due to the disclosure.

1.14:400 Appointment of Guardian or Other Protective Action

  • Primary Alabama References: AL Rule 1.14(b)
  • Background References: ABA Model Rule 1.14(b), Other Jurisdictions
  • Commentary: ABA/BNA § 31:601, ALI-LGL § 24, Wolfram § 4.4
  • Alabama Commentary:

One situation in which a client may be considered to be under a disability or unable to make decisions is when he cannot manage personal finances. The General Counsel addresses this situation in RO-90-67. In that situation, the client, a victim of an automobile accident became suicidal. The client wished for the lawyer to keep any funds received from settlement of the case in trust because the client trusted no one else but the lawyer. The General Counsel advised the lawyer to act, using professional discretion in the client's best interest while taking into account disclosure guidelines.

In dealing with a client under a disability a lawyer has a heightened degree of professional responsibility. RO-95-03. The lawyer has a duty to continually treat the client, though suffering from a disability, with attention and respect. The lawyer also must make the decision as to whether the appointment of a legal guardian is necessary.

The lawyer's determination that the appointment of a legal guardian is necessary should be based upon the lawyer's analysis of all aspects of the situation including the opinions of medical experts. RO-95-03. The General Counsel has stated: "If you are reasonably convinced that the client is operating under a disability, and that the disability is of such a nature and to such an extent as to materially impede and/or endanger his ability to make decisions in reference to the sum of money involved, then you may seek to have a guardian or curator appointed to protect the interest of the client." RO-90-67. Besides this "reasonably convinced" standard, the General Counsel has recommended that lawyers balance the client's ability to communicate and to appreciate the seriousness of decisions to be made with expert medical opinions and other relevant information. RO-95-03. The appointment of a guardian is regarded as a last resort. In addition, as the disability of the client increases, so does the level of professional responsibility owed by the lawyer.