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Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.


Arizona Legal Ethics

1.14   Rule 1.14 Client Under a Disability

1.14:100   Comparative Analysis of Arizona Rule

1.14:101      Model Rule Comparison

The 2003 amendments to the Arizona Rules of Professional Conduct changed the title of this Rule, and its terminology, to refer to clients suffering from "diminished capacity," rather than "disabled" or "impaired." Other changes to the Rule provide additional guidance to lawyers seeking "protective action" for such a client.

AZ-ER 1.14 and MR 1.14 are identical, but there are minor differences between the accompanying Comments. The Comment to AZ-ER 1.14 omits the second sentence of paragraph 3, and the final sentence of paragraph 10, of the Comment to MR 1.14. The fourth sentence of paragraph 8 of the Comment to AZ-ER 1.14 does not appear in the corresponding paragraph of the Comment to MR 1.14.

1.14:102      Model Code Comparison

There was no direct counterpart to this Rule in the former Code of Professional Responsibility. Former EC 7-12 did discuss the additional responsibilities that may be placed upon the lawyer who undertakes the representation of client who is unable to make considered judgments in his or her own behalf, and sets forth aspirational standards for the lawyer to follow that are quite similar to the requirements of AZ-ER 1.14.

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

The representation of a client who is partially or severely disabled, particularly when the disability is mental in nature, presents problems not found in the normal attorney-client relationship. As the Comment to AZ-ER 1.14 points out:

When the client is a minor or suffers from a diminished mental capacity, 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.

Comment, AZ-ER 1.14, 1.

AZ-ER 1.14(b) imposes upon the lawyer representing a client who suffers from diminished capacity an obligation in addition to the normal obligations of a lawyer to a client - the obligation to make judgments concerning the client's ability to act in the client's own interests. Under AZ-ER 1.14(b), if a lawyer reasonably believes that a client cannot adequately act in the client's own interest, the lawyer may seek the appointment of a guardian or take other protective action. Thus, in Arizona Ethics Opinion No. 90-12, the Committee on the Rules of Professional Conduct ("the Committee") held that, if a lawyer suspects a client is unable to adequately act in the client's own best interests, the attorney may take reasonable steps to determine whether a guardian should be appointed for the client, and may even disclose confidential information, without the client's consent to the extent necessary to permit an independent diagnostician to make an assessment of the degree of the client's disability.

In Arizona Ethics Opinion No. 91-18, the Committee addressed the issue of the obligations imposed upon an attorney whose client expresses to the attorney an intent to commit suicide. The Committee initially noted that the client's expression of such an intent was a confidential communication ordinarily protected from disclosure under the provisions of AZ-ER 1.6, and initially suggested that the course of action the attorney must take may depend upon whether suicide constitutes a crime, which the Committee deemed an issue of law which it was not empowered to decide. If the attorney faced with such a situation determines that the client's commission of suicide would constitute a crime, then the lawyer would have an obligation, under AZ-ER 1.6(b), to reveal the client's statement of intent "to the extent the lawyer reasonably believes necessary to prevent the client from committing a criminal act . . ." If the lawyer determines that the client's commission of suicide would not constitute the commission of a criminal act, or is uncertain whether or not it will do so, the lawyer nevertheless has an obligation to determine whether the client's threat to commit suicide provides a basis for the formation on the lawyer's part of a reasonable belief that the client cannot adequately act in the client's own best interests. If the lawyer determines that it does, then the lawyer is permitted to take protective action with respect to the client and may, under Arizona Ethics Opinion No. 90-12, reveal the client's statement concerning the intent to commit suicide to an independent diagnostician to permit an assessment of the extent client's disability.

In the Comment to AZ-ER 1.14(b), and in some earlier case law, the minority of the lawyer's client is treated as a form of "disability." The Comment does note, however, that:

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.

Comment, AZ-ER 1.14, 1. Thus, in J.A.R. v. Superior Court In and For County of Maricopa, 179 Ariz. 267, 877 P.2d 1323 (App. 1994), the Court held that a trial court handling a marital custody dispute had authority to appoint an attorney to represent the interests of the seven and one-half year old child that was the subject of the dispute, and there was no legal impediment to the formation of a valid attorney-client relationship between the child and the attorney appointed.

In Arizona Ethics Opinion No. 86-13, the Committee ruled that an attorney may act as both attorney and guardian ad litem for a minor in dependency proceedings. If a guardian ad litem for the minor has already been appointed, the attorney should nevertheless follow the wishes of the child whenever possible, but if a conflict arises in which the guardian believes that what the child wants is not in the child's best interests, then the matter should be taken up with the court. Id.

In Arizona Ethics Opinion No. 2000-06, however, the Committee considered the situation of a lawyer who had been appointed by the Juvenile Court to serve as guardian ad litem for a juvenile for whom separate counsel had also been appointed. The Committee noted that there are several scenarios where such an appointment might be made, including in proceedings where there was a suggestion that the juvenile might require inpatient mental health evaluation and treatment. The Committee concluded that where the lawyer is appointed as guardian, and separate counsel is representing the juvenile, no attorney-client relationship is created between the attorney so appointed and the juvenile, and the attorney is not bound by the duty of confidentiality imposed by AZ-ER 1.6(a).

1.14:300   Maintaining Client-Lawyer Relationship with Disabled Client

The Comment to AZ-ER 1.14 specifically points out that:

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 does have a legal representative, the lawyer should as far as possible accord the represented person the status of client, particularly in maintaining communication.

Comment, AZ-ER 1.14, 2. Under AZ-ER 1.14(b), if a lawyer reasonably believes that a client cannot adequately act in the client's own interest, the lawyer may seek the appointment of a guardian or take other protective action. Thus, in Arizona Ethics Opinion No. 90-12, the Committee on the Rules of Professional Conduct ("the Committee") held that, if a lawyer suspects a client is unable to adequately act in the client's own best interests, the attorney may take reasonable steps to determine whether a guardian should be appointed for the client, and may even disclose confidential information, without the client's consent to the extent necessary to permit an independent diagnostician to make an assessment of the degree of the client's disability.

In Arizona Ethics Opinion No. 91-18, the Committee on the Rules of Professional Conduct ("the Committee") addressed the issue of the obligations imposed upon an attorney whose client expresses to the attorney an intent to commit suicide. The Committee initially noted that the client's expression of such an intent was a confidential communication ordinarily protected from disclosure under the provisions of AZ-ER 1.6, and initially suggested that the course of action the attorney must take may depend upon whether suicide constitutes a crime, which the Committee deemed an issue of law which it was not empowered to decide. If the attorney faced with such a situation determines that the client's commission of suicide would constitute a crime, then the lawyer would have an obligation, under AZ-ER 1.6(b), to reveal the client's statement of intent "to the extent the lawyer reasonably believes necessary to prevent the client from committing a criminal act . . ." If the lawyer determines that the client's commission of suicide would not constitute the commission of a criminal act, or is uncertain whether or not it will do so, the lawyer nevertheless has an obligation to determine whether the client's threat to commit suicide provides a basis for the formation on the lawyer's part of a reasonable belief that the client cannot adequately act in the client's own best interests. If the lawyer determines that it does, then the lawyer is permitted to take protective action with respect to the client and may, under Arizona Ethics Opinion No. 90-12, reveal the client's statement concerning the intent to commit suicide to an independent diagnostician to permit an assessment of the extent client's disability.

1.14:400   Appointment of Guardian or Other Protective Action

AZ-ER 1.14(b) specifically permits a lawyer to "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" with respect to a client, when the lawyer has formed a reasonable belief that the client is incapable of adequately acting in the client's own best interests. As the Comment to the Rule points out:

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 a 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 ER 1.2(d).

* * * * * * *

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 sometimes 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.

Comment, AZ-ER 1.14, 4, 7.

Under AZ-ER 1.14(b), if a lawyer reasonably believes that a client cannot adequately act in the client's own interest, the lawyer may seek the appointment of a guardian or take other protective action. Thus, in Arizona Ethics Opinion No. 90-12, the Committee on the Rules of Professional Conduct ("the Committee") held that, if a lawyer suspects a client is unable to adequately act in the client's own best interests, the attorney may take reasonable steps to determine whether a guardian should be appointed for the client, and may even disclose confidential information, without the client's consent to the extent necessary to permit an independent diagnostician to make an assessment of the degree of the client's disability.

In Arizona Ethics Opinion No. 86-13, the Committee ruled that an attorney may act as both attorney and guardian ad litem for a minor in dependency proceedings. Thus, in J.A.R. v. Superior Court In and For County of Maricopa, 179 Ariz. 267, 877 P.2d 1323 (App. 1994), the Court held that a trial court handling a marital custody dispute had authority to appoint an attorney to represent the interests of the seven and one-half year old child that was the subject of the dispute, and there was no legal impediment to the formation of a valid attorney-client relationship between the child and the attorney appointed. If a guardian ad litem for the minor has already been appointed, however, the attorney should nevertheless follow the wishes of the child whenever possible, but if a conflict arises in which the guardian believes that what the child wants is not in the child's best interests, then the matter should be taken up with the court. Arizona Ethics Opinion No. 86-13.

Disclosure of Confidential Information in Seeking Protection for Client With Diminished Capacity

AZ-ER 1.14(b) provides the lawyer representing a client suffering from diminished capacity with the authority to seek "reasonably necessary protective action," when the lawyer believes that client cannot act adequately in his or her own best interests, and delineates a variety of alternative options the lawyer may pursue, "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." Pursuit of any of those alternatives, however, will necessarily require the lawyer to reveal information "relating to the representation" of the diminished capacity client which is protected by AZ-ER 1.6.

AZ-ER 1.14(c) resolves that dilemma by providing that, when a lawyer determines that protective action should be sought for a client with diminished capacity, "the lawyer is impliedly authorized under ER 1.6(a) to reveal information about the client . . ." The Rule cautions, however, that such disclosure of confidential information may only be "to the extent reasonably necessary to protect the client's interests."

The Comment to this aspect of the Rule echoes the theme that a decision to reveal confidential information in order to seek protective action for a client with diminished capacity is one that must be approached with caution:

Disclosure of the client's diminished capacity could adversely affect the client's interest. 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 ER 1.6. Therefore, unless authorized to do so the lawyer may not disclose such information. The lawyer may disclose information otherwise protected by ER 1.6 to the extent such disclosure may be required by law. 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.

Comment, AZ-ER 1.14, 8. The fourth sentence of this paragraph of the Comment, which does not appear in the Comment to MR 1.14, was included due to Arizona Ethics opinion No. 2001-02 of the Committee on the Rules of Professional Conduct ("the Committee"). In that opinion, the Committee held that, notwithstanding AZ-ER 1.6, a lawyer was permitted to disclose to the authorities information concerning exploitation or abuse of a vulnerable adult, if required to do so by A.R.S. § 46-454, which the lawyer learns during the course of representing an incapacitated person, a vulnerable adult or someone who owes a fiduciary duty to such a person, even though the lawyer's client does not want the lawyer to report the information.