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Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.


New Jersey Legal Ethics

1.14   Rule 1.14 Client Under a Disability

1.14:100   Comparative Analysis of New Jersey Rule

Primary New Jersey References: NJ Rule 1.14
Background References: ABA Model Rule 1.14, Other Jurisdictions
Commentary:
NJ Commentary: Section 14:5, Michels, New Jersey Attorney Ethics (Gann Law Books, Newark, 2000)

RPC 1.14 provides:

(a) When a client’s ability to make adequately considered decisions in connection with the representation is impaired, whether because of minority, 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 New Jersey Supreme Court interpreted RPC 1.14 in Matter of M.R., 135 N.J. 155 (1994), which involved a developmentally disabled adult’s decision whether to live with her father or her mother. The woman expressed a preference for living with her father. See id. at 159-160. However, the woman’s court-appointed attorney failed to advocate her choice zealously, stating for the record that either household would serve her best interests. See id. at 172-173.

The New Jersey Supreme Court ruled that the attorney had misconstrued his role, stating that “[a]dvocacy that is diluted by excessive concern for the client’s best interests would raise troubling questions for attorneys in an adversarial system.” Id. at 176. Relying on RPC 1.14, the New Jersey Supreme Court stated that the role of an attorney for a disabled person is like that of an attorney for any other client. The lawyer should advocate any decision the client makes, unless the decision is patently absurd or poses an undue risk of harm to the client. See id. The New Jersey Supreme Court recommended the following approach:

[A] declaration of incompetency does not deprive a developmentally-disabled person of the right to make all decisions. The primary duty of the attorney for such a person is to protect that person’s rights, including the right to make decisions on specific matters. Generally, the attorney should advocate any decision made by the developmentally-disabled person. On perceiving a conflict between that person’s preferences and best interests, the attorney may inform the court of the possible need for a guardian ad litem. . . . Our endeavor is to respect everyone’s right of self-determination, including the right of the developmentally-disabled.

Id. at 177-178.

The M.R. Court also observed that the distinction between a guardian ad litem and an attorney is that the guardian evaluates the disabled person’s decisions and determines whether they are consistent with the person’s best interests, while the attorney merely advocates the incompetent’s preferences. See id. at 174-175.

1.14:101      Model Rule Comparison

RPC 1.14 is identical to Model Rule 1.14.

1.14:102      Model Code Comparison

There is no direct counterpart in the New Jersey RPCs.

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

Primary New Jersey References: NJ Rule 1.14
Background References: ABA Model Rule 1.14, Other Jurisdictions
Commentary: ABA/BNA § 31:601, ALI-LGL § 35, Wolfram § 4.4
NJ Commentary:

[The discussion of this topic has not yet been written.]

1.14:300   Maintaining Client-Lawyer Relationship with Disabled Client

Primary New Jersey References: NJ Rule 1.14(a)
Background References: ABA Model Rule 1.14(a), Other Jurisdictions
Commentary: ABA/BNA § 31:601, ALI-LGL § 35, Wolfram § 4.4
NJ Commentary:

[The discussion of this topic has not yet been written.]

1.14:400   Appointment of Guardian or Other Protective Action

Primary New Jersey References: NJ Rule 1.14(b)
Background References: ABA Model Rule 1.14(b), Other Jurisdictions
Commentary: ABA/BNA § 31:601, ALI-LGL § 35, Wolfram § 4.4
NJ Commentary:

[The discussion of this topic has not yet been written.]