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Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.


Oregon Legal Ethics

1.14   Rule 1.14 Client Under a Disability

1.14:100   Comparative Analysis of Oregon Rule

Primary OR References:
Background References: ABA Model Rule 1.14, Other Jurisdictions
Commentary:
OR Commentary:

1.14:101      Model Rule Comparison

As with the ABA Model Code, the DRs do not include a counterpart to MR 1.14.

1.14:102      Model Code Comparison

As with the ABA Model Code, the DRs do not include a counterpart to MR 1.14.

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

Primary OR References:
Background References: ABA Model Rule 1.14, Other Jurisdictions
Commentary: ABA/BNA § 31:601, ALI-LGL § 24, Wolfram § 4.4
OR Commentary: EOL ch 25

A threshold question in establishing an attorney-client relationship with a client is whether the client is legally competent to make and articulate decisions. There is no absolute legal standard for determining the capacity of an adult. First, the attorney must form an opinion about the client’s capacity, separate from a clinical diagnosis or statements from family members about the client’s mental capacity. This determination should be based on personal observations as well as contacts with friends, family, and clinical examinations by other professionals, if appropriate. A lawyer should presume that an adult client has the necessary mental competency to make legal choices, then critically assess whether that is true. Even a client who has had a guardian appointed is not presumed to be incompetent. See ORS 125.300(2); First Christian Church v. McReynolds, 194 Or 68, 73-74, 241 P2d 135 (1952). Oregon case law presumes a person to be competent. Van v. Van, 14 Or App 575, 578, 513 P2d 1205 (1973).

The attorney should understand the standards for the capacity required to perform legal acts and what steps can be taken to maximize a client’s decision-making ability. Further, the ethical obligations of the attorney vary widely with the ability of the client to evaluate the attorney’s advice and give the attorney direction. In any case, the attorney’s role is to advise the client, not to decide for the client.

Competency should be viewed as a flexible concept subject to many factors. The lawyer must view competency in terms of the client’s ability to perform a specific task, paying particular attention to the client’s decision-making process as it relates to the substance of the act to be taken. Consulting a mental health professional as to the client’s capacity gives rise to other issues the lawyer should consider and address, e.g., a client must have capacity to consent to such an evaluation.

Although no Oregon cases address the capacity required to create a valid power of attorney, the Oregon legislature has expressly authorized the use of durable powers of attorney, which, by their own terms, survive the disability of the principal. ORS 127.005(1)-(2).

1.14:300   Maintaining Client-Lawyer Relationship with Disabled Client

Primary OR References: DR 7-101(C)
Background References: ABA Model Rule 1.14(a), Other Jurisdictions
Commentary: ABA/BNA § 31:601, ALI-LGL § 24, Wolfram § 4.4
OR Commentary: EOL § 25.23

The DRs are interpreted to require a lawyer to endeavor to maintain a normal attorney-client relationship, to the extent practicable.

1.14:400   Appointment of Guardian or Other Protective Action

Primary OR References: DR 7-101(C)
Background References: ABA Model Rule 1.14(b), Other Jurisdictions
Commentary: ABA/BNA § 31:601, ALI-LGL § 24, Wolfram § 4.4
OR Commentary: EOL §§ 25.17-.20

DR 7-101(C) permits a lawyer to “seek the appointment of a guardian or take other protective action which is least restrictive with respect to a client only when the lawyer reasonably believes that the client cannot adequately act in the client’s own interest, whether because of minority, mental disability or for some other reason.” See, e.g., OSB Legal Ethics Op No 1991-41 (attorney who has represented a client on business matters for number of years and recently observed extraordinary behavior by client that appears contrary to client’s own best interests may take reasonable action to protect client’s interests); see also Transcript, Oregon State Bar Annual Meeting, at 144-73 (1985).

“Guardian” applies only to the guardianship of a minor or otherwise “incapacitated” person, meaning a person whose ability to receive and evaluate information or communicate decisions is impaired to such an extent that the person presently lacks the capacity to meet the essential requirements for his or her physical health or safety or to manage his or her financial resources. ORS 125.005(4)-(5). A guardianship cannot be imposed on a person without a judicial finding of incapacity.