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Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.


Pennsylvania Legal Ethics

1.14   Rule 1.14 Client Under a Disability

1.14:100   Comparative Analysis of Pennsylvania Rule

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

1.14:101      Model Rule Comparison

The language of PA-R 1.14 is identical to the language of MR 1.14.

1.14:102      Model Code Comparison

There is no counterpart to this Rule in the Disciplinary Rules of the Code. EC 7-12 states that "Any mental or physical condition of a client that renders him incapable of making a considered judgment on his own behalf casts additional responsibilities upon his lawyer. Where an incompetent is acting through a guardian or other legal representative, a lawyer must look to such representative for those decisions which are normally the prerogative of the client to make. If a client under disability has no legal representative, his lawyer may be compelled in court proceedings to make decisions on behalf of the client. If the client is capable of understanding the matter in question or of contributing to the advancement of his interests, regardless of whether he is legally disqualified from performing certain acts, the lawyer should obtain from him all possible aid. If the disability of a client and the lack of a legal representative compel the lawyer to make decisions for his client, the lawyer should consider all circumstances then prevailing and act with care to safeguard and advance the interests of his client. But obviously a lawyer cannot perform any act or make any decision which the law requires his client to perform or make, either acting for himself if competent or by a duly constituted representative if legally competent.

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

Primary Pennsylvania References: PA Rule 1.14
Background References: ABA Model Rule 1.14, Other Jurisdictions
Commentary: ABA/BNA 31:601, ALI-LGL 35, Wolfram 4.4

If guardian is appointed, lawyer may look to guardian for direction, but disabled client is still the actual client and all lawyer's actions must be in disabled person's best interests. Pa. Eth. Op. 95-179 (1996).

1.14:300   Maintaining Client-Lawyer Relationship with Disabled Client

Primary Pennsylvania References: PA 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

Maintaining normal client-lawyer relationship so far as possible.

Where lawyer has determined that client is mentally competent PA-R 1.14 does not apply. Phila. Eth. Op. 92-11 (undated); See also Pa. Eth. Op. 89-90 (undated) (a lawyer may continue to represent a client who makes a competent decision to refuse medical treatment for a progressively disabling disease and the lawyer may serve as client's guardian ad litem as long as client's wishes are clear).

1.14:400   Appointment of Guardian or Other Protective Action

Primary Pennsylvania References: PA 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

Various Pennsylvania opinions have addressed the propriety of the lawyer's resort to guardianship proceedings in particular circumstances: Pa. Eth. Op. 88-72 (undated) (lawyer who fears client is being taken advantage of by a relative may seek appointment of a guardian if the lawyer believes his client is unable to act in his own interest.; see Phila. Eth. Op. 94-18 (1994) (where there is an existing guardian who cannot or will not adequately act in the clients' best interest, a lawyer would be violating his duty to the minor clients if he did not file a petition for removal of guardians ad litem of the children); see also, Phila. Eth. Op. 96-3 (1996) (appointment of a guardian ad litem if permitted where the lawyer reasonably believes that his minority client's interests are not being adequately protected by his mother); Phila. Eth. Op. 95-1 (1995) (where it is clear to an attorney that his client is unable to adequately consider decisions in connection with the representation due to his mental disability the lawyer can seek the appointment of a guardian). Note PA-R 1.14 allows lawyer to look to guardian for direction, but lawyer must remember that minor or disabled client is the real client and lawyer is obligated to act in this client's best interest. Pa. Eth. Op. 95-179 (1996).