skip navigation
search

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Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.


Texas Legal Ethics

1.14   Rule 1.14 Client Under a Disability

1.14:100   Comparative Analysis of Texas Rule

Primary Texas References: TX Rule 1.02 cmts. 12 & 13, TX Rule 1.03 cmts. 3 & 5
Background References: ABA Model Rule 1.14, Other Jurisdictions
Commentary:

1.14:101      Model Rule Comparison

Model Rule 1.14, "Client Under a Disability," sets forth a free-standing rule guiding lawyers when a "client's ability to make adequately considered decisions in connection with a representation is impaired, whether because of minority, mental disability, or some other reason . . .." The rule provides in paragraph (a) that the lawyer shall, "as far as reasonably possible, maintain a normal client-lawyer relationship with the client," and elaborates in paragraph (b) that a lawyer may seek the appointment of a "guardian or take other protective action with respect to the client" if the lawyer "reasonably believes that the client cannot adequately act in the client's own interests."

The Texas Rules do not include a free-standing rule analogous to Model Rule 1.14. Comment 3 to Texas Rule 1.03, "Communication," provides in full:

Ordinarily, the information to be provided is that appropriate for a client who is a comprehending and responsible adult. However, fully informing the client according to this standard may be impractical, as for example, where the client is a child or suffers from mental disability; see paragraph 5. When the client is an organization or group, it is often impossible or inappropriate to inform every one of its members about its legal affairs; ordinarily, the lawyer should address communications to the appropriate officials of the organization. See Rule 1.13. Where many routine matters are involved, a system of limited or occasional reporting may be arranged with the client.

Texas Rules Rule 1.03 cmt. 3.

Comment 5 to Texas Rule 1.03 in turn provides:

In addition to communicating with any legal representative, a lawyer should seek to maintain reasonable communication with a client under a disability, insofar as possible. When a lawyer reasonably believes a client suffers a mental disability or is not legally competent, it may not be possible to maintain the usual attorney-client relationship. Nevertheless, the client may have the ability to understand, deliberate upon, and reach conclusions about some matters affecting the client's own well-being. Furthermore, to an increasing extent the law recognizes intermediate degrees of competence. For example, children's opinions regarding their own custody are given some weight. The fact that a client suffers a disability does not diminish the desirability of treating the client with attention and respect. See also Rule 1.02(e) and Rule 1.05, Comment 17.

Texas Rule 1.03 cmt. 5.

The comments to Texas Rule 1.02, "Scope and Objectives of Representation," also address this general subject. Comment 12 to that rule provides in full:

Paragraph (a) assumes that the lawyer is legally authorized to represent the client. The usual attorney-client relationship is established and maintained by consenting adults who possess the legal capacity to agree to the relationship. Sometimes the relationship can be established only by a legally effective appointment of the lawyer to represent a person. Unless the lawyer is legally authorized to act for a person under a disability, an attorney-client relationship does not exist for the purpose of this rule.

Texas Rules Rule 1.02 cmt. 12.

Comment 13 further elaborates:

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. If a legal representative has not been appointed, paragraph (g) requires a lawyer in some situations to take protective steps, such as initiating the appointment of a guardian. The lawyer should see to such appointment or take other protective steps when it reasonably appears advisable to do so in order to serve the client's best interests. See Rule 1.05(c)(4), (d)(1) and (d)(2)(i) in regard to the lawyer's right to reveal to the court the facts reasonably necessary to secure the guardianship or other protective order.

Texas Rules Rule 1.02 cmt. 13.

Paragraph (g) of Texas Rule 1.02 provides in full:

A lawyer shall take reasonable action to secure the appointment of a guardian or other legal representative for, or seek other protective orders with respect to, a client whenever the lawyer reasonably believes that the client lacks legal competence and that such action should be taken to protect the client.

1.14:102      Model Code Comparison

EC 7-12 to the Model Code touches on clients under disabilities. For further discussion of this subject, see section 1.14:101.

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

Primary Texas References: TX Rule 1.03 cmts. 3 & 5, TX Rule 1.02(g)
Background References: ABA Model Rule 1.14, Other Jurisdictions
Commentary: ABA/BNA 31:601, ALI-LGL 35, Wolfram 4.4

For discussion of this subject, see section 1.14:101.

1.14:300   Maintaining Client-Lawyer Relationship with Disabled Client

Primary Texas References: TX Rule 1.03 cmts. 3 & 5, TX Rule 1.02(g)
Background References: ABA Model Rule 1.14(a), Other Jurisdictions
Commentary: ABA/BNA 31:601, ALI-LGL 35, Wolfram 4.4

For discussion of this subject, see section 1.14:101.

1.14:400   Appointment of Guardian or Other Protective Action

Primary Texas References: TX Rule 1.02(g)
Background References: ABA Model Rule 1.14(b), Other Jurisdictions
Commentary: ABA/BNA 31:601, ALI-LGL 35, Wolfram 4.4

For discussion of this subject, see section 1.14:101.

Copyright
About us
Send email