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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.

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Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.

Kentucky Legal Ethics

1.14  Rule 1.14 Client Under a Disability

1.14:100  Comparative Analysis of Kentucky Rule

1.14:101   Model Rule Comparison

In 1989, the Kentucky Supreme Court adopted KRPC 1.14.  Differences between the Kentucky rule and MR 1.14 include the more specific description of when to seek appointment of a guardian in MR 1.14(b).  In addition, MR 1.14(c) incorporates MR 1.6 into this rule.

The commentary of KRPC 1.14 and MR 1.14 are much the same except that MR 1.14 contains a section on taking protection action where a client has a disability {MR 1.14, Comment [5]; MR 1.14, Comment [6]; MR 1.14, Comment [7]} and a section on giving emergency legal assistance {MR 1.14, Comment [9]; MR 1.14, Comment [10]} which are not in the commentary to KRPC 1.14.

1.14:102   Model Code Comparison

There was no counterpart to this Rule in the Disciplinary Rules of the Model Code. EC 7-11 stated that the "responsibilities of a lawyer may vary according to the intelligence, experience, mental condition or age of a client….Examples include the representation of an illiterate or an incompetent." EC 7-12 stated that "[a]ny 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 incompetent."

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

Rule 1.14, Comment [4] notes that if the 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. Comment [5] suggests that the lawyer seek guidance from an appropriate diagnostician if he suspects that the client has a disability and is concerned about disclosure.  [See also Maintaining Client-Lawyer Relationship with Disabled Client, infra, 1.14:300.]

1.14:300  Maintaining Client-Lawyer Relationship with Disabled Client

KRPC 1.14(a) provides that when a client&'s ability to make adequately considered decisions in connection with the representation is impaired, whether because of age, mental disability or some other reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client.  If a disabled client discharges an attorney without warning, the attorney should help the disabled client understand the consequences of the discharge, but should not initiate proceedings for a conservatorship or similar protection of a client except in extreme cases.  KBA E-314 (1986).

1.14:400  Appointment of Guardian or Other Protective Action

KRPC 1.14(b) permits the lawyer to 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.