The normal client-lawyer relationship is based on the assumption that the client, when properly
advised and assisted, is capable of making decisions about important matters. When the client is
a minor or suffers from a mental disorder or disability, however, maintaining the ordinary client-lawyer relationship may not be possible in all respects. In particular, an incapacitated person
may have no power to make legally binding decisions. Nevertheless, a client lacking legal
competence often has the ability to understand, deliberate upon, and reach conclusions about
matters affecting the client’s own well-being. Furthermore, to an increasing extent the law
recognizes intermediate degrees of competence. For example, children as young as five or six
years of age, and certainly those of ten or twelve, are regarded as having opinions that are
entitled to weight in legal proceedings concerning their custody. So also, it is recognized that
some persons of advanced age can be quite capable of handling routine financial matters while
needing special legal protection concerning major transactions.
The fact that a client suffers a disability does not diminish the lawyer’s obligation to treat the
client with attention and respect. If the person has no guardian or legal representative, the lawyer
often must act de facto as guardian. Even if the person does have a legal representative, the
lawyer should as far as possible accord the represented person the status of client, particularly in
maintaining communication.
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, the lawyer should see to such an appointment where it would serve the client’s
best interests. Thus, if a disabled client has substantial property that should be sold for the
client’s benefit, effective completion of the transaction ordinarily requires appointment of a legal
representative. In many circumstances, however, appointment of a legal representative may be
expensive or traumatic for the client. Evaluation of these considerations is a matter of
professional judgment on the lawyer’s part.
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. See Rule 1.2(c).
If the lawyer seeks the appointment of a legal representative for the client, the filing of the
request itself, together with the facts upon which it is predicated, may constitute the disclosure of
confidential information which could be used against the client. If the court to whom the matter
is submitted thereafter determines that a legal representative is not necessary, the harm befalling
the client as the result of the disclosure may be irreparable. Consequently, consideration should
be given to initially filing the petition seeking the appointment of a legal representative ex parte
so that the court can decide how best to proceed to minimize the potential adverse consequences
to the client by, for example, issuing a protective order limiting the disclosure of the confidential
information upon which the request is predicated.
Disclosure of the Client’s Condition.
Rules of procedure in litigation generally provide that minors or persons suffering mental
disability shall be represented by a guardian or next friend if they do not have a general guardian.
However, disclosure of the client’s disability can adversely affect the client’s interests. For
example, raising the question of disability could, in some circumstances, lead to proceedings for
involuntary commitment. The lawyer’s position in such cases is an unavoidably difficult one.
The lawyer may seek guidance from an appropriate diagnostician.
