Md. R. Att'y 19-301.14
Md. R. Att'y 19-301.14
COMMENT
[1] The typical client-attorney relationship is based on the assumption that the client, when properly advised and assisted, is capable of making decisions about important matters. See Rule 19-300.1. When the client has diminished diminished capacity, however, maintaining the ordinary client-attorney relationship may not be possible in all respects. In particular, a severely incapacitated individual may have limited or no to make legally binding decisions. Nevertheless, to an increasing extent the law recognizes intermediate degrees of capacity. Indeed, a client with diminished capacity often has the ability to understand, deliberate upon, and reach conclusions about matters affecting the client's own well-being. A client with diminished capacity also may have such ability with supported decision-making or other accommodations. For example, it is recognized that some individuals can be quite capable of handling routine financial matters while needing special legal protection concerning more complex transactions. In addition, 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 or their property. Consideration of and, when appropriate, deference to these opinions are especially important in cases involving children in Child In Need of Assistance (CINA) and related Termination of Parental Rights (TPR) and adoption proceedings. With respect to these categories of cases, the Maryland Foster Care Court Improvement Project has prepared Guidelines of Advocacy for Attorneys Representing Children in CINA and Related TPR and Adoption Proceedings. The Guidelines are included in an appendix to the Maryland Rules. Also included in an Appendix to the Maryland Rules are Maryland Guidelines for Practice for Court-Appointed Attorneys Representing Children in Cases Involving Child Custody or Child Access, developed by the Maryland Judicial Conference Committee on Family Law. When representing a minor or alleged disabled person in a guardianship proceeding, the attorney should be familiar with and follow the Maryland Guidelines for Attorneys Representing Minors and Alleged Disabled Persons in Guardianship Proceedings, an appendix to Title 10 of the Maryland Rules.
[2] The fact that a client has diminished capacity or requires supports or accommodations does not lessen the attorney's obligation to treat the client with attention and respect. Even if the individual has a legal representative, the attorney should as far as possible accord the represented individual the status of client, particularly in maintaining communication. If an individual has a legal representative, such as a guardian, attorney in fact, or court-appointed attorney, the individual is not precluded from consulting with or retaining independent counsel to remove or modify the powers of that legal representative.
[3] The client may wish to have family members or other individuals participate in discussions with the attorney to aid and support them in their communication or decision-making. When necessary to assist in the representation, the presence of such individuals generally does not affect the applicability of the attorney-client evidentiary privilege. Nevertheless, the attorney must keep the client's interests foremost and, except for protective action authorized under section (b) of this Rule, must look to the client, and not family members, to make decisions on the client's behalf. The attorney should afford the client the opportunity to communicate privately with the attorney without the presence and influence of others. See Rules 19-301.4 (1.4) and 19-301.6 (a) (1.6).
[4] If a legal representative has already been appointed for the client, the attorney should ordinarily look to the representative for decisions on behalf of the client, upon confirmation with the client of the representative's authority. However, where the client retains the right to carry out an act, or the attorney reasonably believes the client has the ability to make certain decisions, the attorney must respect and advocate for the client's position. For example, an individual under guardianship retains the right to challenge or modify the terms of the individual's guardianship. In matters involving a minor, whether the attorney should look to the parents as natural guardians may depend on the type of proceeding or matter in which the attorney is representing the minor. If the attorney represents the guardian as distinct from the individual under guardianship, and is aware that the guardian is acting adversely to the interest of the individual under guardianship, the attorney may have an obligation to prevent or rectify the guardian's misconduct. See Rule 19-301.2(d) (1.2).
Taking Protective Action--[5] If an attorney reasonably believes that a client is at risk of substantial physical, financial, or other harm unless action is taken, and that a typical client-attorney relationship cannot be maintained as provided in section (a) of this Rule because the client lacks sufficient capacity to communicate or to make adequately considered decisions in connection with the representation, then section (b) of this Rule permits the attorney to take protective measures deemed necessary. Such measures could include: consulting with family members, delaying action if feasible to permit clarification or improvement of circumstances, using voluntary surrogate decision-making tools such as durable powers of attorney, or consulting with support groups, professional services, adult-protective agencies, or other individuals or entities that have the ability to protect the client. In taking any protective action, the attorney, should be guided by such factors as the wishes and values of the client to the extent known, the client's best interests and the goals of intruding into the client's decision-making autonomy to the least extent feasible, maximizing client capacities and respecting the client's family and social connections. In litigation involving the capacity of the client, such as a guardianship proceeding, the attorney should advocate for the client's expressed position when deciding what, if any, protective action should be taken. See Rule 19-301.2 (1.2).
[6] In determining the extent of the client's capacities, the attorney should consider and balance such factors as: the client's ability to articulate reasoning leading to a decision; variability of state of mind and ability to evaluate consequences of a decision; the substantive fairness of a decision; and the consistency of a decision with the known long-term commitments and values of the client. The attorney also should review existing supports and services that enhance a client's decision-making, what factors impede such decision-making, and whether additional supports or accommodations are available or could be made available. Because the assessment of capacities involves more than a diagnosis, the attorney may seek guidance from an appropriate clinician with expertise in assessing the client's relevant cognitive and functional abilities. An attorney does not violate Rule 19-301.6 (1.6) by seeking an assessment provided that the engagement provides for appropriate confidentiality.
[7] Except for cases where the attorney represents a minor or alleged disabled person in a guardianship proceeding, if a legal representative has not been appointed, the attorney should consider whether appointment of a guardian ad litem, conservator or guardian is necessary to protect the client's interests. Thus, if a client with diminished capacity has substantial property that should be sold for the client's benefit, effective completion of the transaction may require appointment of a legal representative. In addition, rules of procedure in litigation sometimes provide that individuals with diminished capacity must be represented by a guardian or next friend if they do not have a general guardian. In many circumstances, however, appointment of a legal representative may be more expensive or traumatic for the client than circumstances in fact require. Evaluation of such circumstances is a matter entrusted to the professional judgment of the attorney. In considering alternatives, however, the attorney should be aware of any law that requires the attorney to advocate the least restrictive action on behalf of the client.
Disclosure of the Client's Condition--[8] Disclosure of the client's diminished capacity could adversely affect the client's interests, which may include constitutional and legal rights. For example, raising the question of diminished capacity could, in some circumstances, lead to proceedings for involuntary commitment. Information relating to the representation is protected by Rule 19-301.6 (1.6). Therefore, unless authorized to do so, the attorney may not disclose such information. When taking protective action pursuant to section (b) of this Rule, the attorney is impliedly authorized to make the necessary disclosures, even when the client directs the attorney to the contrary. Nevertheless, given the risks of disclosure, section (c) of this Rule limits what the attorney may disclose in consulting with other individuals or entities or seeking the appointment of a legal representative. At the very least, the attorney should determine whether it is likely that the individual or entity consulted with will act adversely to the client's interests before discussing matters related to the client. The attorney's position in such cases is an unavoidably difficult one.
Emergency Legal Assistance--[9] In an emergency where the health, safety or a financial interest of an individual with seriously diminished capacity is threatened with imminent and irreparable harm, an attorney may take legal action on behalf of such an individual even though the individual is unable to establish a client-attorney relationship or to make or express considered judgments about the matter, when the individual or another acting in good faith on that individual's behalf has consulted with the attorney. Even in such an emergency, however, the attorney should not act unless the attorney reasonably believes that the individual has no other attorney, agent, or other representative available. The attorney should take legal action on behalf of the individual only to the extent reasonably necessary to maintain the status quo or otherwise avoid imminent and irreparable harm. An attorney who undertakes to represent a an individual in such an exigent situation has the same duties under these Rules as the attorney would with respect to a client.
[10] An attorney who acts on behalf of an individual with seriously diminished capacity in an emergency should keep the confidences of the individual as if dealing with a client, disclosing them only to the extent necessary to accomplish the intended protective action. The attorney should disclose to any tribunal involved and to any other attorney involved the nature of the attorney's relationship with the individual. The attorney should take steps to regularize the relationship or implement other protective solutions as soon as possible.
Model Rules Comparison: Rule 19-301.14 (1.14) is substantially similar to the language of the Ethics 2000 Amendments to the ABA Model Rules of Professional Conduct, with the exception of deleting certain language from sections (a) and (b), retaining elements of existing Maryland language and further revising Comment [1], and further revising Comments [2] through [8] and [10].