An ethics opinion for Valentine’s Day?

Roses are red.

Violets are blue.

California has a new ethics opinion about what to do when your client no longer remembers you.

I’m no Langston Hughes or Emily Dickinson. I’m not even at the level of say … Spike Milligan. And since it isn’t dated from what I can tell, I cannot be certain that this ethics opinion was actually issued on February 14, 2022, but it’s close enough to make it a little more fun to write about.

California is a large state. It has many, many, many lawyers. It has many aspects of its rules regulating the practice of law that are if not entirely bespoke, then certainly unusual to lawyers in other jurisdictions that hew more closely to ABA Model Rules. In some ways, that situation has changed a bit given that California adopted new ethics rules as of November 1, 2018, that attempt to, at least, track the numbering and format of the ABA Model Rules and, in many instances, the substance of those rules.

One rule that California did not adopt, however, was a version of ABA Model Rule 1.14 that addresses a lawyer’s obligations when dealing with a client with diminished capacity. Given the problems that can arise in such circumstances, having an actual rule to govern the lawyer’s obligations is critically important. The text of the Model Rule is not unwieldy and spans only three relatively svelte paragraphs. At its core, it stresses three things — (1) the lawyer’s duty is to “as far as reasonably possible” try to “maintain a normal client-lawyer relationship;” (2) when the lawyer has such a client and believes that the client is facing substantial risk of harm, physical, financial or otherwise, or can’t act in their own interest, then the lawyer is empowered to take certain steps to try to protect that client; and (3) if doing what is authorized to protect the client requires disclosing Rule 1.6 confidential information, then the lawyer can do so “but only to the extent reasonably necessary to protect the client’s interests.”

Even with that sort of streamlined guidance, navigating situations with clients when capacity questions exist, particularly when the client’s capacity appears to have declined since the beginning of the representation, can be very, very difficult.

One reason that California may have found it unpalatable to adopt Model Rule 1.14 (or something like it) might have been California’s historical willingness to go so far to protect client confidentiality and privilege that it can be difficult for lawyers sometimes to even confidently defend themselves against allegations that might easily be parried away if only they could disclose what they know about their client’s matter. I have not undertaken a “deep dive” of any sort into the deliberations in California over Model Rule 1.14, so I presume there are a variety of other reasons in play.

Nevertheless, because California didn’t adopt such a rule, the ethics opinion it has now issued to try to provide helpful, and definitive, guidance to California attorneys on this issue spans 20 pages and includes 31 footnotes. You can read the full opinion here.

For those who don’t mind being spoiled about the opinion, the short version of the guidance is nearly identical to what you would get out of Model Rule 1.14 except that instead of authorizing lawyers to disclose confidential information if necessary to help the client, the opinion appears to only let that happen if the lawyer has obtained advanced, informed consent from the client at a time the client still had the capacity to give consent.

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