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We wrote last July about a draft California ethics opinion regarding clients who may have diminished mental capacity.

After receiving public comment, the State Bar’s Standing Committee on Professional Responsibility and Conduct has now finalized Formal Opinion Number 2021-207, which is close in content to the earlier opinion.

Opinion Number 2021-207 is useful resource for all California lawyers who are uncertain about a client or potential client’s mental capacity.  Over the course of twenty pages, it explores the impact of a client’s diminished capacity on the lawyer’s duties of competence, communication, loyalty and nondiscrimination.

California trusts and estates attorneys, in particular, should review the opinion when faced with a potential incapacity situation, mindful that California law is more protective of attorney-client confidentiality than most jurisdictions.

Indeed, as the authors note, “under ABA Model Rules [of Professional Conduct] 1.6 and 1.14, a lawyer for a client with diminished capacity has implied authority to disclose confidential information about the client’s capacity and to take protective measures, including disclosure of confidential information, in circumstances where diminished capacity exposes the client to harm.  (See ABA Formal Opn. 96-404 (1996).)  California’s confidentiality statute and rule of professional conduct bar this approach.”

Scenario 1 in the opinion deals with the thorny issue of whether a lawyer may represent a client in opposing a conservatorship when the evidence shows that the conservatorship is warranted and the lawyer believes that it would protect the client from a substantial risk of harm.  In such a situation, after providing candid advice to the client about the risks involved, the lawyer may take direction from the client and oppose imposition of the conservatorship.  This approach squares with increased scrutiny of California conservatorships as reflected in last year’s Assembly Bill 1194.

On the other hand, Scenario 2 cautions against performing estate planning when the lawyer reasonably concludes that the client lacks even the low level of capacity required for testamentary decisions and is subject to a substantial risk of undue influence.  In Scenario 2, the client wants to revise an estate plan to disinherit the client’s children in favor of a younger companion who recently moved in with the client.  The lawyer reasonably believes that the client would not want to favor the companion but for the client’s diminished capacity.  In this situation, the lawyer’s duty of loyalty weighs in favor of declining to draft testamentary instruments because the client is exposed to exploitation.

Where is the trail to follow through the briar patch?  The authors aptly observe that “[f]ew problems in the law of professional responsibility are more difficult than the issue of a lawyer’s obligations to a client with diminished decision-making capacity.”