1995-03

QUESTION:

“This letter requests a formal opinion as to whether the
conduct hereinafter described by an Alabama attorney would
be a violation of any ethical rule under the Alabama Rules
of Professional Conduct, the Alabama Rules of Disciplinary
Procedure, the Alabama Standards for Imposing Lawyer
Discipline, or any law governing ethical behavior in
Alabama.

I would appreciate receiving this opinion, if possible,
before the December 1994 meeting of the Commission.

The attorney has been informed on good authority by a
family
member in the first degree (civil relationship) that a
client or prospective client suffers from and has been
diagnosed with a psychosis or psychiatric disorder known as
bipolar manic depression. The attorney is also informed
that
the client or prospective client is currently in the manic
stage.

May the attorney prepare and deliver legal documents such
as
a power of attorney, deeds, etc. where the attorney-in-fact
or the grantee, respectively, is the client or person
suffering from the psychosis? Same question, except a
lawsuit is proposed by the manic-depressive. If the
attorney
may proceed in either question, what steps should the
attorney take before such preparation and delivery, or
preparation of the lawsuit, respectively?

I cite, not as the sole source, Rule 1.14 of the Alabama
Rules of Professional Conduct, Sec. 94.01 of McElroy-
Gamble,
Alabama Evidence, and Sec. 12-21-165(a), Code of Alabama.

I also enclose several pages from The Merck Manual, 1987
Edition. I am sure the Commission will want to look at the
entire article, in a later edition.”

[A second letter was received from Judge Rite further
amplifying his request as follows:]

“I thank you for your letter of informal opinion of Nov.
1994 on my questions concerning the ethical conduct of an
attorney who has been reliably informed of a potential
client’s mental disability of manic-depression while in the
manic stage. I regret I must ask for a formal opinion, as
I am convinced that the insidious nature of this disease
is not fully appreciated. That is why I suggested in my
original letter that the entire section on this psychiatric
disorder be read, in the latest edition of the Merck
Manual.
In the brief excerpt I sent you, on pp. 1518 and 1519,
words
or derivatives of the words ‘delusions’
and ‘hallucinations’
repeatedly occur. Even we laymen understand those words to
mean fantasy rather than fact. Surely the opinion would not
be the same if the potential client was ‘schizophrenic’.

Without reading an accepted treatise such as the Merck
Manual, many laymen believe that ‘manic-depression’ simply
means the person is sometimes depressed, and isn’t
everyone?
The ’87 Merck article, on p. 1519, says in the ‘full-blown
manic psychosis’ the client’s lack of ‘insight for
inordinate capacity for activity lead to a dangerously
explosive psychotic state.’ Yet, your opinion does not
mention that the ‘lawyer may seek guidance from an
appropriate diagnostician’, which would be a psychiatrist.

I mentioned in my original letter that the attorney knew
that the potential client had been diagnosed, per the
relative, with bipolar manic-depression.

I realize a December 1994 opinion from the Commission is
probably and understandably not possible. I do desire that
the formal opinion, however long it takes, is based on a
full understanding of this disease and consideration of all
the points in my letters.

One further quote from the ’87 Merck Manual, p. 1519 again:
‘Psychomotor acceleration is experienced as racing thoughts
and is manifested by a flight of ideas, which in the
extreme
is difficult to distinguish from the loose association of
the schizophrenic’.

I have always understood that one of the great purposes of
the law is to discourage litigation, particularly useless
litigation. Later remedies of attempting to set aside
documents to and from an incompetent are not adequate
remedies particularly when that litigation could be easily
avoided by a ‘bright-line’ ethics opinion that both makes
common sense and serves the purpose of discouraging useless
or inadequate litigation.

I humbly suggest that leaving too much burden on the
attorney may result in more, not less, legal malpractice
suits. I implore the members of the Commission to study
this
disease in the medical texts before issuing their opinion,
and so recite in their opinion.”

* * *

ANSWER:

A lawyer may seek the appointment of a guardian or take
other protective action if the lawyer reasonably believes
that his or her client cannot adequately act in the
client’s
own interest. This determination must be made by the lawyer
after analysis of all aspects of the situation, including
opinions of medical experts. In dealing with a client with
a
disability, the lawyer has a heightened degree of
professional responsibility to insure that the best
interest
of the client is served. Any doubts should be resolved in
favor of this “best interest”.

DISCUSSION:

Rule 1.14 of the Rules of Professional Conduct provides the
following:

“Rule 1.14 Client Under A Disability

(a) When a client’s ability to make
adequately considered decisions in
connection with the representation
is impaired, whether because of
minority, mental disability or for
some other reason, the lawyer shall,
as far as reasonably possible, maintain
a normal client-lawyer relationship with
the client.

(b) A lawyer may 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.”

The purpose of this Rule is to address those situations
where communications between lawyer and client are
difficult
[subparagraph (a)] or where they are impossible
[subparagraph (b)]. Professor Wolfram describes the
questions involved in such representations as “among the
most perplexing that a lawyer confronts”. Wolfram, Modern
Legal Ethics, Student Edition, p.159, West Publishing Co.,
1986. Similarly, Professors Hazard and Hodes in their
handbook, The Law of Lawyering, §1.14:101, p.439, point out
that “Difficult questions of law and morality continue to
plague this troublesome area. In practice, situations
involving disabled clients do not neatly present distinct
‘levels’ of disability, so that it may not be clear whether
Rule 1.14 has application, or which subsection.
Furthermore,
even when it is clear that Rule 1.14(a) applies, it is
difficult to say how far a lawyer may deviate from a
‘normal’ client-lawyer relationship in any given instance.”

As the difficulty of the situation increases, so too does
the lawyer’s responsibility. “For every degree that
respondent [the lawyer involved] by his testimony and
evidence proved a less than normal mental and functional
capacity on the part of his client …he raised by an
equivalent degree the standard of conduct which the Court
must require of him in his dealings with his client.” In re
Witte, 615 S.W.2d 421, 422 (Mo. 1981), cert. denied 454
U.S.
1025. At some point, subsection (b) provides “a last
resort”
solution permitting the lawyer to seek appointment of a
guardian or to take other protective action. Exactly where
this point is will vary based on the situation. The Comment
to the Rule amplifies this stating: “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.”

There is no bright line between difficult and disabled
clients and, thus, none between the application of
subparagraphs (a) and (b). It can no more be determined by
a layman reading The Merck Manual as can difficult legal
issues be determined by reading Black’s Law Dictionary. It
can and should be made, however, upon consideration of all
aspects of the situation, including medical texts as well
as
opinions of medical experts.

Much of the burden of this decision is placed on the lawyer
who must keep foremost in his mind the increased standard
of
responsibility when dealing with a disabled client. He must
assess all aspects of the situation, including expert
medical opinions, balancing the client’s ability to
communicate and to appreciate the serious decisions to be
made. If the lawyer has doubts, he should resolve those
doubts in a manner that best serves his client. The lawyer
should also appreciate the Court’s increased concern in
matters involving lawyers and their representation of
incompetent clients. “The normal limitations on a lawyer’s
self-enrichment at the expense of a client are applied with
enhanced strictness when the client is a child or otherwise
not capable of making fully informed and voluntary
decisions.” Wolfram, supra, p.159.

Finally, it must be remembered that the Rule does not
provide a solution to all problems attendant to dealing
with
clients with diminished capacity but as Professors Hazard
and Hodes point out, it does provide an intelligible frame
of reference for the lawyer and those who might later judge
his conduct. The Law of Lawyering, §1.14:101, p.439.

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