Legal Capacity in California: Options Upon Assessment of Diminished Capacity, Part 5 of 6
Options Upon Assessment of Moderate or Severe Capacity Problems
5. Protective Measures and the Limitations Imposed by Bus & Prof Code § 6068 and CA Eth. Op. 1989-112
When the client lacks the capacity required or refuses to take action necessary to protect his or her own well being, the attorney consulted is caught in an ethical “catch 22." The attorney may justifiably believe that some sort of protective action is in the client’s best interest and that some action is required in the immediate future to prevent some clearly impending harm.
There is a range of protective actions that the attorney may consider. Other persons might be involved without the client’s consent, such as medical practitioners, family members, community support networks, nonprofit organizations, and government agencies. The attorney might recommend to a family member or trusted support person that a conservatorship is appropriate. The attorney might even seek to be personally appointed as conservator or guardian ad litem.
Any effort aimed at bringing others into the discussion over whether client has capacity and what to do about it, without the client’s consent, necessarily involves divulging information obtained from the client and observations made of the client in consultations. The California State Bar Standing Committee on Professional Responsibility and Conduct has presumably tied this attorney’s hands by concluding in Ethical Opinion 1989-112 that the “attorney is absolutely prohibited from divulging the client’s secrets gained during the attorney-client relationship, and from acting in any manner whereby the attorney is forced to use such secrets to the client’s disadvantage."  The committee not only prohibited disclosure of confidential communications within the meaning of Evidence Code section 952, but any client “secret" which would be embarrassing or detrimental to the client if disclosed to third parties.  Accordingly, the Committee specifically concluded “that the attorney may not divulge what the attorney has observed of the client’s behavior." 
The primary question at issue in Ethical Opinion 1989-112 is whether an attorney may institute conservatorship proceedings against the client’s consent when the attorney has concluded that the client lacks capacity to act in his own best interest.  The opinion relies on the duty to protect client secrets and the prohibition against representing interests adverse to the client to answer the question with an unqualified “no."  The opinion operates upon the assumption that the attorney faced with the incapacitated client is seeking to represent some family member or other third party in instituting the conservatorship proceedings.  When viewed from this perspective, a strict prohibition against instituting such a proceeding is logical given the likelihood of the third party having interests adverse to the incapacitated client. The opinion does not mention or consider any other option the attorney has; the committee has answered only the issue brought before it. Strictly applying the opinion’s underlying prohibitions against divulgence and representation of the client’s unexpressed best interests to any other option the attorney may have upholds form over substance and renders the attorney powerless to do anything to protect the client’s well being. 
The Bar Association of San Francisco Legal Ethics Committee Opinion 1999-2 provides a collection of authorities as “evidence of a California policy that an attorney for an incompetent person may say and do something other than watch the client self destruct."  This opinion notes that in criminal law, the client’s attorney may institute competency proceedings and offer the court an opinion regarding the client’s competency despite the client’s refusal to consent.  In People v. Bolden, the court held that although the attorney’s opinion was based upon confidential communications, the defendant’s attorney could offer an opinion as to the client’s competency without revealing the client’s secrets because the underlying facts were not disclosed.  The San Francisco opinion also cites a civil case, in which an attorney was denied fees incurred in opposing the conservatorship of an incapacitated person purported to be his client.  The court partially grounded its ruling on the fact that the attorney advocated the desires and positions expressed by a clearly incapacitated client which were contrary to the best interests of her well being and estate.  These sources suggest that when a client has substantial capacity problems and expresses desires that are clearly contrary to the best interests of the client’s well being, that the attorney may be justified in advocating the client’s best interest over the expressed desire.
At common law and under California statutory evidence law, an attorney was permitted to make an otherwise prohibited disclosure of a client’s confidences when that attorney reasonably believed that such disclosure was necessary to prevent the client from committing a criminal act that the attorney reasonably believed will result in the death of or substantial bodily harm to an individual.  In 2003, the legislature altered the evidence statute to remove phrase “client from committing" from the statute.  By this same bill, virtually identical language was inserted into Business and Professions Code section 6068 as an exception to the duty to preserve the client’s secrets and granting the attorney the discretion to reveal confidential information for the purpose of preventing such criminal acts.  The modification extends the confidentiality exception from a scenario where the client is likely to commit a crime to scenarios where the client or some other individual is likely to become a victim of a crime resulting in substantial bodily harm or death.
These recent statutory modifications recognize that attorneys must have some degree of discretion to use confidential information to prevent impending harm. At this point, the legislature has expressly authorized such discretion only when the threatened harm is a crime reasonably likely to occur and reasonably likely to result in substantial bodily harm or death.  The more common situation faced by the attorney performing the informal capacity assessment is that the client will become increasingly unable to care for his own well being, and become increasingly vulnerable to fraud, undue influence and financial abuse.
An attorney compelled to take some protective action might rely upon the sources discussed above to justify such action. When California rules on a subject are silent or obscure, courts may look to ethics opinions and ABA Rules.  Of course, these sources are not binding upon courts.  An avalanche of secondary support is available stemming from the Restatement of the Law Third, The Law Governing Lawyers section 24 and the ABA Model Rule 1.14. These sources expressly advocate that if the attorney reasonably believes the client cannot act in his own interest, the attorney may take protective action including seeking the appointment of a conservator or guardian ad litem.  While there is a California Ethics opinion directly addressing the institution of a conservatorship, California rules are otherwise silent or obscure on the issue of protective actions, conservatorship or otherwise, to protect the well being of an incapacitated client (outside of the criminal law context). 
If the attorney justifiably believes that some sort of protective action is in the best interest of an incapacitated client to prevent some clearly impending harm, the attorney should take only action which is reasonably necessary to prevent that harm.  The attorney should be guided by the wishes and values of the client to the extent known and pursue a reasonable view of the client’s interests as the client would define them if the client had the capacity to make adequately considered decisions.  Such action taken should be preceded by reasonable investigation and should be the least intrusive to the client’s decision making autonomy under the circumstances. 
In taking protective action, the ABA Model Rules impliedly authorized an attorney to reveal information about the client but only to the extent reasonably necessary to carry out the representation and protect the client’s interests.  The comment to Rule 1.14 notes that, due to the risk that divulgence might lead to proceedings for involuntary commitment, “the lawyer should determine whether it is likely that the person or entity consulted with will act adversely to the client's interests before discussing matters related to the client." 
There will be many instances where some form of court supervised intervention is the best solution to the client’s circumstances. California’s conservatorship system has undertaken substantial reforms to protect the autonomy of conservatees.  If such a course clearly appears to be the best means of protecting the client’s well being, the attorney should be able to suggest that investigation for possible conservatorship is appropriate without risking disbarment.  Does such a suggestion strictly constitute the “institution of conservatorship proceedings" prohibited by California Ethical Opinion 1989-112 if the attorney does not bring or represent the party bringing the conservatorship action? Wouldn’t a better solution be to allow the attorney to make the suggestion, then serve as guardian ad litem to ensure that the client’s best interests (as the client would define them if he could) were represented in conservatorship proceedings brought by another party?
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