The Dangers of ABA Model Rule 1.14

Photo by National Cancer Institute on Unsplash

Rachel Harp, Blog Editor, University of Cincinnati Law Review

I. Introduction

The late 20th and early 21st century brought much needed changes to the legal and medical professions. One of the more prominent changes was the shift from paternalism to client- and patient-centered relationships and care.[1] The ethical rules for both professions reflect some of this change, providing a presumption of capacity and reflecting values of autonomy and individual decision-making.[2] Sometimes, however, individuals are unable to make their own decisions regarding their legal representation or healthcare. Lawyers and healthcare professionals are tasked with the ongoing duty of determining mental capacity and decision-making ability of clients and patients.[3]

Rule 1.14 of the American Bar Association’s Model Rules of Professional Conduct (“Model Rules”) provides lawyers with little guidance for determining the capacity of their clients.[4] Its comments and framework still suggest veiled paternalistic approaches, and the criteria provided allow for subjective and potentially discriminatory determinations of capacity.[5] 

II. Legal Ethics

Model Rule 1.14, entitled “Client With Diminished Capacity,” discusses how lawyers should approach representations of minors and other clients with diminished capacity to make decisions in the client’s best interests.[6] The rule instructs lawyers to presume capacity and to maintain a normal attorney-client relationship to the extent possible.[7] The rule also recognizes that a client might only have partial decreased capacity and can make some decisions but not others.[8] Comment 3 contemplates the role of family members and other individuals participating in discussions with the lawyer, while noting that confidentiality under Rule 1.6 must be maintained, and that the lawyer must represent the client’s interests, not the interests of family members.[9]

A lawyer is able to determine if a client has the capacity to make decisions.[10] The lawyer can consider factors such as reasoning, variability of mind, ability to appreciate consequences, and others.[11] While Comments 5-8 mention the possibility of seeking guidance from a diagnostician, the Comments emphasize that the decision about the client’s capacity is the lawyer’s to make, and disclosures to clinicians or mental health professionals should be avoided or minimized under Rule 1.6.[12] If a lawyer determines that a client does have diminished capacity and that a normal client-attorney relationship cannot be maintained, the lawyer is allowed to take protective action, including finding a surrogate, pursuing guardianship or conservatorship proceedings, consulting with family members, or seeking assistance from adult-protective services.[13]

III. Medical Ethics

The AMA’s Opinions on decision-making do not specifically address factors for determining if a patient has the capacity to make healthcare decisions, though the guidelines do discuss the practice of informed consent.[14] Principles of informed consent should be used by physicians to determine if a patient is making a decision voluntarily and that the patient understands the decision and its consequences.[15]

If a patient is unable to make their own healthcare decisions, the physician should identify a surrogate to make the decisions instead.[16] The surrogate will be the person the patient designated to make decisions for them (most likely through a valid healthcare power of attorney) or the closest relative if a designation has not been previously made.[17] If the patient does not have a designated surrogate or a relative that can be found, physicians are instructed to consult an ethics committee or board to appoint a surrogate or third party to serve the patient’s best interests.[18]

IV. Legal Ethics v. Medical Ethics

Both legal and medical professions place an emphasis on independent decision-making and presumed capacity.[19] Both also provide avenues for finding a surrogate decision-maker for clients and patients with diminished capacity and focus on allowing at least partial autonomy and normalcy to the greatest extent possible.[20] While the AMA’s Opinion on physicians’ ethical obligations in determining patient capacity do not specify factors to consider, the section on informed consent is instructive.[21] Similar to legal ethics, it instructs physicians to ensure that patients understand and appreciate the consequences, risks, and benefits of decisions.[22]

It is important to note that medical doctors, unlike lawyers, have some degree of training in psychiatry and mental health.[23] While many physicians making decisions about patient capacity are not psychologists or mental health clinicians, nearly all physicians (particularly younger generations) have some skills and knowledge in determining the capacity and mental wellbeing of their patients.[24] Lawyers do not receive such training yet are still tasked with determining client capacity.

V. The Dangers of Rule 1.14 in Legal Practice and Suggestions for Improvement

Though intended to protect client interests, Rule 1.14 in plain terms opens the door to discrimination against older clients and clients with mental health issues.[25] The Rule allows lawyers, untrained in mental health and psychology, to unilaterally make decisions about their clients’ mental capacities.[26] The Rule attempts to provide guidance by providing a non-exhaustive list of factors to consider, but the factors are vague, flexible, and subjective.[27] These subjective factors allow lawyers’ unconscious biases and stereotypes to play a role in determining client capacity.[28]

Britney Spears’s conservatorship battles demonstrates these dangers. According to Spears, her former attorney, Samuel D. Ingham III, did not allow her to make decisions about her own legal case.[29] Further, Spears expressed that she did not know the legal processes for ending the conservatorship and wanted a different lawyer.[30] While the circumstances of Spears’s attorney-client relationship are mostly unknown, it is confirmed that Spears’s father paid the attorneys on both sides, raising further ethical questions.[31] In a June 23, 2021, public hearing, Spears gave a heartbreaking description of her life under the conservatorship, including forced contraception and medication.[32] Spears emphasized how much she wanted the conservatorship to end.[33] The public hearing raised serious questions about whether Ingham actually advocated on Spears’s behalf. It also appeared to show that Spears’s mental capacity is not diminished, at least not to the extent previously asserted by her father and Ingham. Ingham’s unilateral control over the legal decisions of an arguably mentally competent woman show the dangers of Rule 1.14 in practice.

There are several ways Rule 1.14 can be amended to better protect client autonomy and decrease the possibility of ageism and other forms of discrimination, as in the case of Spears. First, the factors lawyers consider in determining capacity should be clear and objective. The approach of physicians obtaining informed consent can be instructive in these amendments.[34]

Additionally, there should be an extra safeguard. In cases where the lawyer, using objective criteria, determines that a client does have diminished decision-making capacity, the next step should be confirmation of diminished capacity by a mental health professional.[35] This might not be possible in every situation, but the Rule and its comments should allow for more adequate disclosure of confidential issues related to capacity for an appropriate professional to make this determination.[36] One way to streamline this step is to provide a multidisciplinary ethics committee with a mental health professional in each state, city, or bar association.[37] The multidisciplinary committee should be free for ethics consultations, and confidentiality would be maintained to the furthest extent possible.[38] This service would be particularly useful in the fields of public interest and elder law.[39] Well-funded firms with in-house ethics advisors could adopt a similar approach by having an in-house or on-call mental health professional available.

VI. Conclusion

Though the modern practice of law is labeled “client-centered,” Rule 1.14 is a reflection of long held paternalism, allowing lawyers to subjectively and unilaterally make decisions about client capacity.[40] Unlike physicians, lawyers are not trained to make such decisions and might unconsciously stereotype a client. Adopting objective criteria for determining capacity and incorporating an extra safeguard by consulting with a mental health professional will help decrease chances of discrimination and improve client autonomy.[41]

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[1] Marjorie Corman Aaron, Client Science: Advice for Lawyers on Initial Client Interviews, Client Science Course (2013), http://clientsciencecourse.com/wp-content/uploads/2013/11/Advice-for-Lawyers-on-Initial-Client-Interviews.pdf.

[2] Model Rules of Prof’l Conduct r. 1.14 (Am. Bar Ass’n 2021) [hereinafter Rule 1.14]; Chapter 2: Opinions on Consent, Communication, & Decision Making, Am. Med. Ass’n, https://www.ama-assn.org/system/files/2019-06/code-of-medical-ethics-chapter-2.pdf (last visited July 12, 2021).

[3] See supra note 2.

[4] Rule 1.14

[5] Id.; Id. at cmt. 5-7.

[6] Rule 1.14.

[7] Id. at cmt. 1-2.

[8] Id. at cmt. 1.

[9] Id. at cmt. 3. See also Id. at cmt. 8 and Model Rules of Prof’l Conduct r. 1.6 (Am. Bar Ass’n 2021).

[10] See generally Rule 1.14 and Rule 1.14 cmt. 1, 5-6.

[11] Rule 1.14 cmt. 6.

[12] Id. at cmt. 5-8. See also Model Rules of Prof’l Conduct r. 1.6 (Am. Bar Ass’n 2021).

[13] Rule 1.14 cmt. 5.

[14] Chapter 2: Opinions on Consent, Communication, & Decision Making, Am. Med. Ass’n, https://www.ama-assn.org/system/files/2019-06/code-of-medical-ethics-chapter-2.pdf (last visited July 12, 2021).

[14] Id.

[15] Id.

[16] Id.

[17] Id.

[18] Id.

[19] See generally supra note 2.

[20] Supra note 2.

[21] Chapter 2: Opinions on Consent, Communication, & Decision Making, Am. Med. Ass’n, https://www.ama-assn.org/system/files/2019-06/code-of-medical-ethics-chapter-2.pdf (last visited July 12, 2021).

[22] Id. See also Rule 1.14 cmt. 6.

[23] Brendan Murphy, The science of scheduling: When to do key medical school rotations, Am. Med. Ass’n (Dec. 17, 2019), https://www.ama-assn.org/residents-students/medical-school-life/science-scheduling-when-do-key-medical-school-rotations (noting that psychiatry is a required “core” rotation).

[24] Linda Ganzini, Ladislav Volicer, William A. Nelson, Ellen Fox, Arthur R. Derse, Ten Myths About Decision-Making Capacity, J. Am. Med. Dir. Ass’n Vol. 6, Issue 3, S100-S104 (2005), https://doi-org.proxy.libraries.uc.edu/10.1016/j.jamda.2005.03.021.

[25] Thomas Richard Stasi, Note: Reform that Understands Seniors: How Interdisciplinary Services Can Help Solve the Capacity Riddle in Elder Law, 45 U. Mich. J.L. Reform 695, 698-709 (2012); Symposium, Ethics and the Questionably Comptetent Client: What the Model Rules Say and Don’t Say, 9 Stan. L. & Pol’y Rev. 241,242-244 (1998). See also Linda S. Whitton, Article: Ageism: Paternalism and Prejudice, 46 DePaul L. Rev. 453, 476-482 (1997) (discussing ageism in the legal profession generally).

[26] Rule 1.14; Id. at cmt. 5-6.

[27] Rule 1.14 cmt. 6.

[28] See supra note 27.

[29] Joe Coscarelli, Liz Day, Samantha Stark, Britney Spears’s Lawyer Asks to Step Down from Court-Appointed Role, The New York Times (Jul. 6, 2021), https://www.nytimes.com/2021/07/06/arts/music/britney-spears-lawyer-conservatorship.html.

[30] Id.

[31] Id.; Model Rules of Prof’l Conduct r. 1.8(f) (Am. Bar Ass’n 2021) (“A lawyer shall not accept compensation for representing a client from one other than the client unless: (1) the client gives informed consent; (2) there is no interference with the lawyer’s independence of professional judgment or with the client-lawyer relationship; and (3) information relating to the representation of a client is protected as required by Rule 1.6.”). See also The New York Times Presents: Framing Britney Spears, Hulu, FX, The New York Times (2020).

[32] Coscarelli et al., supra note 29; Read Britney Spears’ Statement To The Court In Her Conservatorship Hearing, Nat. Pub. Radio (June 24, 2021), https://www.npr.org/2021/06/24/1009858617/britney-spears-transcript-court-hearing-conservatorship.

[33] Supra note 32.

[34] See Chapter 2: Opinions on Consent, Communication, & Decision Making, Am. Med. Ass’n, https://www.ama-assn.org/system/files/2019-06/code-of-medical-ethics-chapter-2.pdf (last visited July 12, 2021).

[35] Stasi, supra note 25, at 718-725.

[36] Id.

[37] Id. at 722-725.

[38] Id.

[39] Id. at 724.

[40] See supra note 1; Rule 1.14; Id. at cmt. 5-8; Coscarelli et al., supra note 29.

[41] See generally Stasi, supra note 25, at 718-725.