Conditions for Protective Action

Conditions for Protective Action

Rule 1.14(a) sets the default, and paragraph (b) carves out the exception. A lawyer who reasonably believes that the client has diminished capacity, is at risk of substantial physical, financial, or other harm unless action is taken, and cannot adequately act in the client’s own interest may take reasonably necessary protective action. That action includes consulting individuals or entities able to protect the client and, in appropriate cases, seeking a guardian ad litem, conservator, or guardian.¹

The operative verb is may. Paragraph (a) directs the lawyer to keep the relationship normal; paragraph (b) only permits a departure, so it creates a power and imposes no duty to use it. The permission is narrow because protective action displaces some of the client’s own decision-making. The rule makes that step available when it is warranted and never automatic.

Three conditions, joined by and, must all be present before the lawyer may act, and each tests a different feature of the situation. The first asks about the client’s capacity to make adequately considered decisions, the second about what is at stake if nobody acts, and the third about whether the client can still look after the client’s own interests despite the impairment. A client with diminished capacity who faces no serious risk falls outside paragraph (b), and so does a client who faces serious risk but can still act effectively to avert it.

Diminished capacity alone never opens the door. It is not a general invitation to paternalistically decide what is in the client’s best interests or to disregard the client’s autonomy over the objectives of the representation.² A decision the lawyer finds unwise, or would never make, therefore shows nothing by itself about capacity, danger, or inability.

Reasonable belief runs through all three conditions. The phrase stands at the head of the rule’s sentence and governs each clause after it.³ Reasonably demands more than sincerity: a conviction that the client is incapable or in danger does not suffice if a reasonable lawyer with the same information would not share it. It demands less than certainty, because the question is what a reasonable lawyer could believe on the facts at hand.

Reasonable Belief in Diminished Capacity

The first condition requires that the lawyer reasonably believe the client’s capacity to make adequately considered decisions is diminished.⁴ The rule states that standard without a method for applying it, and the commentary supplies the method. In determining how far the client’s capacity is impaired, the lawyer considers and balances these factors:⁵

• the client’s ability to articulate the reasoning that leads to a decision;
• the variability of the client’s state of mind;
• the client’s ability to appreciate the consequences of a decision;
• the substantive fairness of the decision; and
• the consistency of the decision with the client’s known long-term commitments and values.

The first three factors examine the client’s thinking, and the last two examine its product. A client who can lay out the reasoning behind a choice has shown that the choice came from deliberation, even when the reasons strike the lawyer as weak. Variability matters because impairment often comes and goes: one confused conversation does not establish diminished capacity, and one lucid conversation does not rule it out. Appreciating consequences asks whether the client grasps what the decision will actually do, which is the point of deciding in a considered way at all. The two outcome factors prove less standing alone, since fully competent people make risky and lopsided choices. Substantive fairness gains value when it is read beside the last factor. A decision that fits what the client has valued for decades is probably the client’s own, while one that cuts sharply against those commitments deserves a closer look.

Because the commentary asks the lawyer to balance, no single factor settles the question. A client who gives reasons and understands the consequences but makes an unusual choice may have full capacity. A client whose reasoning collapses under a simple question, whose state of mind swings from one meeting to the next, and whose choice contradicts a lifetime of commitments presents the opposite picture. The balance also has a limit on the lawyer’s side: diminished capacity does not entitle the lawyer to treat the lawyer’s own view of the client’s best interests as the yardstick of sound reasoning.⁶

An exam stem that describes an unusual financial decision invites the question whether the client lacks capacity, and the answer comes from the factors rather than from how unusual the decision looks. When several factors line up the other way, the answer changes.

The evaluation also need not be all-or-nothing. If the client can understand and evaluate some matters but not others, the lawyer accepts the client’s directions on the subjects where the client is competent and takes protective measures only on the rest.⁷ The lawyer therefore asks about the particular decision in front of the client and does not stamp a label on the whole person.

The commentary adds that in appropriate circumstances the lawyer may seek guidance from an appropriate diagnostician.⁸ A clinician can supply information the lawyer cannot produce alone, yet the report does not decide the matter. A diagnosis of dementia can vary enormously depending on the diagnostic methodology used, and the label leaves open whether this client can handle this decision.⁹ The rule words the first condition around what the lawyer reasonably believes,¹⁰ so the lawyer weighs the clinician’s input together with the factors and remains the one who forms the belief. A report that cuts against what the lawyer has seen in meetings is a reason to look again, and it is a verdict in neither direction.

Whatever prompts the concern, the belief must rest on inquiry rather than suspicion. A lawyer who has not tested a hunch against these factors has no reasonable belief to act on.¹¹ The Eugster discipline case, taken up below, shows the cost of skipping that step.

Risk of Substantial Harm

The second condition asks what is at stake if the lawyer does nothing. The lawyer may act only when the client “is at risk of substantial physical, financial or other harm unless action is taken.”¹³ That phrase imposes three limits. The harm must be substantial. It may be physical, financial, or of another kind. And it must be a risk that exists unless action is taken, which makes the outcome depend on the lawyer’s intervention. The first limit is the one most often misapplied.

The gate needs a high threshold because protective action costs the client something. Once the lawyer acts under paragraph (b), the lawyer no longer simply carries out the client’s instructions on the affected subjects, and the lawyer often has to tell third parties about the client’s situation. Every decision carries some chance of a worse result, so a condition that opened for any downside would never close, and ordinary risk would swallow the client’s autonomy. The word substantial keeps the gate shut except where the downside is grave.

The interests the rule has in view are important ones. Authority to act arises when important interests are at stake or when the bodily or financial health of a severely incapacitated person is seriously at risk.¹⁴ Physical and financial harm appear by name because they mark the paradigm cases: the client who cannot keep safe, and the client about to lose savings. The words or other harm leave the list open, so the loss of a home or of a legal right might qualify. The adjective still governs that open-ended category. The catch-all widens the kinds of interest the rule protects without lowering the required seriousness.

A lawyer tempted to intervene should first ask whether the feared outcome is merely a decision the lawyer dislikes. A client whose choices strike the lawyer as ill-considered is not thereby shown to be in danger, and protective action is not a device for saving clients from what the lawyer sees as errors in judgment.¹⁵

The settlement scene involves money, so the dividing line cannot be physical harm versus financial harm. What separates the cases is the size of the loss and whether intervention changes it.

The closing phrase, unless action is taken, ties the harm to inaction, and two consequences follow. First, the lawyer’s authority under paragraph (b) reaches only those actions needed to relieve the client of the risk of substantial harm.¹⁶ A step that does nothing about the threatened loss has no footing in the rule, however sympathetic the lawyer’s motive. Second, the harm has to be one that intervention can plausibly prevent. On the wire-transfer facts, a consultation with a family member or with a bank able to hold the transfer changes the result, which is why the risk counts. A loss that will occur whatever the lawyer does, or that the client could easily avoid unaided, does not fit the phrase.

The rule speaks of a client who is at risk of harm, so the lawyer need not wait for the loss to happen. The commentary reserves the more demanding showing of imminent and irreparable harm for a separate emergency provision that covers a person unable to establish a client-lawyer relationship, a provision taken up later.¹⁷ Even where the harm condition is met, the seriousness of the risk also caps the response: the lawyer should override the client’s wishes only as far as absolutely necessary and should err toward protecting the client’s autonomy to the extent possible.¹⁸ An exam stem that pairs a diminished-capacity client with a decision the lawyer dislikes is therefore asking whether the downside is grave and depends on action, and a modest or speculative loss does not pass that test.

Inability to Act in Own Interest

The third condition requires that the client “cannot adequately act in the client’s own interest.”²⁰ The first two conditions measure capacity and stakes, and this one connects them by asking whether the impairment leaves the client unable to look after the client’s own interests. The verb is cannot, so the question is what the client is able to do. A client who can protect personal interests but chooses differently from the way the lawyer would choose meets no part of this condition. Adequately sets a functional standard: the test is whether the client can act well enough to protect what is at stake, and the lawyer’s preferred outcome is no yardstick.

The American Bar Association’s Standing Committee on Ethics and Professional Responsibility states the consequence directly: “A client who is making decisions that the lawyer considers to be ill-considered is not necessarily unable to act in his own interest, and the lawyer should not seek protective action merely to protect the client from what the lawyer believes are errors in judgment.”²¹ Every adult may make choices that others regard as unwise. If a lawyer’s disagreement could amount to inability, the lawyer’s judgment would replace the client’s whenever the two diverged, and no client could count on the lawyer to carry out an instruction the lawyer disliked. Requiring real inability confines paragraph (b) to the client who cannot protect himself or herself.

re Disciplinary Proceeding Against Eugster shows what happens when a lawyer treats disagreement as inability. The Washington Supreme Court suspended a lawyer who filed a guardianship petition against his own client without a reasonable inquiry into her capacity, after she had resisted his advice and retained new counsel; the dissent would have disbarred him.²² The court admonished that “[a] lawyer’s decision to have her client declared incompetent is a serious act that should be taken only after an appropriate investigation and careful, thoughtful deliberation.”²³ The two events that preceded the petition were a client resisting advice and a client hiring a different lawyer. Each is a choice, and neither shows that she could not look after her own interests; together they describe a client exercising judgment about her own representation. A lawyer who reads such events as signs of incapacity turns the third condition inside out, because the rule asks whether the client is unable to act, and this client had just acted.

Facts of a very different kind satisfy the condition, because the client’s choices are not the problem when the client can make none.

One account of the rule describes the same situation. When a client truly cannot decide pertinent matters alone, and may be unable even to communicate with the lawyer, the lawyer may need to take affirmative action to protect the client’s best interests where important rights or safety are in peril.²⁴ The difference between this client and the client in Eugster lies in what each could do. The one resisted advice and hired a new lawyer, and the other can do neither. A client who keeps some ability to communicate stands closer to the first, so the lawyer should hesitate before intervening while that ability remains.

An exam stem will often supply a client with a diagnosis who rejects the lawyer’s advice, fires the lawyer, or enters a risky transaction, and the temptation is to treat all three conditions as met because the client looks vulnerable. The third condition stays unmet while the client is communicating, deciding, and acting, even when the decisions are poor. It also remains separate from the first condition, because a client can have diminished capacity and still act adequately in the client’s own interest. When all three conditions are present, the lawyer may act, and the sections that follow take up what the lawyer may do and how far the intervention may reach.