(a) When a client’s capacity to make adequately considered decisions in connection with a representation is diminished, whether because of minority, mental impairment or for some other reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client.
(b) When the lawyer 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, the lawyer may take reasonably necessary protective action, including consulting with individuals or entities that have the ability to take action to protect the client and, in appropriate cases, seeking the appointment of a fiduciary, including a guardian, curator or tutor, to protect the client’s interests.
(c) Information relating to the representation of a client with diminished capacity is protected by Rule 1.6. When taking protective action pursuant to paragraph (b), the lawyer is impliedly authorized under Rule 1.6(a) to reveal information about the client, but only to the extent reasonably necessary to protect the client’s interests.
The Louisiana Supreme Court adopted this rule on January 21, 2004. It became effective on March 1, 2004, and has not been amended since.
This rule is identical in substance to ABA Model Rule of Professional Conduct 1.14 (2002). The only difference between this rule and the corresponding model rule is the deletion of the terms “guardian ad litem, conservator or guardian,” and the insertion of analogous Louisiana terms.
Paragraph (b): Protective Measures
In 2002, the ABA amended Model Rule 1.14 to provide guidance to lawyers regarding the “protective action” that a lawyer may take short of seeking a guardian. The revision permits a lawyer to “take reasonably necessary protective action, including consulting with individuals or entities that have the ability to take action to protect the client, and, in appropriate cases, seeking the appointment of a guardian ad litem, conservator or guardian.” The ABA believed that the modified provision offers the lawyer flexibility when a client faces substantial risk of harm or when emergency legal assistance is required as described in Comments  and . See ABA Ethics 2000 Commission Revision Notes to Model Rule 1.14 (2002).
Paragraph (c): Limitation on Permissible “Protective Action”
The ABA adopted paragraph (c) to specify the means by which “protective action” should be limited to avoid client harm. This paragraph explicitly recognizes the relationship of Rule 1.14(b) to Rule 1.6, and states that Rule 1.6 allows disclosure of information under Rule 1.14(b) only as “reasonably necessary to protect the client’s interests.” See id.
Comments to ABA Model Rule 1.14
 The normal client-lawyer relationship is based on the assumption that the client, when properly advised and assisted, is capable of making decisions about important matters. When the client is a minor or suffers from a diminished mental capacity, however, maintaining the ordinary client-lawyer relationship may not be possible in all respects. In particular, a severely incapacitated person may have no power to make legally binding decisions. Nevertheless, a client with diminished capacity often has the ability to understand, deliberate upon, and reach conclusions about matters affecting the client’s own well-being. For example, children as young as five or six years of age, and certainly those of ten or twelve, are regarded as having opinions that are entitled to weight in legal proceedings concerning their custody. So also, it is recognized that some persons of advanced age can be quite capable of handling routine financial matters while needing special legal protection concerning major transactions.
 The fact that a client suffers a disability does not diminish the lawyer’s obligation to treat the client with attention and respect. Even if the person has a legal representative, the lawyer should as far as possible accord the represented person the status of client, particularly in maintaining communication.
 The client may wish to have family members or other persons participate in discussions with the lawyer. When necessary to assist in the representation, the presence of such persons generally does not affect the applicability of the attorney-client evidentiary privilege. Nevertheless, the lawyer must keep the client’s interests foremost and, except for protective action authorized under paragraph (b), must to look to the client, and not family members, to make decisions on the client’s behalf.
 If a legal representative has already been appointed for the client, the lawyer should ordinarily look to the representative for decisions on behalf of the client. In matters involving a minor, whether the lawyer should look to the parents as natural guardians may depend on the type of proceeding or matter in which the lawyer is representing the minor. If the lawyer represents the guardian as distinct from the ward, and is aware that the guardian is acting adversely to the ward’s interest, the lawyer may have an obligation to prevent or rectify the guardian’s misconduct. See Rule 1.2(d).
Taking Protective Action
 If a lawyer reasonably believes that a client is at risk of substantial physical, financial or other harm unless action is taken, and that a normal client-lawyer relationship cannot be maintained as provided in paragraph (a) because the client lacks sufficient capacity to communicate or to make adequately considered decisions in connection with the representation, then paragraph (b) permits the lawyer to take protective measures deemed necessary. Such measures could include: consulting with family members, using a reconsideration period to permit clarification or improvement of circumstances, using voluntary surrogate decisionmaking tools such as durable powers of attorney or consulting with support groups, professional services, adult-protective agencies or other individuals or entities that have the ability to protect the client. In taking any protective action, the lawyer should be guided by such factors as the wishes and values of the client to the extent known, the client’s best interests and the goals of intruding into the client’s decisionmaking autonomy to the least extent feasible, maximizing client capacities and respecting the client’s family and social connections.
 In determining the extent of the client’s diminished capacity, the lawyer should consider and balance such factors as: the client’s ability to articulate reasoning leading to a decision, variability of state of mind and ability to appreciate consequences of a decision; the substantive fairness of a decision; and the consistency of a decision with the known long-term commitments and values of the client. In appropriate circumstances, the lawyer may seek guidance from an appropriate diagnostician.
 If a legal representative has not been appointed, the lawyer should consider whether appointment of a guardian ad litem, conservator or guardian is necessary to protect the client’s interests. Thus, if a client with diminished capacity has substantial property that should be sold for the client’s benefit, effective completion of the transaction may require appointment of a legal representative. In addition, rules of procedure in litigation sometimes provide that minors or persons with diminished capacity must be represented by a guardian or next friend if they do not have a general guardian. In many circumstances, however, appointment of a legal representative may be more expensive or traumatic for the client than circumstances in fact require. Evaluation of such circumstances is a matter entrusted to the professional judgment of the lawyer. In considering alternatives, however, the lawyer should be aware of any law that requires the lawyer to advocate the least restrictive action on behalf of the client.
Disclosure of the Client’s Condition
 Disclosure of the client’s diminished capacity could adversely affect the client’s interests. For example, raising the question of diminished capacity could, in some circumstances, lead to proceedings for involuntary commitment. Information relating to the representation is protected by Rule 1.6. Therefore, unless authorized to do so, the lawyer may not disclose such information. When taking protective action pursuant to paragraph (b), the lawyer is impliedly authorized to make the necessary disclosures, even when the client directs the lawyer to the contrary. Nevertheless, given the risks of disclosure, paragraph (c) limits what the lawyer may disclose in consulting with other individuals or entities or seeking the appointment of a legal representative. At the very least, 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. The lawyer’s position in such cases is an unavoidably difficult one.
Emergency Legal Assistance
 In an emergency where the health, safety or a financial interest of a person with seriously diminished capacity is threatened with imminent and irreparable harm, a lawyer may take legal action on behalf of such a person even though the person is unable to establish a client-lawyer relationship or to make or express considered judgments about the matter, when the person or another acting in good faith on that person’s behalf has consulted with the lawyer. Even in such an emergency, however, the lawyer should not act unless the lawyer reasonably believes that the person has no other lawyer, agent or other representative available. The lawyer should take legal action on behalf of the person only to the extent reasonably necessary to maintain the status quo or otherwise avoid imminent and irreparable harm. A lawyer who undertakes to represent a person in such an exigent situation has the same duties under these Rules as the lawyer would with respect to a client.
 A lawyer who acts on behalf of a person with seriously diminished capacity in an emergency should keep the confidences of the person as if dealing with a client, disclosing them only to the extent necessary to accomplish the intended protective action. The lawyer should disclose to any tribunal involved and to any other counsel involved the nature of his or her relationship with the person. The lawyer should take steps to regularize the relationship or implement other protective solutions as soon as possible. Normally, a lawyer would not seek compensation for such emergency actions taken.
Dealing with an incapacitated, or potentially incapacitated, client presents difficult, and sometimes intractable, issues. Paragraph (a) of this rule directs the lawyer to maintain a normal lawyer-client relationship with the client if at all possible. Thus, even if a client appears to be moderately or intermittently impaired, the lawyer must communicate and consult with the client just as the lawyer would with any other client.
However, if the lawyer reasonably believes that the impairment has substantially affected the client’s ability consistently to make reasoned decisions regarding the matter, the lawyer should consider seeking the appointment of a curator, tutor, or other legal representative. In deciding whether this or similar action is appropriate, the lawyer generally should pursue the “least restrictive action” necessitated by the circumstances. See ABA Comm. on Ethics and Professional Responsibility, Formal Op. 96-404 (1996). Once a curator or tutor has qualified for office and has received appropriate letters from the court, the lawyer generally should seek direction from that fiduciary rather than from the incapacitated client. Nevertheless, vis-à-vis the fiduciary and the incapacitated person, the “client” remains the incapacitated person for purposes of determining whose best interest should be protected.
A lawyer representing a minor is entitled to learn through discovery the location of the lawyer’s client, even though the client is in foster care. See In re Genusa, 381 So. 2d 504, 506 (La. 1980). Moreover, a lawyer representing a child who has no legal representative “to whom the attorney may look in making decisions,” may be “forced to make them himself.” Id. at 505. In so doing, the lawyer should “consider all the circumstances,” and act in the best interests of the client. Id.
The Louisiana Supreme Court imposed disbarment where a lawyer’s violation of Rule 1.14 was “egregious in nature” because he intentionally used his legal skills to take advantage of an “obviously vulnerable victim.” In re Cofield, 937 So. 2d 330, 343 (La. 2006) (lawyer breached his fiduciary obligations as a trustee for a mentally-disabled client, engaged in questionable transactions with the client, and attempted to thwart attempts by the client’s family to remove the lawyer as trustee) (citing In re Letellier, 742 So. 2d 544 (La. 1999)); see also, In re Maxwell, 44 So. 2d 668, 675 (La. 2010) (permanently disbarring lawyer for misconduct towards incapacitated client); Maunsel W. Hickey et al., Incapacity of Clients or Family Members, 1 La. Prac. Est. Plan. § 4:150 (2d ed. 2009).
This page was updated on January 12, 2015.