St. Denis & Davey, P.A.

Legal Malpractice Issues

What if a client is of diminished capacity?

| Jul 15, 2019 | Legal Malpractice Law |

Seeing a loved one work their way through any legal issue in Florida can be nerve-wracking. Your stress is sure to be compounded if that family member or friend suffers from a diminished capacity. The attorney-client relationship is already complex enough without having to deal with the concern that your loved one (either through trauma, inexperience or mental impairments) is unable to make sound decisions on their own. Their attorney must then maintain their obligations to them while ensuring that their best interests are understood and represented. 

Rule 1.14(b) of the American Bar Association’s Model Rules of Professional Conduct state that if an attorney believes that a client’s diminished capacity makes them unable to act in their own interests, they may consult with any other parties that are in a position to make those interests known. That may include you, other family members, your loved one’s caregiver, or their primary care provider. The attorney may also push to have a conservator, guardian or guardian ad litem appointed if they believe it to be necessary. 

Where issues can often occur in working with a client with a diminished capacity is in the sharing of information. Your family member or friend’s attorney may be able to disclose information that would normally be protected under attorney client privilege in such a case, but only to the extent that it helps in matters related to their representation. 

Special considerations should also be made before the attorney acts outside their normal scope. These include the degree which your loved one’s capacity is truly diminished (e.g. if the impairment is temporary, it may be best to postpone action until they have recovered). Any extraordinary action should also only be engaged in when the potential exists for your loved one to experience serious physical or financial harm.