Rule 4-1.14 — Client with Diminished Capacity

Comment (verbatim from The Florida Bar)

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 has diminished capacity, however, maintaining
the ordinary client-lawyer relationship may not be possible in all
respects. In particular, an incapacitated person may have no power
to make legally binding decisions. Nevertheless, a client with
diminished capacity often has the ability to understand, deliberate
on, and reach conclusions about matters affecting the client’s own
well-being. For example, children as young as 5 or 6 years of age,
and certainly those of 10 or 12, are regarded as having opinions
that are entitled to weight in legal proceedings concerning their
custody. Some persons of advanced age are capable of handling
routine financial matters while needing special legal protection
concerning major transactions.
That a client has diminished capacity 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 these persons furthers
the rendition of legal services to the client and does not waive the
attorney-client privilege. Nevertheless, the lawyer must keep the
client’s interests foremost and, except for protective action
authorized under subdivision (b), must look to the client, and not
family members, to make decisions on the client’s behalf. A lawyer
should be mindful of protecting the privilege when taking protective
action.
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 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 4-1.2(d);
Saadeh v. Connors, 166 So. 3d 959 (Fla. 4th DCA 2015); Fla. AGO
96-94, 1996 WL 680981.
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 subdivision (a) because the client lacks
sufficient capacity to communicate or make adequately considered
decisions in connection with the representation, then subdivision
(b) permits the lawyer to take protective measures deemed
necessary. These measures could include: consulting with family
members, using a reconsideration period to permit clarification or
improvement of circumstances, using voluntary surrogate decision-
making 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 decision-making autonomy to the least extent feasible,
maximizing client capacities, and respecting the client’s family and
social connections. Which factors the lawyer chooses to be guided
by will depend on the nature of the protective action to be taken,
some issues being governed by the client’s substituted judgment
and others by the client’s best interests.
Whether the client’s capacity has diminished may be shown by
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 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. In many circumstances, however,
appointment of a legal representative may be more expensive or
traumatic for the client than circumstances require. Evaluation of
circumstances is a matter entrusted to the lawyer’s professional
judgment. In considering alternatives, 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 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 4-1.6. Therefore, unless
authorized to do so, the lawyer may not disclose confidential
information. When taking protective action under subdivision (b),
the lawyer is impliedly authorized to make the necessary
disclosures. Nevertheless, given the risks of disclosure, subdivision
(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 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 these cases is an unavoidably
difficult one.
Emergency legal assistance
A lawyer may, but is not required to, take legal action to
protect a person with diminished capacity who is threatened with
imminent and irreparable harm to the person’s health, safety, or
financial interests, even though the person is unable to establish a
client-lawyer relationship or 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 an
emergency, however, the lawyer should not act unless the lawyer
reasonably believes the person has no alternative 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 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 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
may disclose to any tribunal involved and to any other counsel
involved the nature of his or her relationship with the person while
maintaining the person’s confidential information.

Amended July 23, 1992, effective January 1, 1993 (605 So.2d 252);
amended March 3, 2022, effective May 2, 2022 (SC20-1467).