Representing clients with diminished capacity raises a number of potential ethical and moral issues for attorneys. In the Valley Lawyer article, “Ethics of Representing Clients with Diminished Capacity,” Managing Partner James Fedalen and Litigation Attorney Michael Fedalen address the importance of effective and ethical legal representation for those who are inherently susceptible to exploitation.
Though representing clients with diminished capacity is complicated, their need is great. The current ethics rules of the State Bar of California often limit an attorney’s ability to adequately meet the needs of these clients. For example, California might benefit from permitting attorneys to disclose limited confidential information to avoid serious injury to the estate of a client with diminished capacity.
Attorneys are responsible for following the direction of their clients, so when there is a client with legitimate legal needs but insufficient capacity to provide direction, the need for an appropriate third-party to assist the client is paramount. While there are changes to the California Rules of Professional Conduct that could help alleviate some of these concerns, the difficulties in protecting the rights of clients with diminished capacity require a solution that goes beyond the legal profession.
Until changes occur, there will continue to be a significant number of clients and potential clients who have serious legal needs, but are unable to obtain representation as a result of their diminished capacity.