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Clients with Diminished Capacity

One of the most basic tenets of the lawyer-client relationship is that the lawyer provides advice and recommendations to the client, the client considers the advice and recommendations and then provides instructions to the lawyer. This relationship assumes that the client has the ability to make decisions about legal matters.

When a client has diminished capacity, providing instructions to the lawyer may become tricky. Section 3.2-9 of the Code of Professional Conduct and the commentary that follows it provide guidance.

It starts with the premise that a lawyer must, as far as reasonably possible, maintain a normal lawyer-client relationship when a client’s ability to make decisions is impaired.

The commentary under that section notes that the ability to make decisions can be affected by factors such as age, intelligence, experience and mental and physical health as well as the advice, guidance and support of others. This ability may also change over time and may be dependent on the types of decisions to be made. The question is whether the client “has the ability to understand the information relative to the decision that has to be made and is able to appreciate the reasonably foreseeable consequences of the decision or lack of decision”. As a result, the lawyer must assess whether an impairment means the client can’t give instructions – see section 3.2-9 commentary [1].

If a lawyer believes a person is incapable of giving instructions, the lawyer should generally decline to act. If, however, the lawyer also believes the person has no other agent or representative and failing to act could result in harm, the lawyer may take action on behalf of the person only to the extent necessary to protect the person until a legal representative can be appointed – see section 3.2-9 commentary [2].

The rule and commentary have further guidance on:

  • when capacity issues arise after the lawyer has been retained,
  • what happens when a lawyer disagrees with the representative of a person with diminished capacity, and
  • the conflict between the duty of confidentiality to the client in a situation where a lawyer takes action to protect a client.


Clients with Diminished Capacity: section 3.2-9 (Code of Professional Conduct)

Related Topics:

Confidential Information: section 3.3-1 commentary [10] (Code of Professional Conduct)



(Posted: June 12, 2020)