Listening to clients seems like mostly an affirmative duty, if only an implied one. But in writing about lawyers’ duty *not* to listen to represented parties, I began to wonder about the limits of a lawyer’s duty to listen to clients as well:
Can a lawyer ever choose not to hear what the client has to say?
Can a lawyer be present with a client and let the client talk out loud, but choose not to really listen to or process what the client is saying?
Can the lawyer listen to what the client is saying but choose not to act on it? Does the lawyer ever have a duty not to act on what the client says?
The main area where a lawyer might have the ethical discretion not to listen to a client, is in dealing with clients who have diminished capacity. Model Rule of Professional Conduct 1.14 sets out a lawyer’s obligations and options in representing clients with diminished capacity:
(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 guardian ad litem, conservator or guardian.
(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.
As the language shows, the rule has several guiding principles:
- preserving a lawyer-client relationship that is as close as possible to a relationship not involving diminished capacity
- allowing the lawyer to seek help from third parties when necessary
- not allowing the lawyer to substitute his or her judgment for the best interest of the client, as Elizabeth Laffitte points out in her article Model Rule 1.14: The Well-intended Rule Still Leaves Some Questions Unanswered (LexisNexis).
Echoing and developing Rule 1.14(a)’s requirement of a normal client-lawyer relationship, comment 2 specifically focuses maintaining communications:
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 rule is thus quite clear that the lawyer has the same ethical duty to listen to the client as applies to clients without diminished capacity. The question then becomes how to carry out this duty for a client with diminished capacity.
Choosing not to hear
For example, what if a client has sporadically compromised mental states—times when the lawyer can barely follow, much less understand, what the client is saying? Can the lawyer treat the client with attention and respect while also effectively choosing not to hear what the client has to say?
Good lawyers recognize and accommodate these peaks and valleys in clients’ abilities to communicate.
“Many times, a client may have diminished capacity, but still be pretty lucid at certain times during the day,” notes attorney Adrienne Ashby of the Georgia Senior Legal Hotline, a project of Atlanta Legal Aid and other Georgia agencies.
Comment 6 to Model Rule 1.14 explicitly instructs lawyers to take into account their clients’ “variability of state of mind” as well as their known long-term goals:
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.
Thus, once it becomes clear a client is in a temporarily compromised state of mind, a lawyer could indeed choose neither to hear nor listen to a client. Ashby suggests that “[a]n attorney would do well to try to communicate with the client during the lucid times, so as to try to ensure that what she hears from the client is something that she can act upon.”
Choosing not to listen to contradictory statements
A different hazard may arise when the client seems lucid yet makes contradictory statements in the same conversation. Under Rule 1.14, the lawyer cannot substitute his or her own judgment about the client’s best interests. But can the lawyer selectively listen, giving greater weight to the portions of the conversation that the lawyer believes to be more in the client’s own best interests?
Better for the client and less risky for the lawyer would be to seek clarification using listening techniques such as the active-listening response of rephrasing what you have heard:
“Mr. Jones, you said earlier that you would like to put your daughter’s name on your retirement account so that she can use the money for the grandchildren. But then you stated that you wish to disown your daughter and remove her from all your accounts entirely. It is not possible to do both of these things. Which would you like to do?”
Using active listening in this way permits the lawyer to pinpoint areas of uncertainty and also to counsel the client on proceeding.
Listening to third parties
Clients who may have diminished capacity may have family, friends, or others assisting them with their legal affairs. From her work on the Georgia Senior Legal Hotline, attorney Adrienne Ashby describes a common scenario: “The client contacts me to discuss a legal issue, and there is a family member in the background ‘coaching’ them or filling in what the client leaves out. It becomes really hard not to listen to this family member and to only listen to the client. It is even harder when the client repeats what the person says.”
The ethics of this situation are fraught, writes Stanley Herr in Representation of Clients with Disabilities: Issues of Ethics and Control (Hein Online).
On the one hand, family members and close friends know the client and often do have the client’s best interests in mind; they may be the only voice that can fully speak about the client’s values. Thus listening to these voices can be indispensable.
But on the other hand, the voice of the client should remain paramount. Conflicts of interest abound in these situations, Herr writes, “especially where institutionalization, control of financial resources, or other life-determining choices are at issue.”
Comment 3 to Model Rule 1.14 acknowledges this exact situation and allows friends and family to assist. Yet the client’s interests and the client’s decisions must remain paramount:
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.
Disregarding what the client has said
What if the client makes a clear, lucid statement that appears to run totally against the client’s interest? The lawyer must evaluate both the client’s ability to communicate as well as the client’s decision-making ability, under comment 5 to Model Rule 1.14:
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.
The lawyer has a menu of options under Model Rule 1.14(b), although none of them is easy. Comment 5 provides an overview:
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.
The option to use a “reconsideration period to permit clarification or improvement of circumstances” suggests that the lawyer may indeed choose not to act upon what the client has said he or she wants to do—at least for a while.
These situations are too sensitive for a rigid rule about what a lawyer must listen to or disregard. Rule 1.14(a) says the lawyer “shall” maintain a normal client-lawyer relationship to the extent possible. Rule 1.14(b) gives the lawyer the option to take steps when the client is at risk. Rule 1.14(c) clarifies that the lawyer must maintain client confidences except when necessary to protect the client’s interest under Rule 1.14(b). There are no neat solutions and a lot of judgment involved. Listening with discernment is a crucial part of that judgment.
I hope this post will open up an opportunity for lawyers to discuss their listening challenges—and possible solutions—in representing clients with diminished capacity. Thank you.