Rule 1.2. (d)

Taking Protective Action

[5] 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. Such 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.

[6] 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.

[7] If a legal representative has not been appointed, the lawyer should consider

whether appointment of a guardian ad litem, conservator or guardian is necessary to

protect the client's interests

ecision; 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.

[7] If a legal representative has not been appointed, the lawyer should consider

whether appointment of a guardian ad litem, conservator 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 if they do not have a

general guardian. In many circumstances, however, appointment of a legal

representative may be more expensive or traumatic for the client than circumstances

in fact require. Evaluation of such circumstances is a matter entrusted to the

professional judgment of the lawyer. In considering alternatives, however, 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 the Client's Condition

[8] 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 1.6. Therefore, unless authorized to do so,

the lawyer may not disclose such information. When taking protective action

pursuant to paragraph (b), the lawyer is impliedly authorized to make the necessary

disclosures, even when the client directs the lawyer to the contrary

cumstances, lead to proceedings for involuntary commitment. Information relating

to the representation is protected by Rule 1.6. Therefore, unless authorized to do so,

the lawyer may not disclose such information. When taking protective action

pursuant to paragraph (b), the lawyer is impliedly authorized to make the necessary

disclosures, even when the client directs the lawyer to the contrary. Nevertheless,

given the risks of disclosure, paragraph (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 that

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 such cases is an

unavoidably difficult one.

Emergency Legal Assistance

[9] In an emergency where the health, safety or a financial interest of a person with

seriously diminished capacity is threatened with imminent and irreparable harm, a

lawyer may take legal action on behalf of such a person even though the person is

unable to establish a client-lawyer relationship or to 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 such an emergency, however,

the lawyer should not act unless the lawyer reasonably believes that the person has no

other lawyer, agent or other representative 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 such an exigent situation has the same duties

under these Rules as the lawyer would with respect to a client

as no

other lawyer, agent or other representative 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 such an exigent situation has the same duties

under these Rules as the lawyer would with respect to a client.

[10] A lawyer who acts on behalf of a person with seriously 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 should disclose to any tribunal involved and to any other counsel

involved the nature of his or her relationship with the person. The lawyer should take

steps to regularize the relationship or implement other protective solutions as soon as

possible. Normally, a lawyer would not seek compensation for such emergency

actions taken.