Seattle University School of Law

Carol Vaughn is Senior Attorney at the King County field office of Northwest Justice Project. Her current areas of practice include special education, family, and housing law. She also works with advocates from the CLEAR program to provide them with litigation experience. Prior to joining NJP in 1998, she specialized in Medicaid and elder law as a staff attorney and directing attorney at Evergreen Legal Services (1986 - 1995) and then as an associate with the law firm of Thompson & Howle (1995 - 1998). She received her J.D. degree in 1986 from Harvard Law School.

Ethical Issues of Representing and Dealing with Persons of Diminished or Limited Capacity

(a) When a client’s ability to make adequately considered decisions in connection with the representation is impaired, whether because of minority, mental disability 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 cannot adequately act in the client’s own interest, a lawyer may seek the appointment of a guardian or take other protective action with respect to a client.

(a) A lawyer shall not reveal confidences or secrets relating to representation of a client unless the client consents after consultation, except for disclosures that are impliedly authorized in order to carry out the representation, and except as stated in sections (b) and (c).

(b) A lawyer may reveal such confidences or secrets to the extent the lawyer reasonably believes necessary:

(c) A lawyer may reveal to the tribunal confidences or secrets which disclose any breach of fiduciary responsibility by a client who is a guardian, personal representative, receiver, or other court appointed fiduciary.

1. RCW 4.08.060: Guardian ad Litem for Incapacitated Person. This statute provides in part: “When an incapacitated person is a party to an action in the superior courts he or she shall appear by guardian, or if he or she has no guardian, or in the opinion of the court the guardian is an improper person, the court shall appoint one to act as guardian ad litem.”

1. In re the Welfare of Houts, 7 Wn. App. 476, 499 P.2d 1276 (1972). This case involved the termination of parental rights of two mentally ill parents. The court held that the parents had been denied due process when their attorney was appointed to serve as GAL and where the GAL waived the parents’ right to be present during the proceedings. The court reasoned that an attorney’s authority terminates if his or her client becomes incompetent during the course of representation and that even a duly appointed GAL lacks the authority to waive a significant right belonging to the incompetent person.

2. In re the Marriage of Blakely, 111 Wn. App. 351, 44 P.3d 924 (2002). Division 3 held that it was not abuse of discretion for the trial court to appoint a GAL without the alleged incapacitated person’s participation in that determination. This case discusses RCW 4.08.060 and the Vo case described below.

3. Vo v. Pham, 81 Wn. App. 781, 916 P.2d 462 (1996). In this case, Division 1 of the court of appeals held that the trial court had erred by failing to conduct a hearing to determine whether party litigant was mentally competent or required guardian ad litem, where, during her testimony, she stated several times that she had second personality that she was unable to control and that it was her second personality who was speaking.

4. Flaherty v. Flaherty, 50 Wn.2d 393, 312 P.2d 205 (1957). Where opposing party and his counsel knew that party litigant was incompetent, the opposing party and his counsel were held to have a duty to advise the judge of the condition of the incompetent party litigant.

5. In Re Dill, 60 Wn.2d 148, 372 P.2d 541 (1962). The statutory mandate that an incompetent person can appear in court only by guardian ad litem or by regularly appointed guardian is not satisfied when person under such legal disability is represented by attorney.

6. Graham v. Graham, 40 Wn.2d 64, 240 P.2d 564 (1952). Litigant who is alleged to be incompetent is entitled to a full and fair hearing and an opportunity to defend against the appointment of a guardian ad litem.

ABA commentary regarding the Model ABA Rule on incapacity (Model Rule 1.14) offers a helpful framework for considering the issues raised when representing or dealing with persons who have diminished or limited capacity:

The degree and duration of impairment vary widely, but the lawyer’s fundamental ethical problem is that of approach: Should the lawyer act in accordance with the client’s expressed wishes, if any (the “advocacy” model)? Or, should the lawyer act in what the lawyer considers the client’s best interests (the “best interests” model)? Or, should the lawyer do what the lawyer thinks the client would direct if the client were capable of instructing counsel competently (the “substituted judgment” model)?

1) Client is a public housing tenant under eviction for allegedly threatening Housing Authority staff. Client has lived in public housing since 1989. In your opinion, the client’s defense will turn on whether his version of events is more credible than the account made by Housing Authority staff. In addition, client has a good reasonable accommodation claim and a solid legal argument for dismissal because of irregularities with the public housing grievance hearing.

2) Client has a psychiatric disability (schizophrenia). Housing Authority has known of client’s disability since he first applied for public housing in 1989. Housing Authority alleges that client’s mental illness is too severe to reside in public housing setting and that he needs more structured environment.

3) Client receives mental health services consisting of daily medication monitoring by social worker. Client is compliant with his treatment.

4) Client contacts your office for help. Client exhibits some difficulty in considering decisions connected with the representation. However, he understands that he is under eviction and wants you to help him prevent the loss of his housing. The written retainer agreement indicates that your office will represent client through show cause hearing and any further representation would be subject to a new agreement. Client signs authorization for you to communicate confidential information to his the social worker who is his case manager.

5) You have frequent conversations with client during course of discovery. Sometimes client has trouble understanding what you say to him; sometimes you do not understand what client is saying. You consult client’s social worker, who tells you that in his opinion client understands that he is being evicted and does not want to move.

6) The Housing Authority makes what you consider to be a reasonable settlement offer. You present the offer to the client. You advise the client of the pros and cons of the offer. The client gets hung up on what you consider to be insignificant details and boiler plate. The client perceives the settlement offer as an admission of fault, even though it expressly states the opposite and would retain the client’s housing. The client does not give you clear instructions about whether you are to accept the offer, reject the offer, or make a counter offer.

7) The case is scheduled for a show cause hearing. You prepare the client’s testimony regarding the events that led up to the termination notice. Client does not follow instructions and has difficulty answering the questions that you pose. You give client general instructions for court decorum and client says that he understands and will follow protocol. Client gets agitated when you remind him of the outstanding settlement offer.

8) You meet client at the courthouse prior to the hearing. Client’s social worker is present. Client is very upset. You have never seen client this impaired. You cannot run through client’s questions with him because he cannot focus and the client becomes agitated when you ask him the questions you have prepared. You bring up subject of outstanding settlement offer. Client then loudly accuses you of being on the side of the landlord. The security officer approaches you to determine whether everything is all right, which further confuses the client. You ask client whether he no longer wants you to represent him. He states that he wants you to help him. Privately, you ask the social worker about client’s behavior. Social worker informs you that the client’s agitation and confusion are the result of the stress of the hearing and a medication adjustment. Social worker tells you that client understands the nature of the hearing, but that it is unclear whether client will be able to appropriately participate in the hearing. You ask client whether he would like to try to postpone hearing and he says that it is “God’s will” to proceed. You ask client whether you can tell the court about his disability. Client does not want to discuss his mental health problems and says that he is not crazy and can take care of it.

1 Carol Vaughn is senior attorney of the King County field office of NJP and has practiced law in Washington since 1986. Her current practice areas are family law, housing, and special education. She previously practiced elder law with Evergreen Legal Services and with the private law firm Thompson & Howle.