ABA Model Rule 1.14: Protective Action and 1.14(c) Disclosure

ABA Model Rule 1.14 tells a lawyer how to represent a client whose ability to make decisions is impaired by age, a cognitive or mental health condition, a disability, or any other cause. The rule’s instruction has two layers: keep the attorney-client relationship as normal as you can, and only when that is not enough to keep the client safe may you take protective action and share limited confidential information to make that action work.

Keep the Relationship Normal First

Subsection (a) is the default rule. When a client’s capacity to make decisions is diminished, the lawyer must, so far as reasonably possible, maintain a conventional attorney-client relationship with that client.¹ A diagnosis never, by itself, justifies sidelining the client from their own case.

In practice the lawyer still owes the full set of ordinary duties: explain the situation clearly enough for the client to participate, keep them informed, and follow their direction on the goals of the representation. What changes is method, not authority. The lawyer may simplify explanations, use visual aids, shorten meetings, or try a different mode of communication. The client remains the decision-maker.

The rule’s comments are explicit that loyalty runs to the client, not to the people around them. Even when relatives or friends are involved, the lawyer looks to the client for decisions, and should give the client the chance to speak privately whenever possible.²

How to Tell if a Client Has Decision-Making Limitations

Before departing from normal practice, the lawyer needs a reasonable basis for believing the client’s capacity is genuinely impaired. The assessment is functional, not clinical. A medical diagnosis does not automatically mean the client lacks capacity for legal decisions, and the absence of one does not guarantee capacity either.

The comments point to two sets of factors. The first set is about how the client is thinking: whether the client can articulate reasons that connect to their goals, whether their mental state fluctuates from one encounter to the next, and whether they appreciate the consequences of the choice in front of them. A person with capacity can accept a risk; a person without it may walk into the same risk without recognizing it exists.

The second set is about the decision itself: whether a proposed transaction is fair on its face, whether the choice is consistent with the client’s long-standing values and commitments, and whether it can be undone. A will can be rewritten. A gift of a house cannot. The higher the stakes and the harder the choice is to reverse, the more probing the lawyer should do before proceeding.

Poor judgment is not the same as incapacity. People with full faculties make bad decisions every day, and the lawyer cannot substitute their own preferences for the client’s just because a choice looks unwise. When direct observation leaves the picture unclear, the lawyer may consult with medical professionals, social workers, or psychologists to better understand the client’s functional abilities.

When the Lawyer Can Take Protective Action

Subsection (b) opens the door to protective action, and it opens it narrowly. Three conditions must all be met: the lawyer reasonably believes the client has diminished decision-making capacity, the client is at risk of substantial physical, financial, or other harm, and the client cannot adequately act in their own interest.¹ Limitations without serious risk do not trigger the authority. Risk without incapacity does not either.

When all three conditions are present, the comments identify a ladder of options, running from least to most intrusive:²

Consulting with family members who can provide informal support or monitoring.
Using a reconsideration period to slow the process down so circumstances can stabilize.
Helping the client set up voluntary surrogate tools such as a durable power of attorney or a trust.
Contacting adult protective services, healthcare providers, or other support organizations.
Seeking the appointment of a guardian ad litem, conservator, or guardian.

The lawyer should start with the least restrictive measure that actually addresses the risk. A limited power of attorney covering a few financial accounts is far preferable to a full guardianship if it solves the problem. The U.S. Department of Justice describes guardianship as a “last resort” to be used only when no suitable alternative exists, because it strips a person of legal rights and independence. Supported decision-making arrangements, now recognized in some form in at least 39 states and the District of Columbia, are another alternative the lawyer should consider before anything that transfers authority away from the client.³

What the Lawyer Can Share Under 1.14(c)

Protective action usually requires disclosing something the lawyer would otherwise have to keep confidential. Subsection (c) provides for that: when the lawyer takes protective action under (b), the lawyer is impliedly authorized to reveal information about the representation to the extent reasonably necessary to protect the client’s interests.¹ This is a narrow exception to Rule 1.6, which otherwise prohibits disclosing information relating to the representation without the client’s informed consent.⁴

The scope is deliberately tight. A lawyer petitioning for a conservatorship should reveal only the specific financial vulnerabilities or cognitive deficits that justify the petition. Unrelated medical history, embarrassing personal details, and anything beyond what is needed to accomplish the protective goal are off limits. The comments warn that disclosing a client’s limitations can itself cause harm, including triggering involuntary commitment proceedings or other adverse legal consequences the client did not anticipate.²

Before disclosing anything, the lawyer should assess whether the recipient is likely to act in the client’s interest. Sharing details with adult protective services is one thing; sharing them with a relative who stands to inherit is quite another. If the client objects, the lawyer must weigh those wishes against the severity of the threatened harm. The bar for overriding an objection is high, and the lawyer should be prepared to justify the decision if challenged.

When the Client Opposes Protective Steps

The hardest cases are the ones where the client actively opposes the measures the lawyer thinks are necessary. The rule draws a firm line. If someone else has petitioned for guardianship or conservatorship and the client opposes it, the lawyer representing the client cannot advocate for the appointment.² In any litigation involving the client’s capacity, the lawyer must advocate for what the client actually says they want, not what the lawyer or the family thinks would be best.

This is where Rule 1.14 parts company with a purely paternalistic view. The rule permits protective action, but it never authorizes the lawyer to become an adversary to the client’s stated wishes in court. Taking protective action also does not automatically end the representation, though it can create conflicts that force withdrawal. The lawyer must inform the client about any protective steps taken and then evaluate honestly whether continuing is workable under the conflict-of-interest rules.²

Family Members Are Not the Client

Rule 1.14 cases often begin with a phone call from a relative, not from the person who needs representation. The lawyer’s first job is to identify the client. The person with decision-making limitations is the client, and the lawyer must establish a direct relationship with that person, not with the family member who made the initial contact.²

Family can participate when the client consents, and their involvement is often useful. It does not change who gives direction. A well-meaning daughter who wants to override her father’s estate plan does not get to steer the lawyer’s actions. The client does.

Acting for Someone Who Isn’t Yet a Client

The comments to Rule 1.14 also address the emergency scenario, when someone with seriously diminished capacity faces an urgent threat before any attorney-client relationship exists. A lawyer may take legal action on that person’s behalf without a formal engagement, but only when a specific set of conditions is met:²

A substantial health, safety, or financial interest is threatened with imminent and irreparable harm.
The person cannot establish an attorney-client relationship or make and communicate an informed judgment about the situation.
Either the person themselves or someone acting in good faith on their behalf has consulted with the lawyer.
The lawyer reasonably believes the person has no other lawyer, agent, or representative available.

Emergency action is limited to what is reasonably necessary to maintain the status quo or prevent the imminent harm. The lawyer owes the same ethical duties as to any client, including confidentiality, and must disclose the unusual nature of the relationship to any court or opposing counsel involved. Once the crisis passes, the lawyer should work either to formalize the relationship or to connect the person with other protective solutions. The ABA’s comments state that a lawyer ordinarily would not seek compensation for emergency actions taken under these provisions.²

1
American Bar Association. Rule 1.14 Client with Decision-Making Limitations
2
American Bar Association. Rule 1.14 Client with Decision-Making Limitations – Comment
3
U.S. Department of Justice. Guardianship Less Restrictive Options
4
American Bar Association. Model Rules of Professional Conduct – Rule 1.6 Confidentiality of Information