Len Niehoff is Professor from Practice at the University of Michigan Law School, where he teaches courses in civil procedure, ethics, evidence, and media law, and seminars in appellate advocacy and law & theology. He is also Of Counsel to the Honigman law firm. The opinions expressed here are his own.

Friday, November 5, 2010

Ethics and Alzheimer's

An article in the New York Times reports on new research showing that "one of the first signs of impending dementia is an inability to understand money and credit, contracts and agreements." You can find the article here.

This raises a serious ethical concern for attorneys.

ABA Model Rule of Professional Conduct 1.14, adopted in most states, requires lawyers to try to maintain a normal professional relationship with a client who is functioning under a disability.

And that Rule provides that a lawyer can seek appointment of a guardian, or take other protecive action, only if the lawyer reasonably believes the client cannot act in their own best interest.

The respect for client autonomy reflected in this approach is admirable and, in many cases, workable. But Alzheimer's appears to pose a unique dilemma: by time the lawyer has enough evidence to conclude intervention is necessary, the assets the lawyer seeks to protect may have vaporized.

The issue deserves close study by those who write and enforce the rules of legal ethics.

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