Tuesday, January 22, 2008

Client Under Disability Rule Revisions Proposed In Massachusetts

In the wake of a decision in the case of Care and Protection of Georgette, 439 Mass. 28 (2003), Massachusetts has proposed revisions of its Rule 1.14 (client under disability). The key changes are summarized below:

  "Paragraph (b) is based on the model rule provisions but with two changes. The addition of the phrase "that prevents the client from making an adequately considered decision regarding a specific issue that is part of the representation" is intended to define the initial threshold for when the actions authorized in paragraph (b) will apply. Although the committee believed that the phrase was implied by the language of paragraph (a), it chose to insert the phrase for clarity. The further addition of the phrase "in connection with a representation" in paragraph (b) is intended to make explicit that the lawyer would take protective action in connection with the representation. In the Committee's earlier proposal, paragraph (b) ended with a phrase taken from the current rule, but upon consideration the Committee decided that the point was adequately covered in the revised comments."

Proposed new comment seven sets out a "four option" approach to the representation of a disabled client. There is an interesting dissent of Bar Counsel Connie Vecchione that takes issue with the majority formulation. (Mike Frisch)


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