Distinguished Professor of Law Nina Kohn has helped lead a successful effort to reform the American Bar Association (ABA) Model Rule of Professional Conduct (MRPC) 1.14, which addresses how lawyers work with clients with decision-making limitations.
For more than a decade, Kohn has been working to make the case for reforming MRPC 1.14 through her scholarship and public service work. More recently, she helped lead a group of ABA leaders and legal experts, including other academics, judges, and practicing attorneys, to consider reforms and draft an improved rule. The reformed rule was adopted by the ABA House of Delegates at the ABA’s recent midyear meeting.
“The old ethics rule was both confusing to attorneys and provided them with insufficient guidance on how to deal with the thorny ethical issues that frequently come up when representing a client with cognitive capacity challenges,” Kohn explains. “Worse yet, it inadvertently encouraged some lawyers to make some bad calls when working with clients with cognitive disabilities, while leaving lawyers doing the ‘right thing’ by clients with such disabilities having their conduct questioned—or even threatened with disciplinary action.”
Kohn describes the new rule as “a major step forward for individuals with actual or perceived cognitive disabilities, and others with decision-making limitations, including minors,” said Kohn. “It will also be a terrific boon to lawyers who represent them.”
Kohn predicts that the new ethics rule will be particularly helpful to individuals subject to guardianship or conservatorship. As Kohn explained in a recent Forbes article, the revised provisions “clearly state that lawyers may ethically represent individuals subject to guardianship or conservatorship who wish to challenge or modify that arrangement”—something that courts have sometimes not appreciated.
Other key aspects of the reformed rule include:
- Modernized, less stigmatizing language
- Removal of language that unintentionally encouraged lawyers to pursue guardianship over clients
- Clearer direction on when attorneys can discuss confidential information about clients with disabilities
- Detailed guidance for lawyers working with clients who have surrogate decision-makers
- Specific guidance for attorneys working with minors
- Specific guidance for attorneys working with criminal defendants whose capacity is at issue
More detailed information on these topics can be found in this article, co-written by Kohn and Charlie Sabatino, Aging and Law Consultant and Former Director of the ABA Commission on Law and Aging.
Kohn also wrote about the implications of the new ethics rule at Forbes.com.