Utah: A Lawyer’s Options When a Client with Diminished Capacity Refuses to Act

Utah Rules of Professional Conduct 1.3 and 1.14 (identical to ABA Model Rules 1.3 and 1.14) require lawyers to act diligently and to maintain to the best of the lawyer’s ability a normal client-lawyer relationship. However, it has been recognized that these standards may be difficult to attain when dealing with a client with diminished capacity. Additionally, it is even more difficult to attain when a client with diminished capacity refuses to take necessary actions to reach the client’s goal.

The Utah State Bar Ethics Advisory Committee recently addressed this situation in Opinion 13-03. In that opinion, a lawyer was defending a client’s parental rights in a child welfare case and the client was found to be “permanently criminally incompetent.” The client indicated to the lawyer that she wanted to appeal a decision terminating the client’s parental rights, yet the client refused to sign the Notice of Appeal. Utah law requires that an appellant sign a Notice of Appeal from a juvenile court order.

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The lawyer recognized the client’s refusal to sign the Notice of Appeal as an irrational decision and not the client’s actual wish. The opinion advised that in this type of situation some acceptable routes to adequately accomplish and protect a client’s wishes could include either appointing a guardian ad litem under Rule 1.14 or allowing the lawyer file the appeal without the client’s signature. However, the opinion stated that “it is a strategic decision concerning what exactly lawyer should do to take such protective action.”

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