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PROPOSED RULE 1.14
CLIENT UNDER A DISABILITY
representation is impaired, whether because of minority, mental disability or for some other reason,
the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the
client.
a client, only when the lawyer reasonably believes that the client cannot adequately act in the client's
own interest.
[1] The normal client-lawyer relationship is based on the assumption that the client, when
properly advised and assisted, is capable of making decisions about important matters. When the
client is a minor or suffers from a mental disorder or disability, however, maintaining the ordinary
client-lawyer relationship may not be possible in all respects. In particular, an incapacitated person
may have no power to make legally binding decisions. Nevertheless, a client lacking legal
competence often has the ability to understand, deliberate upon, and reach conclusions about
matters affecting the client's own well-being. Furthermore, to an increasing extent the law
recognizes intermediate degrees of competence. For example, children as young as five or six years
of age, and certainly those of ten or twelve, are regarded as having opinions that are entitled to
weight in legal proceedings concerning their custody. So also, it is recognized that some persons of
advanced age can be quite capable of handling routine financial matters while needing special legal
protection concerning major transactions.
[2] The fact that a client suffers a disability does not diminish the lawyer's obligation to treat
the client with attention and respect. If the person has no guardian or legal representative, the lawyer
often must act as de facto guardian. Even if the person does have a legal representative, the lawyer
should as far as possible accord the represented person the status of client, particularly in
maintaining communication.
[3] If a legal representative has already been appointed for the client, the lawyer should
ordinarily look to the representative for decisions on behalf of the client. If a legal representative has
not been appointed, the lawyer should see to such an appointment where it would serve the client's
best interests. Thus, if a disabled client has substantial property that should be sold for the client's
benefit, effective completion of the transaction ordinarily requires appointment of a legal
representative. In many circumstances, however, appointment of a legal representative may be
expensive or traumatic for the client. Evaluation of these considerations is a matter of professional
judgment on the lawyer's part.
[4] If the lawyer represents the guardian as distinct from the ward, and is aware that the
guardian is acting adversely to the ward's interest, the lawyer may have an obligation to prevent or
rectify the guardian's misconduct. See Rule 1.2(d).
[5] Rules of procedure in litigation generally provide that minors or persons suffering
mental disability shall be represented by a guardian or next friend if they do not have a general
guardian. However, disclosure of the client's disability can adversely affect the client's interests. For
involuntary commitment. The lawyer's position in such cases is an unavoidably difficult one. The
lawyer may seek guidance from an appropriate diagnostician.
[6] If the health, safety or financial interest of a person under a disability is threatened with
imminent and irreparable harm, a lawyer may take legal action on behalf of such a person even
though the person is unable to establish a client-lawyer relationship or to make or express
considered judgments about the matter, when the disabled person or another acting in good faith on
the person’s behalf has consulted the lawyer. Even in such a situation, however, the lawyer should
not act unless the lawyer reasonably believes that the person has no other lawyer, agent or other
representative available. The lawyer should take legal action on behalf of the disabled person only
to the extent reasonably necessary to maintain the status quo or otherwise avoid imminent and
irreparable harm. A lawyer who undertakes to represent a person in such an exigent situation has
the same duties under these Rules as the lawyer would with respect to a client.
[7] A lawyer who acts on behalf of a disabled person threatened with imminent and
irreparable harm should keep the confidences of the disabled person as if dealing with a client,
disclosing them only to the extent necessary to accomplish the intended protective action. The
lawyer should disclose to any tribunal involved and to any other counsel involved the nature of his
or her relationship with the disabled person. The lawyer should take steps to regularize the
relationship or implement other protective solutions as soon as possible. Normally, a lawyer would
not seek compensation for such actions taken on behalf of a disabled person.
See Rule 1.0(i)
“Reasonably Believes”See Rule 1.0(j)
There is no counterpart to the Proposed Rule in the Disciplinary Rules. EC 7-11 states that
the "responsibilities of a lawyer may vary according to the intelligence, experience, mental condition
or age of a client. Examples include the representation of an illiterate or an incompetent." EC 7-12
states that "any mental or physical condition of a client that renders him incapable of making a
considered judgment on his own behalf casts additional responsibilities upon his lawyer. Where an
incompetent is acting through a guardian or other legal representative, a lawyer must look to such
representative for those decisions which are normally the prerogative of the client to make. If a
client under disability has no legal representative, his lawyer may be compelled in court proceedings
to make decisions on behalf of the client. If the client is capable of understanding the matter in
question or of contributing to the advancement of his interests, regardless of whether he is legally
disqualified from performing certain acts, the lawyer should obtain from him all possible aid. If the
disability of a client and the lack of a legal representative compel the lawyer to make decisions for
his client, the lawyer should consider all circumstances then prevailing and act with care to
safeguard and advance the interests of his client. But obviously a lawyer cannot perform any act or
make any decision which the law requires his client to perform or make, either acting for himself if
competent, or by a duly constituted representative if legally incompetent.”
Made
1. In response to a Comment from the TBA Tax, Probate and Trust Law Section, the
Committee recommends the replacement of the references in Comments [6] and [7] to an
“emergency” with a more direct reference to situations in which the impaired client is threatened
with imminent and irreparable harm to his or her health, safety or financial interests. The Section
was concerned that the reference to an “emergency” might be read to impose restrictions other
than that there be a threat of imminent and irreparable harm. Others thought the reference to an
emergency was redundant. The Committee agrees with the Section that a lawyer should be allowed
to take protective action when necessary to prevent imminent and irreparable harm to a client,
without any other limitations that might be inferred from the reference to an emergency.
2. The Board of Professional Responsibility has recommended that Rule 1.14(b) be
modified to clarify that lawyers may seek court approval for protective actions on behalf of disabled
clients when questions arise whether seeking protective action are appropriate. As proposed by the
Board, Paragraph (b) would read:
(b) A lawyer may seek the appointment of a guardian or seek court approval to
take other protective action with respect to a client, only when the lawyer reasonably
believes that the client cannot adequately act in the client's own interest.
drafted, it requires the lawyer to seek judicial approval prior to taking protective action. Even if
redrafted, the Committee sees no need for such detail. Simply stated, seeking judicial approval to
take a protective action is a protective action permitted by Rule 1.14(b) so long as the lawyer
reasonably believes that the client cannot adequately act in the client’s own interest. Seeking
judicial confirmation of the lawyer’s judgment is like consulting with an appropriate diagnostician,
as mentioned in Comment [5]. Given the widespread adoption of ABA Model Rule 1.14, adding
such unnecessary detail is inconsistent with the Committee’s goal of promoting uniformity among
ethics rules.
PROPOSED RULE 1.15
SAFEKEEPING PROPERTY
possession in connection with a representation separate from the lawyer's own property and funds.
maintained in an insured depository institution which is located in the state where the
lawyer’s office is situated (or elsewhere with the consent of the client or third person) and
which participates in the overdraft notification program as required by Supreme Court Rule
9. A lawyer may deposit the lawyer’s own funds in such an account for the sole purpose of
paying bank service charges on that account, but only in an amount necessary for that
purpose.
Except as provided by subparagraph (a)(1)(ii), interest earned on accounts in
which the funds of clients are deposited less any deduction for service charges, fees
of the depository institution, and intangible taxes collected with respect to the
deposited funds shall belong to the clients whose funds are deposited and the lawyer
shall have no right or claim to such interest.
A lawyer shall deposit funds of clients and third persons that are nominal in
amount or expected to be held for a short period of time in a pooled account
that participates in the Interest On Lawyers’ Trust Accounts
("IOLTA") program, which provides that all interest earned be paid to the Tennessee
Bar Foundation in accordance with the requirements of Supreme Court Rule. The
determination of whether funds are nominal in amount or are to be held for a short
period of time rests in the sound discretion of the lawyer and no charge of ethical
impropriety or other breach of professional conduct shall attend an attorney’s
exercise of good faith judgment in that regard.
(iii)A lawyer may decline to participate in the IOLTA program by notifying
Chief Justice of the Supreme Court and the Board of Professional Responsibility as
permitted by Supreme Court Rule _____.
shall promptly notify the client or third person. Except as stated in this rule or otherwise permitted
by law or by agreement with the client, a lawyer shall promptly deliver to the client or third person
any funds or other property that the client or third person is entitled to receive and, upon request by
the client or third person, shall promptly render a full accounting regarding such property. If a
dispute arises between the client and a third person with respect to their respective interests in the
funds or property held by the lawyer, the portion in dispute shall be kept separate and safeguarded
by the lawyer until the dispute is resolved.
When in the course of representation a lawyer is in possession of property in which both the
lawyer and another person claim interests, the property shall be kept separate by the lawyer until
there is an accounting and severance of their interest.
[1] A lawyer should hold property of others with the care required of a professional
fiduciary. Securities should be kept in a safe deposit box, except when some other form of
be kept separate from the lawyer's business and personal property and, if monies, in one or more
trust accounts. Separate trust accounts may be warranted when administering estate monies or
acting in similar fiduciary capacities.
[2] Lawyers often receive funds from third parties from which the lawyer's fee will be paid.
If there is risk that the client may divert the funds without paying the fee, the lawyer is not required
to remit the portion from which the fee is to be paid. However, a lawyer may not hold funds to
coerce a client into accepting the lawyer's contention in a dispute with the client. The disputed
portion of the funds should be kept in trust and the lawyer should suggest means for prompt
resolution of the dispute, such as arbitration. The undisputed portion of the funds shall be promptly
distributed.
[3] Third parties, such as a client's creditors, may have just claims against funds or other
property in a lawyer's custody. A lawyer may have a duty under applicable law to protect such
third-party claims against wrongful interference by the client, and accordingly may refuse to
surrender the property to the client. However, a lawyer should not unilaterally assume to arbitrate a
dispute between the client and the third party. If not inconsistent with the interests of the client, the
lawyer may file an interpleader action concerning funds in dispute between the client and a third
party.
[4] The obligations of a lawyer under this Rule are independent of those arising from
activity other than rendering legal services. For example, a lawyer who serves as an escrow agent is
governed by the applicable law relating to fiduciaries even though the lawyer does not render legal
services in the transaction.
[5] In certain circumstances, Tennessee law governing abandoned property may apply to
monies in lawyer trust accounts or other property left in the hands of lawyers and may govern its
disposition. See Tenn. Code Ann. §§ 66-29-101 through 204 (1993 and Supp. 1999) (Uniform
Disposition of Unclaimed Property Act).
Paragraph (a): DR 9-102(A) provides that "funds of clients" are to be kept in an identifiable
bank account in the state in which the lawyer's office is situated. DR 9-102(B)(2) provides that a
lawyer shall "[i]dentify and label securities and properties of a client .. . and place them in . . .
safekeeping . . . ." DR 9-102(B)(3) requires that a lawyer "[m]aintain complete records of all funds,
securities, and other properties of a client."Proposed Rule 1.15(a) extends these requirements to
property of a third person that is in the lawyer's possession in connection with the representation.
The second sentence in Paragraph (a)(1)(2) tracks DR 9-102 (C)(2)(d).
Paragraph (a)(1)(ii) does not contain the detailed administrative provisions contained in DR
9-102(C)(2) governing the IOLTA. The Committee determined that these details were more
properly included in a separate Supreme Court Rule devoted to this purpose. The Committee
submits that a Supreme Court Rule that would be substantively identical to the administrative
requirements of DR 9-102 would provide as follows:
PROPOSED SUPREME COURT RULE ___
INTEREST ON LAWYER TRUST ACCOUNTS
Tennessee lawyers to participate in the Interest on Lawyers’ Trust Account (IOLTA)
program, absent notice to the Chief Justice of the Supreme Court of Tennessee and the
Board of Professional Responsibility of the Supreme Court of Tennessee.
(hereinafter “IOLTA accounts”) under this program:
Lawyers or law firms depositing client funds in an IOLTA account shall direct
the depository institution:
To remit interest, net any service charges or fees, as computed in
accordance with the institution’s standard accounting practice, at least
quarterly, to the Tennessee Bar Foundation for deposit in its Interest
on Lawyers’ Trust Accounts program (IOLTA); and
To transmit with each remittance to the Tennessee Bar Foundation a
statement showing the name of the lawyer or law firm on whose account the
remittance is sent, the account number and the rate of interest applied, with a
copy of such statement to be transmitted to the lawyer or the law firm.
All interest transmitted to the Tennessee Bar Foundation shall be distributed by
that entity for the following purposes:
To provide legal assistance to the poor;
To provide student loans, grants, and scholarships to deserving law
students;
To improve the administration of justice; and
For such other programs for the benefit of the public as are specifically
approved by the Supreme Court of the State of Tennessee from time to time.
The registration required by Rule 9, Section 20.5, of the Rules of the Supreme
Court shall also include an IOLTA compliance statement, which shall set forth the
bank or banks where the lawyer or the law firm maintains such depository account.
Such compliance statement shall further designate the account number assigned by
any such bank to such account. The IOLTA compliance statement shall direct such
bank or banks to remit interest thereon as required in Rule 1.15 of the Rules of
Professional Conduct, Tennessee Supreme Court Rule 8.
A lawyer who does not maintain such depository account for deposit of clients’
funds as referenced above shall advise the Board of Professional Responsibility of
the State of Tennessee when filing the registration statement and IOLTA compliance
statement as referenced above herein, that such lawyer does not maintain, and the
reasons why such lawyer does not maintain such a pooled depository account. A