The opinion emphasizes preserving a client’s autonomy and maintaining the ordinary attorney-client relationship whenever possible. It also addresses the circumstances in which attorneys may take protective action on behalf of clients and the potential conflicts that can arise when an attorney who previously represented a client later considers representing a guardian.
Rossi highlighted the importance of preserving client autonomy when assessing decision-making limitations. “The message here is that when a client has diminished decision-making capacity, the lawyer’s starting point should still be to preserve the client’s autonomy and the ordinary attorney-client relationship for as long as possible.”
Rossi also discussed how Formal Opinion 525 changes the way attorneys should approach these determinations, emphasizing both the client’s decision-making authority and the process attorneys use to assess capacity. “The lawyer’s process for reaching a capacity judgment becomes almost as important as the ultimate judgment.”
The opinion also raises questions about attorneys representing a guardian after previously representing the ward. Rossi noted that while the policy rationale behind maintaining separate counsel is understandable, the application of existing conflict-of-interest rules may require a fact-specific analysis. “Opinion 525 seems to put greater weight on the inherent tension between representing the ward and then representing the person authorized to act for the ward.”
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