United States District Court
Northern District Of Illinois
Local Rules
LR83.51.14. Client Under a Disability
(a) When a client’s ability to make adequately considered decisions in connection with the
representation is impaired, whether because of minority, mental disability, or some
other reason, the lawyer shall, as far as reasonably possible, maintain a
normal client-lawyer relationship.
(b) A lawyer may seek the appointment of a guardian or 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.
Committee Comment. General. 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.
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.
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.
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 LR83.51.2(d).
Disclosure of the Client’s Condition. 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 example, raising the question of disability could, in some
circumstances, lead to proceedings for involuntary commitment. The lawyer’s position in such cases is an unavoidably difficult one. The lawyer may seek
guidance from an appropriate diagnostician.