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Balancing ethics and client wishes: Navigating the attorney’s dilemma

1/7/25

By: Donald Patrick Eckler and Jessica K. Sterna

Attorneys often face complex ethical decisions, especially when they must balance their client’s wishes with their professional obligations. One of the most challenging situations arises when questions of mental capacity come into play, particularly in estate planning. The recent case of Carey v. Hartz, 2024 IL App (1st) 231323, shines light upon this dilemma, raising important questions about an attorney’s duty to assess a client’s mental capacity before modifying an estate plan. 

In Carey, the appellate court addressed whether attorneys have a duty to assess a client’s mental capacity before modifying an estate plan. The plaintiff, a mother, sought help to update her estate plan, but her son later petitioned for guardianship, claiming she had dementia at the time of the changes. He filed a legal malpractice claim, arguing the attorneys should have assessed her mental capacity before proceeding. The attorneys subsequently filed a motion to dismiss for failure to state a claim which was granted by the circuit court. 

The appellate court reversed. While attorneys are not required to assess a client’s capacity upfront, Rule 1.14 of the Illinois Rules of Professional Conduct permits attorneys to take protective actions when a client’s capacity is in question. While not using the rules as the basis for the duty, the court found the complaint provided enough facts to suggest the attorneys should have been aware of the plaintiff’s diminished capacity, thus warranting further investigation. 

This case underscores the ethical responsibilities that attorneys have and the risk management steps they should undertake when working with clients who may have potential questions regarding diminished capacity. It carries significant implications for the legal profession by clarifying attorneys’ duties in such situations and emphasizing the potential consequences for failing to meet these obligations, ensuring accountability in safeguarding at-risk clients.  

For more information, please contact Donald Patrick Eckler at patrick.eckler@fmglaw.com, Jessica K. Sterna at jessica.sterna@fmglaw.com, or your local FMG attorney.