On March 23, 2023, the Supreme Court of Maryland unanimously adopted changes to the Maryland Rule of Professional Conduct, 19-301.14 and related rules, regarding clients with diminished capacity.
The 214th Report Rules Order is posted here. The rules went into effect July 1, 2023.
- update 1.14 and related rules to be consistent with current best practice and the most recent science and literature around capacities and decisional supports and accommodations
- address the misuse of 1.14 by practitioners to the disadvantage of the legal rights of clients; and
- provide additional guidance to attorneys whose clients may have diminished capacity, including representation that is based on each client’s abilities, the availability of supports or accommodations, and a focus on context rather than an actual or suspected diagnosis
The rule changes address barriers people with disabilities face accessing legal services and provide guidance to attorneys so they can more effectively represent clients who may be experiencing diminished capacity. The rules recognize that attorneys, although not clinicians, routinely make capacity assessments, and offer to them an analytical framework for assessing a client’s decision-making capacity, factors that may impede decision-making, and supports and accommodations that may alleviate or eliminate those factors. The changes also affirm the right of a person who has a legal representative, such as a guardian, to consult with or retain independent counsel should they wish to challenge the authority of that legal representative.
These changes are the work product of a Judiciary working group led by Hon. Patrick L. Woodward, Chief Judge of the Appellate Court of Maryland (Ret.).
- Maryland’s Major Rethinking of Model Rule 1.14, American Bar Association, Bifocal Vol. 44 Issue 6 (July 2023)
The MSBA is grateful to Nisa C. Subasinghe, Esq. and the Government Relations and Public Affairs Office of the Administrative Office of the Courts of Maryland for providing this important information. Subasinghe is Domestic and Guardianship Program Manager, Juvenile and Family Services, at the Administrative Office of the Courts.