Disability Law Journal

The legal community has been instrumental in guaranteeing fundamental rights of self-determination for some disabled people. However, lawyers are often complicit in ableist practices—in fact, our ethical rules sometimes require it. Rule 1.14 of the Model Rules of Professional Conduct (“Model Rules”) provides that lawyers may supplement their own judgment for a disabled client’s when they think it is in their client’s interest. In Britney Spears’s case, her former attorney repeatedly undermined her attempts to end her conservatorship, likely based on his mistaken belief that doing so would not be in the singer’s best interest. Indeed, her attorney did not even inform her that ending her conservatorship was an option.

This paper considers the ethical obligations of attorneys when interacting with disabled clients, arguing that the Model Rules should be altered to reflect the idea of “support-based” legal capacity embedded in the United Nations Convention on the Rights of Persons with Disabilities and becoming popularized within the disability community. Support-based models prioritize the expressed preferences of disabled people.

Section II contextualizes this discussion within broader conversations about capacity and human rights law. Section III compares the Model Rules with the standards set out by the UN Convention on the Rights of Persons with Disabilities. Section IV discusses the practical implications of these differences through two hypotheticals. This paper concludes by proposing a new Model Rule 1.14 to bring the Model Rules in line with international human rights law and the needs of the disability community.