Law of Wills, 2016A

decisions due to diminished capacity, and is at risk of serious physical, financial, or other harm, the
ethics rules require attorneys to consider actions to protect that client. Nevertheless, the attorney
has to be cautious when taking steps to protect the interests of a diminished client.
American Bar Association Model Rule 1.14 Client With Diminished Capacity
(a) When a client’s capacity to make adequately considered decisions in connection with a
representation is diminished, whether because of minority, mental impairment or for some other
reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship
with the client.
(b) When the lawyer reasonably believes that the client has diminished capacity, is at risk of
substantial physical, financial or other harm unless action is taken and cannot adequately act in the
client’s own interest, the lawyer may take reasonably necessary protective action, including
consulting individuals or entities that have the ability to take action to protect the client, and in
appropriate cases, seeking the appointment of a guardian ad litem, conservator or guardian.
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(d) Information relating to the representation of a client with diminished capacity is protected by
Rule 1.6(a) to reveal information about the client, but only to the extent necessary to protect the
client’s interests.
In re Disciplinary Action Against Kuhn, 785 N.W.2d 195 (N.D. 2010)
PER CURIAM.
A hearing panel of the Disciplinary Board recommended attorney Gerald A. Kuhn be suspended
from the practice of law for ninety days and pay the costs of the disciplinary proceeding in the
amount of $2,654.07 for violating N.D.R. Prof. Conduct 1.7(a), Conflict of Interest, and 1.14, Client
With Limited Capacity. Counsel for the Disciplinary Board urges this Court to accept the hearing
panel’s recommendation. Kuhn objects to the hearing panel’s conclusions, arguing they are not
supported by clear and convincing evidence. Determining there is clear and convincing evidence
Kuhn violated N.D.R. Prof. Conduct 1.14, we direct that Kuhn be suspended from the practice of
law for ninety days and that he pay the costs of the disciplinary proceeding in the amount of
$2,654.07.
I.
Kuhn has been licensed to practice law in the courts of North Dakota since July 8, 1974. Shortly
after he started his practice, he began to do tax work for Jake Leno. In 2005, Kuhn wrote a will for
Jake Leno. In that will, Jake Leno devised his condominium to his daughter, Kathleen McKinley.
In 2006, McKinley filed a petition for appointment of a guardian/conservator for Jake Leno. The
district court appointed Guardian and Protective Services, Inc. (“GAPS”) as Jake Leno’s temporary
guardian/conservator. The district court also appointed a physician, guardian ad litem, and visitor to
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