Fulton Court: Client Competence Risks in 2026

Representing an injured client brings complexities that go way beyond simple legal strategy. A huge, and frankly often overlooked, challenge is figuring out if a client has the capacity to understand what’s going on and participate in their own case. This problem of client competence hits our ethical obligations square on the chin and affects the outcome of the entire personal injury claim, meaning we have to be on top of it from the first handshake to the final check.

The Problem: Undetected or Unaddressed Diminished Capacity

I’ve seen firsthand how competence issues can get completely missed in the rush of injury law. A client comes in for the first meeting and seems totally fine, but later on their ability to understand complex legal ideas or even remember key facts just isn’t there. This has nothing to do with how smart they are. It’s about their capacity to get the nature and consequences of legal decisions. For example, a client with a traumatic brain injury (TBI) from a wreck on I-75 near the I-285 interchange might have executive function problems that make it hard for them to follow instructions or stay on track. I’ve also seen it with elderly clients, like someone in a slip-and-fall at a Buckhead grocery store, who may have early-stage dementia affecting their judgment on a settlement offer.

The real issue is that we’re lawyers, not neurologists. We can’t diagnose cognitive problems. We have to go by what we see, and that can be really deceptive. A client might nod along while you’re talking, but that doesn’t mean they actually get the implications of signing away certain rights or agreeing to a structured settlement. This puts us in a bind: if a client doesn’t have the capacity to make an informed choice, any agreement they sign, from our retainer to a final release, can be challenged down the road. We have to fight for our clients, but we also have to be sure they’re the ones truly steering the ship.

What Went Wrong First: The Hands-Off Approach

Early in my career, I saw a lot of lawyers, and I was probably guilty of this too, take a passive role on client competence. The attitude was basically, “Hey, the client signed the paperwork, they must have understood it.” This hands-off method just assumes that if a person can say they want money, they have full legal capacity. It involves giving a standard-issue explanation of legal jargon and settlement numbers, and then just taking the client’s ‘yes’ or ‘no’ without digging any deeper. Think about a client in a serious workplace accident under the Georgia Workers’ Compensation Act (O.C.G.A. Title 34, Chapter 9) who gets a full and final settlement offer. If they sign it without realizing they’re giving up future medical benefits forever, that’s a massive failure by their attorney.

This way of practicing is bound to fail because it completely ignores how subtle diminished capacity can be. It doesn’t factor in the effects of powerful pain meds, post-traumatic stress, or cognitive conditions that aren’t obvious at first glance. I remember a case involving a guy who was badly hurt in a commercial truck wreck on Highway 316. He jumped at a settlement offer that was way too low. It was only later, after his family stepped in because they were worried about his memory and constant confusion, that we all realized he hadn’t grasped the long-term financial hit he was taking. His first lawyer just took his “yes” and moved on, creating a disaster that was a malpractice claim waiting to happen and could have wrecked the client’s future. Just waiting for problems to pop up is a terrible strategy that leaves the client exposed and the lawyer facing serious ethical and liability problems.

The Solution: A Proactive and Structured Assessment Framework

You have to tackle client competence with a structured system that’s part of your case from start to finish. It’s an ongoing evaluation, not a one-time thing. Here’s how we do it.

Initial Screening and Ongoing Observation

From the very first meeting, we’re screening for more than just the facts of the case. We’re watching for specific red flags. Can the client tell a coherent story? Are their answers consistent? Do they seem to get basic ideas like attorney-client privilege or how a contingency fee works? For instance, when we’re talking about a lawsuit for a pedestrian accident near Piedmont Park, we’re listening to see if the client can follow the difference between economic and non-economic damages, or if they’re struggling to connect their injuries to the person who caused them.

This isn’t a one-and-done check. We keep observing all the way through the case. If we’re in a deposition or a settlement meeting and the client’s demeanor changes, they get confused, or they can’t remember things we’ve already covered, those are major warning signs. We log every one of these observations in our case management system, date, specific details, and what we did about it. This builds a clear record that we were paying attention.

Using Georgia Rules of Professional Conduct

Georgia’s Rule of Professional Conduct 1.14 is our roadmap for this stuff. It says that when a client’s ability to make “adequately considered decisions” is diminished for any reason (age, mental impairment, etc.), we have to try to maintain a normal client-lawyer relationship as much as possible. But, and this is the key part, if we reasonably believe the client is at risk of substantial harm (physical, financial, or otherwise) and can’t act in their own best interest, we’re allowed to take “reasonably necessary protective action.” That could mean talking to people who can help protect the client, or in serious cases, asking the court to appoint a guardian ad litem or conservator.

Let’s say we’re representing someone who had a major stroke because of medical malpractice at Grady Memorial Hospital, and now they can’t make sense of a complicated settlement offer. Rule 1.14 gives us the green light to take action. With their permission, we might talk to their neurologist or get input from a family member they trust about their decision-making. The phrase “reasonably necessary” is what matters. We don’t just jump to getting a guardian appointed. We try less intrusive steps first, always trying to preserve as much of the client’s autonomy as we can.

Collaboration with Medical and Mental Health Professionals

When we have real doubts about competence, especially after a life-altering injury like a spinal cord injury from a fall at a Midtown Atlanta construction site, we have to bring in the medical pros. We’ll often request a neuropsychological or psychiatric evaluation to get an objective take on their cognitive function, memory, and decision-making skills. The objective reports from these experts are worth their weight in gold. A neuropsych report might pinpoint specific problems with executive function or processing speed, which would directly explain why a client is having trouble with legal documents or settlement math.

Of course, you have to get the proper HIPAA authorizations from the client to even have these conversations. We’re very clear with them about why we need these evaluations and how the information will be used to protect them. The information we get from doctors helps us change how we communicate, break down complex ideas, and, if it comes to it, give a court objective evidence to support appointing a guardian ad litem. It’s not about taking over. It’s about making sure their decisions are actually informed when the stakes are incredibly high, like when they’re deciding whether to accept a lump sum workers’ compensation settlement from the State Board of Workers’ Compensation.

Documentation and Communication Strategies

Documentation is everything. It’s your shield and your guide. Every single conversation where competence comes up, every observation of a client struggling, every recommendation for an evaluation, and every step taken is recorded in detail. We document how we explained legal advice, what questions the client asked, and how they responded. For example, if we’re explaining comparative negligence (O.C.G.A. Section 51-12-33) to a client with a TBI, our notes will show the simplified language and analogies we used, and log the client’s specific questions or moments of confusion.

We also have to change how we talk to them. For clients who are struggling, we use simpler words, draw diagrams, and repeat the most important points. With the client’s consent, we bring trusted family members or caregivers into meetings to help reinforce the information. We also schedule shorter, more frequent meetings to avoid overwhelming them. This constant loop of communication and adjustment helps us see what’s getting through and what’s not, letting us meet the client where they are instead of expecting them to meet us on our turf.

Measurable Results: Protecting Clients and Practice

So what does all this extra work get you? For starters, your settlements actually stick. When a client truly understands what they’re agreeing to, the chance of them coming back later and saying they were confused or pressured drops to almost zero. That means fewer motions to set aside judgments and more stable, final resolutions for the people who are counting on you.

On top of that, this proactive system is your best defense against a malpractice claim. An attorney who can show a detailed record of assessing competence and taking protective action under Rule 1.14 is in a very strong position if their representation is ever questioned. Those detailed notes are hard evidence of ethical, diligent work. You avoid the nightmare of having a settlement challenged for incapacity, which saves everyone a ton of time and money. By making sure our clients are really capable of making their own informed decisions, we’re doing our jobs right and getting them results that actually serve their interests for the long haul.

Dealing with client competence is a core ethical duty for an injury lawyer. It takes constant vigilance, some compassion, and a proactive system to make sure every client’s voice is not just heard, but is truly understood and given the weight it deserves.