Abstract
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.
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About the Author
Heather Swadley is a Senior Legal Analyst at the Center for Global Health Science and Security. She has experience in a variety of professional roles focused on the intersections between law, public policy, and health, including work for non-profit organizations, government agencies, and legislative bodies. Most recently, Heather worked as an Assistant Professor of Political Science, studying the intersections between law, health policy, and community integration for people with disabilities. Her current research at the Center is focused on understanding state and federal laws and regulations governing patient movement and care in emergency and non-emergency situations in an effort to identify areas of conflict, as well as where additional legal authority may be necessary.
Swadley holds a Ph.D. in Political Science from the University of Pennsylvania and a J.D. from Temple Beasley School of Law, where she was Lead Articles Editor for Temple Law Review and graduated magna cum laude. Her scholarly work has been featured in the Journal of Women, Politics & Policy, Nebraska Law Review, the UCLA Disability Law Journal, and Oklahoma Law Review, among others. She is licensed to practice law in DC.
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