For thirteen years, pop icon Britney Spears has been under a conservatorship of both her person and her estate. Under California law, her father Jamie Spears completely controlled her assets, estate, business affairs, and personal life until he was removed from her conservatorship on September 29, 2021. After years of abuse and an incredibly popular social media movement dedicated to #FreeBritney, the world heard about Britney Spears’ conservatorship in her own words on June 23, 2021. The pop star recounted a humiliating chain of abuses, including the loss of financial freedom, and forcible sterilization through an intrauterine device that she is not allowed to remove. The singer’s conservatorship was only recently terminated after a change in legal counsel and a lengthy legal battle. Britney’s treatment rightfully shocks and dismays the world. Yet, Britney’s case mirrors the ways in which the legal system fails disabled people more generally. As National Women’s Law Center attorney Ma’ayan Anafi stated: “What’s different is that Spears has a platform to share it with the world.”

Disabled people—especially people with intellectual and developmental disabilities and mental-health disabilities—routinely face paternalism in the legal system. Non-disabled persons are presumed legally competent once they reach the age of majority. Once a person reaches the age of eighteen, they may freely make major life decisions such as where to live or to contract without legal intervention—even if these decisions are not in the person’s “best interest.” However, for persons the law deems incapacitated, usually on the basis of mental disability, the law implements a double standard. For adults under guardianship, third parties may make all manners of decisions in pursuit of the disabled party’s perceived best interest.

Disabled people were once placed in abusive institutions under the guise of their “best interest.” Yet, even in a “post-institutionalization” era, disabled people are routinely denied basic rights such as parenthood on the basis of their perceived best interest and the perceived best interest of their children. Disabled people can be forcibly medicated and involuntarily committed in pursuit of their best interests. Disabled people can be denied the right to choose their own sexual partners. Moreover, disabled people are moreover often denied the right to choose where they live or work—they are funneled into nursing homes or sheltered workshops by default.

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.