FACT SHEET ON ETHICAL OBLIGATIONS OF ATTORNEYSREPRESENTING CLIENTS WITH PSYCHIATRIC DISABILITIES

                Center for Public Representation

    The representation of clients with psychiatric disabilities raises a number of ethical issues.These include when to seek a guardianship for a client, when it is permissible to withdraw fromrepresentation, when concerns regarding the client's psychiatric condition may be shared withothers, and how to respond when a client rejects a settlement offer which is clearly in his or herbest interests.

    The American Bar Association has Model Rules of Professional Conduct, as well as bothformal and informal opinions which provide some guidance on these issues. However, it should benoted that each state has its own rules of ethics, some of which deviate considerably or expandupon the Model Rules of Professional Conduct. In addition, many states' Bars have also issuedopinions which can assist attorneys from those states. This fact sheet summarizes many of theseopinions and rules.

A. GENERAL GUIDELINES

The Model Rules of Professional Responsibility require that “[w]hen a client's ability to makeadequately considered decisions in connection with the representation is impaired...because ofmental disability...the lawyer shall, as far as reasonably possible, maintain a normal client-lawyerrelationship with the client.” Rule 1.14(a). As the Alabama Bar has noted,“In practice, situationsinvolving disabled clients do not neatly present distinct levels of disability, so that it is not clearwhether Rule 1.14 has application...Furthermore, even when it is clear that Rule 1.14(a) applies, itis difficult to say how far a lawyer may deviate from a 'normal' client-lawyer relationship in anygiven instance.” Alabama, Ethics Opinion RO-95-06.

    The Alabama Bar derives two conclusions from this observation. First, an attorney for adisabled client will be held to a higher standard of responsibility: “As the difficulty of the situationincreases, so too does the lawyer's responsibility. 'For every degree that [the lawyer] by histestimony and evidence proved a less than normal mental and functional capacity on the part of hisclient...he raised by an equivalent degree the standard of conduct which the Court must require ofhim in his dealings with the client,” citing In re Witte, 615 SW2d 421, 422 (Mo. 1981), AlabamaEthics Opinion RO-95-03.

    At the same time, an attorney “cannot be disciplined for any action that has a reasonablebasis and arguably is in his client's best interests” Alabama Ethics Opinion 95-06, quoting Hazardand Hodes, The Law of Lawyering.

B. WHETHER AND WHEN TO SEEK A GUARDIAN FOR A CLIENT

    The Model Rules of Professional Conduct permit a lawyer to seek a guardian for a clientunder a disability, “or take other protective action with respect to a client, only when the lawyerreasonably believes that the client cannot adequately act in the client's own interest.” Model Rule1.14(b). As the language of the Model Rule underscores, and as numerous State Ethics opinionsemphasize, seeking a guardian for a client should happen only if the client is incompetent, andeven then should only be the last resort, if it undertaken at all. It is an option, and nevermandatory, unless the attorney seeks to withdraw from the representation of an incompetent andotherwise unprotected client (see infra).

    A lawyer is not to seek a guardian for a client because the client displays bad judgment,makes imprudent choices, or disagrees with the attorney's assessment of his or her best interest. “The lawyer has an absolute duty to advocate for client's desires even if, in the lawyer's opinion,those desires are against the best interests of the client,” Alaska 94-3. The test is not whether theclient is acting in his or her own best interests, but, as Model Rule 1.14(b) makes clear, whetherthe client can act in his or her own interest at all, a far more difficult standard to meet. As theConnecticut Bar stated in a long, detailed opinion:

Rule 1.14(b) does not authorize the lawyer to take protective action because the client isnot acting in what the lawyer believes to be the client's best interest, but only when theclient cannot act in the client's own interest. A client who is making decisions that thelawyer considers to be ill-considered is not necessarily unable to act in his own interest,and the lawyer should not seek protective action merely to protect the client from whatthe lawyer believes are errors in judgment.

Conn. 96-404.

    Other State Ethics opinions agree on the standard that a guardian should only be sought ifthe client is incapable of acting in his or her own interest, rather than when the client has actedagainst his or her own interest. For example, Michigan has clarified that it is appropriate to seekappointment of a guardian in two specific situations: “A lawyer may seek appointment of aconservator or take protective action with respect to a client with a history of mental illness whohas refused to accept a personal injury settlement or pay for its appeal if the lawyer reasonablybelieves the client cannot adequately act in the client's own interest. Such action does not involvea conflict of interest.” Michigan RI 76 (1991).

    In two older opinions, Alabama and California represent the opposite ends of the spectrumon this issue, with Alabama taking the position that an attorney may seek a guardian if it is in theclient's best interests, Alabama Op. 87-137(“ a lawyer whose client is incompetent may file apetition for appointment of a guardian, and is required to do so if the lawyer believes it is in theclient's best interests”) and California holding that an attorney may never seek a conservatorshipon behalf of his own client without the client's consent, California Op. 1989-112 (“A lawyer maynot initiate conservatorship proceedings on the client's behalf without the consent of the client,even if the lawyer believes it is in the client's best interests”).

    State Ethics Opinions also concur in the principle that prior to seeking the appointment of a guardian, an attorney must attempt to resolve problems through less drastic approaches.Various opinions offer a variety of approaches:

Rather than seek appointment of a guardian, the lawyer has the duty to seek lessrestrictive alternatives, such as involvement of family members, use of durable powers ofattorney or revocable trust, and referral to support groups or social services. If, afterconsideration of less restrictive means, the lawyer has concluded that a guardian should beappointed for the client, the lawyer may petition for guardianship, but may not represent athird party in filing a petition for guardianship of his or her client.

Connecticut 96-404.

    Likewise, an Oregon Ethics Opinion notes that:

A lawyer who begins to observe behavior by the Client contrary to Client's best interestsmay take action on behalf of the client. This action must be the least restrictive form ofaction sufficient to address the situation. For example, appointment of a guardian isinappropriate if speaking to client's spouse or child would accomplish the same purpose.Oregon Op. 1991-41.

Massachusetts has expanded its version of Rule 1.14 to specifically authorize an attorney topursue less restrictive alternatives and to clarify that it is sometimes appropriate to seek theappointment of a guardian.

If a lawyer does seek the appointment of a guardian, the facts underlying the application should bekept confidential to the greatest degree possible. A New York City opinion states that, while alawyer may disclose confidential information in seeking appointment of a guardian, the requestshould be made in camera and should be filed under seal. New York City NY Op. 1987-7.

C. CONFIDENTIALITY OF CLIENT INFORMATION

    As the New York City Bar Opinion reflects, representing a client with a disability oftenraises questions about the degree to which information about the disability may be shared withothers. Model Rule 1.6 provides that

(a) A lawyer shall not reveal information relating tot he representation of a client unlessthe client consents after consultation, except for disclosures that are impliedly authorizedin order to carry out the representation, and except as stated in paragraphs (b), (c), (d) orER 3.3(a)(2).

(b) A lawyer may reveal such information to the extent the lawyer reasonably believesnecessary to prevent the client from committing a criminal act that the lawyer believes islikely to result in death or substantial bodily harm.

In addition to the exception noted above, the Model Rules provide that an attorney may divulge confidential information in compliance with a court order, to secure legal advice about compliancewith ethical rules, or to establish a claim or defense in a legal controversy with the client, andother legal actions related to representation of the client.

    The American Bar Association has issued an informal opinion to which some in theNAPAS community would take exception, stating that “a lawyer may discuss a client's conditionwith his physician even without the client's consent when necessary to the representation of theclient.”ABA Informal Opinion 89-1530. Alabama concurs: “A lawyer who believes that a clientlacks capacity to act in the client's own interests may divulge confidential information to anindependent diagnostician without the client's consent.” Alabama Ethics Opinion 90-12. Nebraskaappears to concur with this approach, Neb. Op. 91-4 (“A lawyer who reasonably believes that aclient is not able to act in the client's best interests may disclose confidential information to theextent necessary to protect the client's best interests.”)

    In several different opinions, Connecticut advises that the more ethical path to pursuewould be to consult with the client first, and ask permission to speak to the client's physician oranother physician. If the client does not consent, the attorney should speak with the physician onlyif the attorney reasonably believes that the client's ability to act in his own interest is impaired,Conn. Inf. Op. 98-17. If the attorney is unable to assess his client's ability to act, or has doubtsabout the client's ability, a formal opinion from Connecticut permits the attorney to seek guidancefrom “an appropriate diagnostician,” especially under circumstances when

a disclosure of the client's condition to the court or opposing parties could have adverseconsequences for the client...There may also be circumstances where the lawyer will wishto consult with the client's family or other interested persons who are in a position to aidin the lawyer's assessment of the client's capacity as well in the decision of how toproceed. Limited disclosure of the client's observations and conclusions about the client'sbehavior seems clearly to fall within the meaning of disclosure necessary to carry out therepresentation authorized by Rule 1.14...The lawyer must be careful, however, to limit thedisclosure to those pertinent to the assessment of the client's capacity and discussion ofthe appropriate protective action. Rule 1.6 does not permit the lawyer to disclosegenerally information relating to the representation.

Conn. Op. 96-404.

    Different states take different positions on discussions with the client's family; in someStates, such as Connecticut, discussions with family may be less harmful than disclosure to thecourt or adverse parties; other states, such as Illinois, discourage the attorney from discussing hisor her client with family members unless the attorney believes the client needs a guardian, Ill.Advisory Op. 00-02 (“A lawyer may not divulge a psychiatric report to his client's parent unlessthe lawyer is of the opinion that the client is so disabled that a guardian should be appointed”)seealso Pennsylvania Op. 90-89, infra. One New York County Bar opinion takes a different point ofview, Nassau County NY Op 90-17(“A lawyer may not reveal to the relatives of a client thelawyer's observations or information regarding the client's competency; consultations with theclient are confidential.”)

    Finally, some states have seemingly contradictory positions. Pennsylvania advises both that

“[a] lawyer who is convinced that disclosure is necessary may disclose confidential information tothe extent necessary to protect the client's interests,” Pennsylvania Op. 91-36, and that “[i]f alawyer believes a client is incompetent, the information must remain confidential unless the lawyerdecides to it is necessary to pursue a guardianship.” Pennsylvania Op 90-89.

D. WITHDRAWAL FROM REPRESENTATION

    The issue of client competence sometimes arises when a client refuses to cooperate withthe attorney, or refuses to accept a settlement that the attorney believes is in his or her bestinterests, or desires the attorney to pursue a course of action that the attorney recognizes will beultimately detrimental to the client. It is at this point that many attorneys face the question ofwhether to accede to the client's wishes, withdraw from representation, or seek a guardian.

    Model Rule 1.2, on “Scope of Representation,” provides that “(a) A lawyer shall abide bya client's decisions concerning the objects of representation,” subject to certain exceptions, “andshall consult with the client as to the means by which they are to be pursued. A lawyer shall abideby a client's decision whether to accept an offer of settlement of a matter.” At the same time Rule1.16 permits an attorney to withdraw from representation if, among other things,

    (3) the client insists on pursuing an objective that the lawyer considers...imprudent...

    (5) the representation has been rendered unreasonably difficult by the client, or

    (6) other good cause for withdrawal exists

Rule 1.16(b).

    However, Rule 1.16 only permits this if the withdrawal can be accomplished without“material adverse impact” on the client, which complicates the matter when the attorney hasdoubts about the client's competence, and either seeking a guardianship or withdrawing mighthave an adverse impact on the client's interests. In addition, since the Rule requires that anattorney who withdraws must give the client notice and allow time for the client to obtain othercounsel, Rule 1.16(d), the fact of a client's potential incompetence and actual indigence make“material adverse impact” on the client from the attorney's withdrawal all the more likely.

    State Ethics opinions vary widely on this topic. Connecticut urges the attorney to avoidwithdrawal and obtain a guardian if necessary, Conn. Op. 96-404 (“Thus, without concluding thata lawyer with an incompetent client may never withdraw, the Committee believes the bettercourse of action, and the one most likely to be consistent with Rule 1.16(b), will often be for thelawyer to continue with the representation and seek appropriate protective action on behalf of theclient”); Pennsylvania counsels the opposite, Pennsylvania Op. 88-132(“A lawyer must honor anincompetent client's wish to enter into a property settlement although the lawyer believes it is notin the best interests of the client. If the lawyer cannot advocate the client's position, the lawyershould withdraw, citing disagreement with the client, not the client's incompetence.”)

    Other ethics opinions concur that an attorney who seeks to withdraw because of failure of client cooperation should seek a guardian first, Philadelphia Bar Association Op. 92-16 (“When abrain-injured client repeatedly missed medical appointments, failed to return calls, and may havemoved out of state, the attorney may have an obligation to seek the appointment of a guardianprior to withdrawal to protect the client's interests”); South Carolina Bar Advisory Op 94-35(attorney not required to withdraw from representation but may be permitted to withdraw fromrepresentation and should seek the appointment of a guardian; under ordinary circumstances anattorney may withdraw from representation due to Client's failure to follow instructions, butwhen a client has a disability, withdrawal would result in material adverse impact on client'sinterests without appointment of guardian.)

CONCLUSION

    Many of these Ethics opinions arise from circumstances quite different from those facedby a Protection and Advocacy attorney representing a client in a public mental health system.Often this client either is or has been institutionalized. A Protection and Advocacy attorney shoulderr on the side of respecting a client's autonomy, even where the exercise of that autonomy maynot be in the client's best interests. In many cases, the clients that we represent have been moredamaged by having persons who ignore their expressed desires than by persons who haverespected them. Often the most strategic course, rather than seeking a guardian or withdrawingfrom a case, is to delay when a client may ultimately change his or her mind about a decision thathas serious adverse consequences for the client's interests. Seeking the appointment of a guardianis often seen by the client as a breach of trust so enormous as to be irreparable.

    Many State Bar ethical opinions acknowledge the difficulty and individual nature ofrepresenting a client with a disability, and indicate that as long as the attorney operates in goodfaith and attempts to serve his or her client with diligence and zealousness, the attorney'sindividual decisions on the best and most ethical way to proceed will not be second-guessed bythose who are less familiar with the client and with the circumstances of the case.