in the Representation of People with Disabilities

May 2003

        Robert D. Fleischner

Center for Public Representation

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James A. Cohn, The Attorney-Client Privilege, Ethical Rules, and the Impaired CriminalDefendant, 52 U. Miami L. Rev. 529 (1998)

John H. Cross, Robert D. Fleischner, Jinanne S.J. Elder, Guardianship and Conservatorship inMassachusetts, 2d Edition, § 3.09A (2002 supplement) (Lexis)

James R. Devine, The Ethics of Representing the Disabled Client: Does Model Rule 1.14Adequately Resolve the Best Interest/Advocacy Dilemma?, 49 Mo. L. Rev. 493 (1984).

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Steven J. Schwartz, Robert D. Fleischner, et al. Protecting the Rights and Enhancing the Dignityof People with Disabilities: Standards for Effective Legal Advocacy, 14 Rutgers L. J. 541 (1983)(Symposium Issue)

Mark Spiegel, The Story of Mr. G.: Reflections Upon the Questionably Competent Client, 69Fordham L. Rev. 1179 (2000) (Symposium Issue)

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May 2003

Bob Fleischner

A client at a State Hospital asked a P& A attorney to help him toreturn to his (the client's) apartment. The client's social worker told theattorney that discharge is not possible only because the client just receivedan eviction notice for non-payment of rent. The worker showed theattorney the court's summons which required that an answer be file by thatvery afternoon or the client would default and judgement for the landlordwould enter forthwith.     Acting on the client's assurance that he had made rental paymentsusing checks from his account in the Hospital treasury, the lawyer filed ananswer denying the allegations in the complaint for eviction.     A subsequent review of the treasury accounts showed that althoughthe client had ample funds, no rent payments hade been made. Nevertheless, the client, who does not have a guardian, remained insistentthat the rent was paid and demanded that the P&A defend him from theeviction and get him out of the Hospital.     What are the attorney's ethical obligations in this case?

Some Considerations

    Problems of this nature often confront P&A attorneys and advocates. The hypothetical is intended to place the attorney in an ethical dilemma _ how to obtain the client's primary goal(discharge) in the face of the client's firm, honest, but apparently “incompetent” insistence that hehad paid his rent and could return to his apartment.

A. Competency

    The hypothetical characterizes the client's belief that he had paid the rent as“incompetent.” The term is employed here in the context it is used in the Model Rules and is intended to distinguish this client from one who is knowingly misrepresenting material facts to hisattorney. Rule 1.14 requires that even if a “client's ability to make adequately considereddecisions in connection with the representation is impaired ... because of mental disability...thelawyer shall, as far as is reasonably possible, maintain a normal client-lawyer relationship with theclient.” However, if the impairment is such that the “lawyer reasonably believes the client hasbecome incompetent ... because the client lacks sufficient capacity to communicate or make adequately considered decisions in connection with the representation” the attorney may takecertain actions which might not be proper in another context.

    The hypothetical is intended to provoke some thought about how a P&A attorney mightbest carry out her responsibilities under this Rule.

B. Preliminary considerations

    If possible, the attorney should have checked the client's assertions before filing ananswer. Filing a false pleading, without sufficient investigation, could itself violate ethics rules.Likewise, the attorney may now be in the position of repudiating his own pleading. Most state'scivil procedure rules provide that an attorney's signature on a pleading is an assertion that to thebest of his or her knowledge and belief there are good grounds to support the statements in thepleading. The hypothetical facts are intended to imply that the attorney legitimately did not havesufficient time to check the client's assertions and had relied on the client's representations ingood faith.

    The hypothetical attorney also should consider all available defenses to the eviction,including most obviously, seeking a reasonable accommodation.. Likewise, the laws of non- payment evictions differ from state to state. For example, in some states it is possible to “cure”non-payment by rendering the full arrearage within in certain number of days after receipt of theeviction notice or compliant. In some circumstances, in some states, non-payment may bedefended as a valid rent withholding. In other states such defenses are not available. P&Aattorneys, of course, should be familiar with those laws and prepared to offer whatever defensesare appropriate.

    Because even the quickest of legal processes take time, it could be argued that thehypothetical attorney was mistaken to acquiesce to the psychiatric hospital's position that thereceipt of an eviction notice could prevent or forestall discharge. This, of course, is true. Theremay have been several other appropriate ways for the attorney to advocate for his client'sdischarge. The hypothetical was intended to focus only on the ethical issues that would havearisen in the context of contesting the eviction.

C. Some choices

    The attorney's choices are limited and none is particularly comforting. Boston CollegeLaw Professor Paul R. Tremblay suggests there are four available options:

    .

Treat the client as if he were fully competent, accept his instructions and try todefend the case.

    .

Treat the client as if he were fully competent, but actively try to persuade, evenmanipulate him, to understand his situation and make a “better” choice.

Act as a “de facto” guardian for the client and make decisions for him, perhapsinformed by the insights of others who know him better.

    .

Seek appointment of a surrogate, perhaps a guardian or guardian ad litem, for theclient.   (See footnote 1) 

In states that have adopted some form of the American Bar Association's Model Rule ofProfessional Conduct 1.14, all of these choices are probably allowed by the Rule.

    1. Follow the client's instructions. The first option, following the client's instructions anddefending the eviction, is consistent with traditional ideas of client centered lawyering, with thelawyer following the client's expressed instructions. This choice is premised on respect for theclient's autonomy and dignity. It will probably accomplish nothing for the client here, however,and particularly will not help him to obtain what is perhaps his primary wish _ to be discharged.

    However, if the hypothetical attorney chooses the first option _ to follow the client'sexpressed instructions and defend the eviction case _ he may be faced with the possibility ofpresenting a defense that he knows to be untrue. Obviously, the attorney has an obligation tomake only meritorious claims (Model Rule 3.1) and to be candid with the tribunal (Model Rule3.3). If no other defenses are available, it may not be possible to defend solely on an assertion thatthe client paid the rent. Other options, consistent with the client's expressed preference andethical obligations to the client and the court, may be available depending on the circumstances ofthe case. Therefore, the hypothetical attorney will have to give careful thought to how to proceedbefore selecting the first option.

    2. Use persuasion. The second option, using persuasion or even manipulation, is alsoproblematic. P&As are appropriately sensitive to the paternalism which this approach condones. The Model Rules impliedly countenance such an approach, appearing to allowing attorneys to actcontrary to their client's instructions if the client “lacks sufficient capacity” to make “adequatelyconsidered decisions” and the attorney believes the client is “at risk of substantial harm, physical,mental, financial or otherwise.” If the attorney makes those two determinations, he or she mayeven breach the confidential relationship to consult with others to protect the client.

    Despite its paternalism, the persuasion option has some appeal in this case. The attorney isconfronted with two conflicting and mutually exclusive instructions from the client _ first, to gethim out of the Hospital and second not to admit that he is in arrears in his rent. To the extent the attorney believes that obtaining discharge is the client's primary concern, using persuasion toconvince him that he has not paid his rent (even enlisting others in the cause) may seemappropriate.

    On the other hand, there are serious drawbacks to this approach. The client's belief that hehas paid the rent may be unshakable and he may resent his attorney's paternalistic intrusion. Theclient is likely to identify such tactics as typical of the way he is treated by Hospital staff. Ifpersuasion fails, the attorney may be left with a battered relationship and little accomplished.

     3. Acting as a de facto guardian. The Model Rules suggest that the attorney may act as ade facto guardian for an incompetent client, an approach to lawyering which looks to insure theclient's “best interests.” Although this must mean that the attorney may make decisions for theclient that the client would ordinarily make for himself, the scope of the authority is very unclear.It seems fair to assume that it includes, for example, authority to call witnesses or presentevidence to which the client objects. But, what would happen here, for example, if the landlordoffered to forgive part of the arrearage and to dismiss the eviction upon a small partial payment ofback rent? May the lawyer/de facto guardian accept a settlement without his client's permission?The parameters of this authority are so vague that, in addition to its inherent paternalism, it isprobably an alternative to be avoided.

    4. Seek appointment of a surrogate. The Model Rules allow the attorney to seekappointment of a guardian or other surrogate to act in an incompetent client's interest. Here, aguardian could direct the attorney's efforts, could pay the back rent and secure the client'sdischarge. However, even the Comments to the Rule caution that “[i]n many circumstances ...appointment of a legal representative may be ... traumatic.” Rule 1.14, Comment [3]. P&A staffknow too well that a loss of liberty and stigma often attend guardianship. Seeking appointment ofa GAL might seem less onerous. The GAL could instruct the attorney, but would probably nothave access the client's funds. The client is likely to interpret the attorney's request for a GAL ora guardian to be a betrayal of the attorney-client relationship.

    Again, the options presented _ none of which is very appealing _ were presented in thecontext of Model Rule 1.14. That is, that the attorney reasonably believed that the client was“incompetent” and that a normal attorney-client relationship could not be maintained. Most P&Aprograms are appropriately cautious about making such determinations. Standards vary, but someprograms have evolved a practice that if the attorney can determine the client's goals,representation can usually go forward. In this hypothetical, the client's primary goal wasdischarge. The problem is that his goal included discharge to his own apartment and his incorrectbut unshakable belief that his rent was paid. The attorney's dilemma was how to achieve the goal.

    The choice that the P&A attorney makes will, of course, be based on the facts of the caseand the client's situation. P&A programs may find it helpful to have policies which guide staff inmaking these important decisions. (The Center for Public Representation can direct programs to helpful journal articles.) In this hypothetical case, the option most consistent with a P&A's dualmission to protect and to advocate, may be the second. If appropriate, though non-manipulative, persuasion fails, the stark choice for the attorney will probably be between the first option(following the client's expressed instructions) and the fourth (seeking appointment of asurrogate).

Responsibility to Report a Client's Suicide Threat