What They Didn’t Teach You In Law School: Representing Client With Diminished Capacity

Michael E. McCabe, Jr.Communications, Competence, Confidentiality0 Comments

mental health awarenessIn recognition of Mental Health Awareness Week, the focus this month on “What They Didn’t Teach You in Law School” is on representing a client with diminished mental capacity.  According to the leading mental health organization in the country, 1 in 5 adults in the United States suffer from some form of mental health condition or disorder.  Thus, it is likely that at some point in your legal career, you will be representing an individual client, or a representative of a corporate client, who suffers from some degree of mental illness.

ABA Model Rule of Professional Conduct 1.14 addresses client-lawyer relationships where the client suffers from a mental illness or diminished capacity.  Rule 1.14 states as a general rule, “the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client.”  That, of course, may be easier said than done.  If an attorney believes his or her client suffers from a mental illness, the pivotal question to consider is whether the client cannot adequately act in the client’s own interest.

General Guidelines

If the client cannot act in his or her own interest, then an attorney “may take reasonably necessary protective action, including consulting with individuals or entities that have the ability to take action to protect the client and, in appropriate cases, seeking the appointment of guardian ad litem, conservator or guardian.” Note the absence of mandatory “shall” language for appointing a guardian. According to the Center for Public Representation, many jurisdictions recommend guardian appointment as a last resort, as clients may see such an appointment as a betrayal or breach of trust or the duty of confidentiality.

One bar has explained that an attorney for a disabled client will be held to a higher standard of responsibility: “As the difficulty of the situation increases, so too does the lawyer’s responsibility. ‘For every degree that [the lawyer] by his testimony and evidence proved a less than normal mental and functional capacity on the part of his client…he raised by an equivalent degree the standard of conduct which the Court must require of him in his dealings with the client.” Alabama Ethics Opinion RO-95-03.

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

Instead, attorneys should implement means to support the client and ensure an effective legal decision making process. A two-prong test may be useful when determining the existence and degree of a client’s mental illness:

(1) “take reasonable steps to optimize capacity;” and

(2) “perform a preliminary assessment of capacity.”

How are youDuty To Assess Client’s Mental Capacity

Attorneys should be aware of mental illness symptoms to spot a mental illness when representation commences. This, again, may be easier said than done.  After all, most attorneys are not trained in mental health assessment. And the younger or less experienced the attorney, the more difficult it usually will be for the attorney to determine if their client is suffering from a mental illness that affects their capacity to such a degree that the client is unable to understand the lawyer’s advice or make informed decisions.

The issue must be evaluated on a case-by-case basis.  Attorneys at the very least should, in the normal course of speaking with their client, be able to determine that there may be an issue of the client’s capacity.  If an attorney remains uncertain about a client’s mental state after a preliminary assessment, then the attorney may need to consult the help of a mental health professional. If an attorney does not discover a mental illness until after representation commences, the attorney should take steps to ensure the client’s interests have been preserved. Indeed, contracts and other legal documents may be considered invalid if the client did not possess the requisite capacity at the time the document was executed.  And if that should ever occur, it is likely that the person who will be blamed for the invalid instrument is the lawyer, under the theory the lawyer was negligent in failing to properly assess his or her client’s mental health and either knew, or should have known, that the client was incompetent.

One authority explains that perhaps the clearest and most enduring articulation of client capacity remains that of the President’s Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research, enunciated in their seminal 1982 report: “Decision making capacity requires, to greater or lesser degree: (1) possession of a set of values and goals; (2) the ability to communicate and to understand information; and (3) the ability to reason and to deliberate about one’s choices.”

Whether to Seek a Guardian for a Client

A lawyer may seek a guardian for a client under a disability, “or take other protective action with respect to a client, only when the lawyer reasonably 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 opinions emphasize, seeking a guardian for a client should happen only if the client is incompetent, and even then should only be the last resort. It is an option, and never mandatory, unless the attorney seeks to withdraw from the representation of an incompetent and otherwise unprotected client (in which case the attorney’s duty will be to bring the matter to the attention of the tribunal so that an appropriate guardian may be appointed to protect the client’s interests).

Bad Client Decisions Do Not Equate With Incompetence

Clients are entitled to make bad decisions.  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 the client is acting in his or her own best interests, but, as Model Rule 1.14(b) makes clear, whether the client can act in his or her own interest at all, a far more difficult standard to meet. As the Connecticut Bar stated:

Rule 1.14(b) does not authorize the lawyer to take protective action because the client is not acting in what the lawyer believes to be the client’s best interest, but only when the client cannot act in the client’s own interest. A client who is making decisions that the lawyer 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 what the lawyer believes are errors in judgment.

Conn. 96-404.

Other State Ethics opinions agree on the standard that a guardian should only be sought if the client is incapable of acting in his or her own interest, rather than when the client has acted against his or her own interest. For example, Michigan has clarified that it is appropriate to seek appointment of a guardian “with respect to a client with a history of mental illness who has refused to accept a personal injury settlement or pay for its appeal if the lawyer reasonably believes the client cannot adequately act in the client’s own interest. Such action does not involve a conflict of interest.” Michigan RI 76 (1991).

Proper Conduct With Diminished Capacity Client

Once an attorney determines whether a client has a mental illness and takes the proper legal precautions, the attorney should also consider his or her behavior toward the client as the representation continues. For any client, effective representation goes far beyond the bare minimum legal and ethical requirements. Effective representation requires communication and understanding.

An instructive ABA article identifies the various types of mental illnesses that lawyers may encounter and how attorneys may provide the most effective and beneficial representation to their client, organized by type of illness.  The article addresses clients with dementias, psychotic disorders, more mild “functional disorders” primarily involving depression and anxiety, personality disorders, and disorders involving substance use.

Attorneys representing a client with a mental illness should constantly evaluate whether the client is capable of acting in his or her own interest, and adjust representation accordingly. As another ABA publication reminds attorneys representing clients with mental illnesses, “we are in a position to help people who trust us and seek us out for advice” regardless of a particular client’s mental state.

Mental illness affects millions of adults in the United States.  For more information and resources about mental health issues, contact the National Alliance on Mental Illness (NAMI).

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