What are a lawyer's duties when a client appears mentally incompetent during a case?

Plain-English summary

The inquirer represented a public employee in a Civil Service appeal of her termination, where one issue was her tardiness. On the hearing day she arrived 40 minutes late and appeared irrational, agitated, and potentially violent, unable to assist counsel. The administrative law judge held an in camera hearing on a continuance; the client's husband testified she had exhibited bizarre, paranoid behavior, that he was seeking to have her committed, and that she had threatened to file ethics complaints against counsel. At the husband's request, counsel had not told the client the reasons for the continuance.

The Committee declined to address whether counsel must obey a court order appointing a guardian ad litem, because the transcript showed no such order had been entered, and noted that if it had, the question could be the subject of a pending action outside the Committee's jurisdiction under R. 1:19-2. Turning to the lawyer's duties, the Committee drew on RPC 1.4 (keeping the client informed), RPC 1.14 (clients with diminished capacity), RPC 1.16 (declining or terminating representation), and the potential conflict between RPC 1.6 confidentiality and RPC 3.3 candor to the tribunal. It stressed that no inflexible rule can be formulated; the lawyer's responsibilities turn on the particular facts and a firm professional judgment, made where possible after consultation with medical and family assistance.

The Committee concluded that the lawyer must attempt to effectively advise the client of the case status unless he soundly believes she cannot comprehend it or that the communication would adversely affect her health or well-being; that where (as here) the client is incapable of effectively assisting in her own defense, the appointment of a guardian should be sought; and that counsel may continue to represent her unless the course he is forced to take would be imprudent or his continued representation would adversely affect the client.

Currency note

This opinion was issued in 1989, before New Jersey's adoption of the 2004 revisions to the Rules of Professional Conduct. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule mentioned here.

Common questions

Q: Must a lawyer keep an apparently incompetent client informed about the case?

A: Per the opinion, the lawyer must attempt to effectively advise the client of the status unless he "soundly believes" she cannot comprehend it or that the communication would adversely affect her health or well-being.

Q: When should the lawyer seek appointment of a guardian?

A: The Committee said that where the client cannot adequately act in her own interest or effectively assist in her own defense, based on a firm professional judgment, the appointment of a guardian should be sought.

Q: Can the lawyer keep representing a client who appears incompetent?

A: Yes, the Committee concluded counsel may continue, unless the course of action he is forced to take would be imprudent or his continued representation would adversely affect the client.

Q: Does the lawyer become the client's guardian by default?

A: No. The opinion noted that even acting as a de facto guardian, the lawyer is not the client's guardian and "may not substitute his own conception of 'best interest' for that of the client."

Background and rules framework

The opinion applies NJ RPC 1.4 (communication), RPC 1.14 (client with diminished capacity; maintaining a normal relationship and seeking a guardian only when reasonably necessary), RPC 1.16 (declining or terminating representation), RPC 1.6 (confidentiality), and RPC 3.3 (candor toward the tribunal); the corresponding Model Rules are 1.4, 1.14, 1.16, 1.6, and 3.3. The Committee drew on the commentary to Model Rule 1.14 (Proposed Final Draft 1981) and emphasized that conflicting duties (for example, confidentiality versus candor) must be resolved on the facts.

Citations and references

Rules of Professional Conduct:

• MR 1.4 / NJ RPC 1.4 (keeping the client informed)
• MR 1.14 / NJ RPC 1.14 (client with diminished capacity)
• MR 1.16 / NJ RPC 1.16 (declining or terminating representation)
• MR 1.6 / NJ RPC 1.6 (confidentiality)
• MR 3.3 / NJ RPC 3.3 (candor toward the tribunal)

Court Rules:

• R. 1:19-2 (jurisdiction of the Committee; matters in pending actions)

Other references:

• Model Rules of Professional Conduct, Rule 1.14 comment (Proposed Final Draft 1981)

See also

• NJ ACPE Op. 673: Privileged Communications, Disclosure to Prevent Fraud Upon the Tribunal
• NJ ACPE Op. 677: Confidential Communications, Disclosure of a Client's Act of Fraud Upon a Tribunal

Source

• Full text (Justia mirror): https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp625-1.html
• Issuing authority: New Jersey Supreme Court Advisory Committee on Professional Ethics, via the NJ Courts Supreme Court Committees page

Original opinion text

Reproduced from a full-text mirror of the official opinion for research purposes. The linked official source controls.

123 N.J.L.J. 991, April 20, 1989

OPINION 625

Representation of Client Believed to be Incompetent

This inquiry presents the following factual situation:

Inquirer represents a public employee in a Civil Service case in which she is appealing the alleged improper termination of her employment. One of the issues involved was her tardiness in reporting for work. On the day of the hearing before an administrative law judge, she arrived 40 minutes late, although warned by counsel of the negative impact a late arrival would have upon her case.

Upon her arrival, and thereafter, the client appeared irrational, totally incapable of assisting counsel, agitated and potentially violent. The administrative law judge conducted an in camera hearing on counsel's request for a continuance outside the presence of the client. A transcript of that hearing indicates that her husband testified that within the week before the hearing his wife had exhibited bizarre, paranoid behavior patterns. The husband further testified that he had been in touch with a crisis intervention center, is attempting to have his wife committed, and that the wife has threatened to file ethics complaints against counsel. At the request of the husband, counsel has not advised the client of the reasons for the continuance.

(a) A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.

• A question is presented as to whether an attorney is ethically bound to obey a Court's order where the client is not aware or capable of understanding the order. We understand this question as referring to an "Order" requiring the appointment of a guardian ad litem. Our reading of the transcript indicates that no such order was made. We, therefore, decline to respond to that inquiry. Further, if such an order were made, we could decline to respond since it could be an issue which would be the subject of a pending action. See R. 1:19-2.

(a) When a client's ability to make adequately considered decisions in connection with the representation is impaired, whether because of minority, mental disability or for some other reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client. (b) A lawyer shall seek the appointment of a guardian, 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.

RPC 1.16 - Declining or Terminating Representation (a) Except as stated in paragraph (c), a lawyer shall not represent a client or, where representation has commenced, shall withdraw from the representation of a client if:...... (3) the lawyer is discharged. (b) Except as stated in paragraph (c), a lawyer may withdraw from representing a client if withdrawal can be accomplished without material adverse effect on the interests of the client, or if:...... (3) A client insists upon pursuing an objective that the lawyer considers repugnant or imprudent;...... (6) Other good cause for withdrawal exists. (c) When required to do so by rule or when ordered to do so by a tribunal, a lawyer shall continue representation notwithstanding good cause for terminating the representation.

(a) A lawyer shall not knowingly:............ (5) fail to disclose to the tribunal a material fact with knowledge that the tribunal may tend to be misled by such failure.

The determination of a lawyer's responsibilities to a client who suffers from a mental infirmity or disorder is not an easy one. That determination must be based upon a sound judgment of the facts and circumstances involved. Usually, the attorney-client relationship is grounded in an assumption that a client, properly advised, can reach an informed decision. On the other hand, a mentally incapacitated person may neither have the ability or the legal authority to make a decision. However, there are varying degrees of incapacity as well as different levels of ability. Thus, one who has mental dysfunction may not be able to make a myriad of other decisions affecting his or her welfare. Model Rules of Professional Conduct Rule 1.14 comment (Proposed Final Draft 1981).

Even though a disability exists, a lawyer's obligation to treat a client attentively continues. "If the person has no guardian or legal representative, the lawyer often must act as de facto guardian." Ibid. However, under those circumstances the lawyer is not his client's "guardian" and may not "substitute his own conception of 'best interest' for that of the client." Ibid. Where the best interests of the client would be served, a lawyer may be under the obligation to have a guardian appointed. Ibid. Such an evaluation must be based on the lawyer's professional judgment. Such a judgment should be made, if possible, after consultation with appropriate medical and family assistance and should consider factors such as the expense to the client and any traumatic or adverse effect of such a proceeding.

The difficulties which inhere in situations such as that presented here are obvious. Several of a lawyer's basic duties may conflict. For example, the obligation of confidentiality, RPC 1.6, and the obligation of candor toward a tribunal, RPC 3.3. Other such conflicts may be posed. Thus, no hard, fast or inflexible rules can be formulated. We reiterate: the ethical obligations of a lawyer in matters of this type have to be resolved on the facts and circumstances involved recognizing that the "client is entitled to reasonable competence, preparation and communications... ." Model Rules of Professional Conduct Rule 1.14 comment, supra.

Thus, it is our opinion that the lawyer must attempt to effectively advise the client of the status of the case unless he soundly believes that she cannot comprehend or that the communication would adversely affect her health or well-being. If either exists or, as here, she is incapable of effectively assisting in her own defense (based on a firm professional judgment), the appointment of a guardian should be sought. Counsel may continue to represent his client here unless he believes the course of action he is forced to take would be imprudent or if his continued representation would adversely affect his client.