If a client under a mental disability can't understand a favorable plea deal, must the lawyer get a guardian, or can the lawyer accept it?

Plain-English summary

The committee agreed with a committee member's memorandum addressing a question that, as posed, never actually came to pass. A client with at least a partial mental disability, receiving disability benefits and without funds to retain counsel, faced charges; the prosecutor was willing to dismiss the charges with no restitution if the client kept appointments with her mental health counselor. The client indicated the arrangement was acceptable but said she did not understand it. The lawyer asked whether he had authority to enter a plea agreement the client could not understand, or whether he had to obtain a guardian ad litem under RPC 1.13.

The memorandum walked through the rules: RPC 1.1's competence requirement, RPC 1.4(b)'s duty to explain a matter to the extent reasonably necessary for the client to make informed decisions, and RPC 1.13 (client under disability), under which a lawyer "shall, as far as reasonably possible, maintain a normal client-lawyer relationship" and "may seek the appointment of a guardian or take other protective action" when the lawyer reasonably believes the client cannot adequately act in the client's own interest.

Emphasizing that RPC 1.13 uses the permissive "may," the memorandum concluded that where the lawyer acts as the client's agent, the lawyer would violate his responsibilities by not accepting a no-strings dismissal of the charges, even if the client were incapable of understanding it, because nothing is being given up on the client's behalf and it is in the client's best interest. The memorandum suggested that had the lawyer not accepted, he could be subject to discipline for violating the rules.

Currency note

This opinion was issued in 1988, before the 2006 revisions to the Washington Rules of Professional Conduct. The rule then numbered Washington RPC 1.13 (Client Under Disability) corresponds to Model Rule 1.14 (Client with Diminished Capacity); RPC 1.1 (competence) and RPC 1.4(b) (communication) correspond to Model Rules 1.1 and 1.4. All have since been amended. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule or requirement mentioned here.

Common questions

Q: Must a lawyer get a guardian before accepting a plea deal a disabled client can't understand?

A: Per the memorandum the committee adopted, no. It emphasized that RPC 1.13's authority to seek a guardian uses the permissive "may," so obtaining a guardian was not required to accept the disposition.

Q: Could the lawyer accept a no-strings dismissal the client could not understand?

A: Yes. The memorandum concluded that where the lawyer acts as the client's agent, the lawyer would violate his responsibilities by not accepting a no-strings dismissal, even if the client could not understand it, because nothing is given up and it is in the client's best interest.

Q: What rules did the memorandum tie the analysis to?

A: It cited RPC 1.1 (competence), RPC 1.4(b) (explaining the matter to the extent reasonably necessary for informed decisions), and RPC 1.13 (client under disability), along with the rules' preamble and terminology on "consult" and "reasonable."

Background and rules framework

The opinion applies the rules then numbered Washington RPC 1.1 (competence), RPC 1.4(b) (communication), and RPC 1.13 (client under disability). Washington's RPC 1.13 corresponds to Model Rule 1.14 (client with diminished capacity); RPC 1.1 and RPC 1.4 correspond to Model Rules 1.1 and 1.4. The memorandum made the permissive "may" in RPC 1.13(b) the hinge: protective action such as seeking a guardian is optional, so where accepting a favorable disposition gives up nothing for the client, the lawyer's duty was to accept it rather than to seek a guardian.

Citations and references

Rules of Professional Conduct:

• Washington RPC 1.1 (competence), corresponding to Model Rule 1.1.
• Washington RPC 1.4(b) (communication), corresponding to Model Rule 1.4(b).
• Washington RPC 1.13 (client under disability), corresponding to Model Rule 1.14.

See also

• ABA Formal Op. 96-404: protective action for a client under a disability
• Alabama Ethics Op. 1995-06: seeking a guardian for a client too unstable to assist
• WSBA Ethics Op. 960: a parent directing a lawyer to stop representing a minor child

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=284

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Advisory Opinion: 1204
Year Issued: 1988
RPC(s): RPC 1.1; 1.4 (b); 1.13
Subject: Client under disability; inability to understand proposed plea agreement

The Committee agreed with the opinion of the Committee members memorandum which follows:

This is a potential ethics question which never came to pass. Client went into attorney's office to keep her out of jail. She was suffering from at least a partial mental disability. She was receiving disability benefits as a result of her mental condition and is without funds to retain counsel. Attorney went to arraignment and obtained discovery. Prosecutor wanted client to obtain treatment or leave town and was willing to dismiss any charges with no restitution to be made if she would keep appointments with her mental health counselor.

Client indicated that this was okay with her but she didn't understand it. Attorney asks whether he has authority to enter into a plea agreement when the client is not capable of understanding it or does he have to obtain a Guardian Ad Litem pursuant to RPC 1.13.

This particular attorney has had two or three requests over the past 15 months and is great at setting up straw men. It should be pointed out to him that the Rules of Professional Conduct PREAMBLE provides "that justice is based upon the rule of law grounded in respect for the dignity of the individual ..." and a "lawyer's ... role requires an understanding by lawyers of their relationship with and function in our legal system.' "

Under TERMINOLOGY we find that "consult" or 'consultation' denotes communication of information reasonably sufficient (emphasis added) to permit the client to appreciate the significance of the matter in question." Further, "reasonable" or "reasonably" when used in relation to conduct by a lawyer denotes the conduct of a reasonably prudent and competent lawyer. RPC 1.1 as it relates to competence states "a lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation." RPC 1.4 (b) states "a lawyer shall explain the matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation."

Last, but not least, RPC 1.13 - Client Under Disability - provides that: "(a) When a client's ability to make adequately considered decisions in connection with the representation is impaired, whether because of a 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) goes on to provide that: " When the lawyer reasonably believes that the client cannot adequately act in the client's own interest, a lawyer may seek the appointment of a guardian or take other protective action with respect to a client."

In light of the foregoing and the fact that the permissive "may" is used, it is respectfully suggested that where the attorney undertook to be the agent of the client, he would violate his responsibilities not to accept a no strings attached dismissal of the charges on behalf of the client - even if the client were incapable of understanding. The reasoning behind this is that it is in the client's best interests and there can be no dispute by anyone that nothing is being given up on behalf of the client.

It is suggested that had the attorney not done so, he could very well be subject to discipline for violation of the foregoing rules.