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Ethics Opinion

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CI-1055

October 19, 1984

SYLLABUS

  1. A lawyer should consider any underlying circumstances of the client's request for withdrawal.
  2. If requested by the client to withdraw, and there is good reason to believe the client is mentally incompetent, the lawyer may exercise professional judgment and continue legal representation to safeguard the client's best interests.
  3. Continued representation of the mentally incompetent client cannot and should not violate the lawyer-client privilege, nor should it prejudice the client's interests by informing the adversary of the client's mental condition.
  4. The lawyer's professional judgment concerning the client's competency should be corroborated by professional consultation and reports.
  5. The lawyer representing a mentally disabled client may file a petition for appointment of a conservator or guardian to protect the interests of the client.

    Reference: MCPR DR 2-110(B)(4), DR 4-101, DR 7-101(A) and (B); People v. Wondero, 57 Mich App 244 (1974). CI-882 is distinguished.

TEXT

A lawyer been asked by the client to withdraw a pending petition for workers compensation benefits. A report from the employer's board-certified psychiatrist indicates the client is "extremely confused, paranoid . . ." and is "totally incompetent mentally, legally and financially." Given these facts, the lawyer asks whether withdrawal as counsel is required.

While it is true that MCPR DR 2-110(B)(4) indicates withdrawal is mandatory when the lawyer is discharged by the client, there are nevertheless duties and responsibilities placed upon the lawyer who represents a client with mental incompetence. MCPR DR 7-101(B)(1) provides:

    "In his representation of a client, a lawyer may:

      ". . .

      "Where permissible, exercise his professional judgment to waive or fail to assert a right or position of his client."

This provision indicates that a lawyer has a duty to consider the underlying circumstances for the client's request to withdraw the petition. If, in the lawyer's professional judgment, withdrawal would not advance the best interests of the client, and the lawyer has serious doubt concerning the stability and competency of the client, the lawyer must take appropriate steps to safeguard the claimant's interest. ABA Model Code of Professional Responsibility EC 7-12 is informative on this issue:

    "Any mental or physical condition of a client that renders him incapable of making a considered judgment on his own behalf casts additional responsibilities upon his lawyer . . . . If a client under disability has no legal representative, his lawyer may be compelled in Court proceedings to make decisions on behalf of the client . . . . If the disability of a client and the lack of a legal representative compel the lawyer should consider all circumstances then prevailing and act with care to safeguard and advance the interests of his client. But obviously a lawyer cannot perform any act or make any decision which the law requires his client to perform or make, either acting for himself if competent, or by a duly constituted representative if legally incompetent."

The lawyer cannot proceed with the petition on behalf of the client because that is a decision the client alone must make. However, a lawyer has the duty to safeguard the client's interests while the client labors under a disability. A lawyer may be justified in failing to withdraw from a case if the client has not made an informed and intelligent decision concerning the representation.

The Committee in mindful of the fact that the lawyer cannot allow the claim to become stale while awaiting further clarification of the client's competency. The lawyer may find it in the client's best interest to petition the court for appointment of a legal representative. CI-882 indicates that such action could prejudice the client's interests in that the adversary would be informed as to the claimant's mental condition. A distinction must be made, however, concerning such action in the instant case. The facts indicate that a psychiatric examination was performed on behalf of the employer. Presumably the employer has a copy of the psychiatric report and is already aware of the claimant's mental condition. MCPR DR 4-101, which prohibits disclosure of lawyer/client privileged communications, would not be implicated if the psychiatric report is revealed.

While the Committee cannot offer a legal opinion on the scope of lawyer/client privilege nor can it recommend a course of action in dealing with the client, it is clear that the lawyer must evaluate the underlying circumstances of the request for withdrawal, and determine in the lawyer's professional judgment whether such a request is in the client's best interests. The Committee can state unequivocally that the lawyer cannot withdraw without due regard for the consequences adverse to the client's best interests. Accordingly, the lawyer must make a decision under DR 7-101(B)(1) concerning the client's request. The case of People v. Wondero, 57 Mich App 244 (1974), suggests that when making such a decision, a lawyer's professional judgment must be corroborated by professional consultations and diagnostic reports. If the lawyer concludes that the client may be laboring under a disability, then the lawyer must accept the additional responsibilities consistent with the client's mental condition.

 
     

 

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