Your client tells you that if he is convicted, he will not go quietly. Perhaps your client has difficulty understanding their legal options in the case because of a mental deficiency. Or maybe your client wants to make all the tactical decisions about their case.
There are a limitless number of scenarios that lawyers may find themselves in that may require additional assistance regarding ethical obligations. Thankfully, lawyers needing advice have a place to go for answers. The State Bar of Michigan Ethics Helpline provides guidance for lawyers in difficult and complex situations. Below are examples of guidance received by members like you who faced ethical conundrums.
THE CLIENT WHO THREATENS THEMSELF OR OTHERS
There is no ethical obligation to act “except in limited circumstances where failure to act constitutes assisting the client.”1 However, a lawyer may act if the lawyer’s knowledge may enable them to prevent the crime.2 MRPC 1.6(c) states, in part, that a lawyer may reveal a client’s intent to commit a crime and is free to disclose the information necessary to prevent the crime even if that information constitutes a client confidence or secret.
If the lawyer would like to act, the first step is determining whether the client intends to commit a crime. “Knows” is defined in the comments to MRPC 1.0 under Terminology as “actual knowledge of the fact in question. A person’s knowledge may be inferred from the circumstances.” MRPC 1.6 Comment, Disclosure Adverse to Client, provides some guidance:
It is arguable that the lawyer should have a professional obligation to make a disclosure in order to prevent homicide or serious bodily injury which the lawyer knows is intended by the client. However, it is very difficult for a lawyer to “know” when such a heinous purpose will actually be carried out, for the client may have a change of mind. To require disclosure when the client intends such an act, at the risk of professional discipline if the assessment of the client’s purpose turns out to be wrong, would be to impose a penal risk that might interfere with the lawyer’s resolution of an inherently difficult moral dilemma.
Accordingly, if the lawyer knows the client intends to commit homicide or great bodily harm, they are free to disclose the information necessary to prevent the act, but to no greater extent than the lawyer reasonably believes necessary and that the timing is imminent. Where practical, the lawyer should seek to persuade the client to take suitable action.
Factors the Michigan lawyer may weigh in determining whether to disclose include the magnitude of the impending threat, proximity and likelihood of the contemplated threat, and the imminence of threat coming to fruition. Other factors include the nature of the lawyer’s relationship with the client and those who might be injured by the client, the lawyer’s own involvement in the transaction, and factors that may extenuate the conduct in question. The lawyer is given discretion because “whether the lawyer’s concern is based on moral or legal considerations, the interest in preventing the harm may be more compelling than the interest in preserving confidentiality of information.”3 It should be noted that this disclosure is permissive, not mandatory.4
Moreover, if the client has been diagnosed with a disability that affects their capacity, MRPC 1.14(b) provides that the lawyer may “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.”
THE MENTALLY DEFICIENT CLIENT
Dealing with diminished-capacity clients is one of the most challenging dynamics in the lawyer-client relationship.
MRPC 1.14 states that the lawyer must “as far as reasonably possible, maintain a normal client-lawyer relationship with the client” whose ability to make decisions relating to the representation is impaired, whether by age, mental disability, or some other reason. The lawyer must treat the client with dignity and respect.
How a lawyer charts a course of representation with a client with diminished capacity is always challenging because the duty of confidentiality must be honored; disclosing the client’s condition can have a detrimental impact on the client’s position in the subject matter of the representation; conflicts of interest may arise; and the client can have varying types of, or temporally intermittent, capacity.5 Moreover, disputes can arise between a protected individual and their representative, which can lead to a division in loyalty due to a divergence between the lawyer’s obligation to the actual client and the fiduciary who has the legal right to make certain decisions on behalf of the protected individual. In this case, the lawyer must make both ethical and legal determinations in how to proceed.
The comments to MRPC 1.14 state that the lawyer may seek guidance from an appropriate diagnostician in assessing the situation. Only when the lawyer reasonably believes that the client cannot adequately act in the client’s own interest may they seek appointment of a guardian or take other protective action.6 The definition of “other protective action” is broad and could include consulting with family members, contacting the client’s diagnostician, seeking conservatorship, or requesting appointment of a guardian ad litem.7
THE TACTICAL CLIENT
The lawyer has a client who wants to make all the tactical decisions about the case. This issue often arises when the client demands that the lawyer take action that is not ethically permitted or not in the client’s best interest. Clients have the right to make bad decisions, but they do not have the right to require the lawyer to do something unethical, illegal, repugnant, or imprudent.8
MRPC 1.2 provides for the scope of representation, which states in part:
(a) ... A lawyer shall abide by a client’s decision whether to accept an offer of settlement or mediation evaluation of a matter. In a criminal case, the lawyer shall abide by the client’s decision, after consultation with the lawyer, with respect to a plea to be entered, whether to waive jury trial, and whether the client will testify. In representing a client, a lawyer may, where permissible, exercise professional judgment to waive or fail to assert a right or position of the client.
Comment, Scope of Representation: The client has ultimate authority to determine the purposes to be served by legal representation, within the limits imposed by law and the lawyer’s professional obligations. Within those limits, a client also hasv the right to consult with the lawyer about the means to be used in pursuing those objectives. ... In questions of means, the lawyer should assume responsibility for tactical issues but should defer to the client regarding such questions as the expense to be incurred and concern for third persons who might be adversely affected.
The intent of the Rules of Professional Conduct is for the lawyer to see to it that the client’s subjective desires and objectives are the goal of the lawyer — as long as they are not illegal, fraudulent, or put the lawyer in violation of the rules.9 If the client insists on moving forward in a manner that places the lawyer in a position where the resulting action would be unethical, illegal, repugnant, or imprudent, the lawyer should consider withdrawal under MRPC 1.16.
The lawyers who staff the State Bar of Michigan Ethics Helpline provide confidential and informal opinions that are non-binding and advisory to Bar members regarding ethical issues pertaining to prospective conduct. The SBM Ethics webpage has information on issues the helpline can and cannot help with.10 When faced with an ethical question, the helpline is there to assist. Contact the SBM Ethics Helpline at (877) 558-4760 for assistance; calls are returned during business hours.