Note: All information found within the below may be outdated. Readers are strongly encouraged to recheck rules, cited sources, ethics opinions, etc.

Ethics Article: Representing the Incompetent or Disabled Client
Representing the Incompetent or Disabled Client
By Thomas K. Byerley, Regulation Counsel
MBJ December 1998

    There are times when a lawyer is faced with representing a client who is either legally incompetent or otherwise disabled. This disability may be known by the lawyer at the time that the representation starts, or may develop after an otherwise normal lawyer-client relationship is established. Ethical dilemmas exist for a lawyer attempting to represent the disabled client's best interests, especially when the lawyer is unsure whether the client fully understands the legal process involved.

    MRPC 1.2(a) states in part: "...A lawyer shall abide by a client's decision whether to accept an offer of settlement or mediation evaluation of a matter...." The official comment to this rule offers the following guidance on mentally disabled clients:

      "...In a case in which the client appears to be suffering mental disability, the lawyer's duty to abide by the client's decisions is to be guided by reference to Rule 1.14...."

    MRPC 1.14 offers considerable guidance. That rule provides:

      "(a) When a client's ability to make adequately considered decisions in connection with the representation is impaired, whether because of minority or 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 may 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."

    As stated in the comments to MRPC 1.14, "...[t]he fact that a client suffers from a disability does not diminish the lawyer's obligation to treat the client with attention and respect. If the person has no guardian or legal representative, the lawyer often must act de facto as guardian...."

    Under MRPC 1.6, a lawyer may not reveal the confidences and secrets of the client. Therefore, a lawyer who learns through representation that the client may be disabled or unable to make appropriate decisions on the subject of the representation may struggle with whether he or she may disclose the client's condition to anyone. Under MRPC 1.6(c), the lawyer may reveal confidences or secrets of the client only under the following circumstances:

    • With the consent of the client;
    • When required by law;
    • To rectify the consequences of a client's illegal or fraudulent act; or
    • To prevent a crime.

    The requirements of MRPC 1.6 must also be balanced with MRPC 3.3, which provides that a lawyer shall not:

    • Knowingly make a false statement of material fact or law;
    • Fail to disclose a material fact; or
    • Fail to disclose controlling legal authority adverse to the client.

    These ethics rules, taken together, counsel the lawyer to carefully assess the client's mental competency and to take corrective action when the lawyer finds that the client is not able to make decisions in the client's best interest. Under MRPC 1.14, a lawyer may seek the appointment of a conservator or guardian for the client when the lawyer reasonably believes that the client cannot adequately act in his or her own interest. Sometimes, this requires the lawyer to reveal otherwise "confidential" information about the client to the probate court.

    The State Bar of Michigan's Standing Committee on Professional Ethics has issued some important written opinions interpreting the ethics rules mentioned above as they relate to the mentally disabled client. In RI-51, the committee opined that "there need not be an adjudication that a client is incompetent to stand trial in order for the client to be unable to make decisions about the representation." Further, the opinion states that "a lawyer should have independent corroboration of the client's condition before contravening a client's request regarding the representation."

    In RI-76, the lawyer was faced with the ethical dilemma of representing a client with a history of mental illness and the client refused to consider an offer of settlement deemed by the lawyer to be in the best interest of the client. That opinion stated that if the lawyer reasonably believes that the client cannot adequately act in the client's own best interest, the lawyer may petition the probate court for appointment of a person to act in the client's interest. Another option available to the lawyer is to seek a protective order, pursuant to MCL 700.469(2), that would authorize the acceptance of the settlement offer. RI-76 further states:

      "Forcing a settlement on an unconsenting client so that the lawyer can obtain a contingency fee is a conflict of interest. However, MRPC 1. 2 allows a lawyer to consider MRPC 1.14 when evaluating whether or not to abide by a client's decision. As a neutral party, the probate judge will be making the ultimate decision on behalf of the client as to whether the proposed settlement is in the client's best interest. Therefore, the lawyer could reasonably believe the representation will not be adversely affected by the petition pursuant to MRPC 1.14, and the conflict of interest is not an impermissible one."

    In some cases, a lawyer may be faced with the situation in which the disabled client may be asked to sign a legal document, such as a consent to have a guardian or conservator appointed. In ethics opinion RI-176, it was opined that a lawyer may not undertake representation which requires a client to possess the requisite competence to execute legal documents and also subjects the client to proceedings which, if successful, would adjudge the client to be incompetent to handle legal affairs.

    Therefore, when faced with representing a client with a mental disability, the lawyer needs to carefully monitor the client's competence to make the necessary decisions and must take the appropriate corrective action when the lawyer discovers this disability. If the guidelines of MRPC 1.14 and the ethics opinions are considered, the lawyer should be able to successfully complete the legal representation of the incompetent or disabled client.

    "Focus on Professional Responsibility" is presented as a monthly feature to address ethics, professionalism, and other regulatory issues affecting Michigan lawyers.