What should a lawyer do when there is good reason to doubt a litigation client's mental competency?

Plain-English summary

The committee was asked about a lawyer's ethical rights, duties, and responsibilities when the lawyer has good cause to doubt the mental competency of a client being represented in pending litigation. It concluded that when such doubts arise, the lawyer owes the client a duty to express those doubts to the client and to request permission to obtain a judicial determination of the competency issue, explaining to the client the safeguards and protections the law affords incompetents and striving to obtain them for the client.

The committee recognized that great difficulty arises if the client refuses to consent to a competency determination. A majority concluded that in that event the lawyer should move for leave to withdraw from the cause. The motion should not mention incompetency and should be framed to cause the least possible prejudice to the client's rights, citing Schetter v. Schetter. Until the court permits withdrawal, the lawyer should continue efforts to protect the client's rights. The committee noted, for cases where the client consents, that the law affords various avenues for deciding the issue, citing Bodnar v. Bodnar, and directed a comparison to Opinion 85-4.

Currency note

This opinion was issued in 1974, before The Florida Bar's adoption of the 2006 revisions to the Rules of Professional Conduct. It applied the former Code of Professional Responsibility, which has since been replaced. Treat this page as historical context, not current guidance. Verify against current Rules 4-1.14 and 4-1.16 before relying on any specific requirement mentioned here.

Common questions

Q: What is the lawyer's first step when doubting a client's competency?

A: Under this opinion, the lawyer must express the doubts to the client and request permission to obtain a judicial determination of competency.

Q: What if the client refuses a competency determination?

A: A majority concluded the lawyer should move for leave to withdraw, framing the motion to avoid mentioning incompetency and to minimize prejudice to the client.

Q: Can the lawyer stop working on the case once the motion is filed?

A: No. The committee said the lawyer should continue to protect the client's rights until the court permits withdrawal.

Background and rules framework

The opinion applied the former Code of Professional Responsibility to a client of doubtful competency. In current Florida practice the subject corresponds to Rule 4-1.14 (client under a disability) and Rule 4-1.16 (declining or terminating representation); the Model Rule analogues are 1.14 and 1.16.

Citations and references

Cases:

• Bodnar v. Bodnar, 441 F.2d 1103 (5th Cir. 1971), cited on avenues for deciding competency when the client consents
• Schetter v. Schetter, 239 So.2d 51 (Fla. 4th DCA 1970), cited on framing a withdrawal motion

Other opinions cited:

• Florida Opinion 85-4 (the opinion directs a comparison)

See also

No sibling opinions yet indexed.

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-73-25/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-73-25-1.pdf

Original opinion text

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

FLORIDA BAR ETHICS OPINION
OPINION 73-25
April 18, 1974
Advisory ethics opinions are not binding.
A lawyer having good reason to doubt a client's competency owes his client a duty to express such doubts to him and request permission to obtain a judicial determination of the competency issue. Then, if the client refuses to consent to a competency determination, the lawyer should move for leave to withdraw from the cause, but should continue to protect his client's rights until withdrawal is permitted by the court.
Note: Compare Opinion 85-4.
Cases: Bodnar v. Bodnar, 441 F.2d 1103 (5th Cir. 1971); Schetter v. Schetter, 239 So.2d 51 (Fla. 4th DCA 1970)
Vice Chairman Daniels stated the opinion of the committee:
Inquiry is made concerning a lawyer's ethical rights, duties and responsibilities when he has good cause to doubt the mental competency of a client being represented in pending litigation. When such doubts arise, the lawyer owes his client a duty to express such doubts to him and request permission to obtain a judicial determination of the competency issue. The law affords incompetents numerous safeguards and protections which the lawyer should explain to the client. The lawyer should strive to obtain these safeguards and protections for a client deemed, for good reason, to be incompetent.
If the client consents to a competency determination, the law affords various avenues for deciding the issue. See, e.g., Bodnar v. Bodnar, 441 F.2d 1103 (5th Cir. 1971). However, ethical questions of great difficulty arise if the client refuses to consent to a competency determination.
A majority of the Committee is of the opinion that if the client refuses to consent to a competency determination, a lawyer having good reason to doubt such client's competency should move for leave to withdraw from the cause. The motion for leave to withdraw should not mention incompetency and should be framed so as to cause the least possible prejudice to the client's rights. Cf., Schetter v. Schetter, 239 So.2d 51 (Fla. 4th DCA 1970). Until withdrawal is permitted by the court, the lawyer should continue his efforts to protect the client's rights.