What can a lawyer do when a depressed client won't help prepare for trial and forbids a continuance?

Plain-English summary

A lawyer represented a client in a divorce involving property and child custody. The client was very depressed, had not sought treatment, refused to keep or reschedule trial-preparation appointments, and forbade the lawyer from seeking a continuance for fear of undermining his case. The committee starts with the lawyer's first obligation, which is to try to make the client understand the great risk of going to trial without preparing, and the second obligation under Rule 1.6 to protect the client's confidential information. The client's depression is confidential client information that he has forbidden the lawyer to reveal, and the lawyer has no duty to disclose it to the court.

The committee then applies Rule 1.14. Because the client's depression appears to interfere with maintaining a normal attorney-client relationship and puts him at risk of an adverse outcome, Rule 1.14(b) permits the lawyer to consult with family members and others positioned to protect the client. The client lives with his parents and has a close friend who attended all prior hearings, so the committee concludes it would be appropriate to contact the parents and the friend to ask them to persuade the client to meet with the lawyer before trial.

The committee addresses, and declines to recommend, more drastic steps. Seeking appointment of a guardian would not fit, because the client is otherwise functional and a good parent, and a guardianship petition would give the client's spouse ammunition in the divorce. If family and friend cannot persuade the client, the committee invokes Comment 2 to Rule 1.14 ("the lawyer often must act as de facto guardian") and frames the final judgment as a balance: the lawyer should normally err on the side of preserving client confidences, but if going to trial unprepared poses the greater risk to the client's interests, the lawyer would be justified in seeking a continuance despite the client's contrary direction.

In practice

Under this opinion, conduct that contacts an impaired client's family and close friend to encourage cooperation is permitted under Rule 1.14(b), with disclosure of confidential information limited to what is necessary to protect the client. Per the opinion, the lawyer's first step is to make the client understand the risk of an unprepared trial, and the depression itself stays confidential under Rule 1.6 absent a duty to disclose. The committee frames the continuance decision as a fact-specific balance, concluding the lawyer should normally favor preserving confidences but may be justified in seeking a continuance over the client's objection if proceeding unprepared is the greater risk.

Common questions

Q: Can the lawyer tell the client's family about his depression to get help?

A: Rule 1.14(b) permits the lawyer to consult family members and others positioned to protect the client when the client lacks capacity to make adequately considered decisions and is at risk of substantial harm, disclosing confidential information only to the extent necessary to protect the client.

Q: Must the lawyer disclose the client's depression to the court?

A: No. The committee treats the depression as confidential client information under Rule 1.6 that the client has forbidden the lawyer to reveal, and the lawyer has no duty to disclose it to the court.

Q: Can the lawyer seek a continuance even though the client said not to?

A: The committee frames this as a balance. The lawyer should normally err on the side of preserving confidences, but if going to trial without preparation poses the greater risk to the client's interests, the lawyer would be justified in seeking a continuance despite the client's direction.

Background and rules framework

The opinion interprets Mass. R. Prof. C. 1.14 (client with diminished capacity; protective action) together with Rule 1.6 (confidentiality), and references Rule 1.2(a) and Rule 1.4 on the allocation of authority and communication with the client. These correspond to the Model Rules of the same numbers.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.14 / Mass. R. Prof. C. 1.14 (client with diminished capacity; Comment 2 on acting as de facto guardian)
• Model Rule 1.6 / Mass. R. Prof. C. 1.6 (confidentiality)
• Model Rule 1.2 / Mass. R. Prof. C. 1.2(a) (allocation of authority); Model Rule 1.4 / Mass. R. Prof. C. 1.4 (communication)

Cases:

• In re Georgette, 439 Mass. 28 (2003), cited on a lawyer's responsibility to act over a client's objection

Other opinions cited:

• MBA Opinion 04-1 (another application of Rule 1.14)

See also

• MA Bar Ethics Op. 05-05: Representing a son in a guardianship over the client
• MA Bar Ethics Op. 05-06: Confidentiality and reporting a client's partner

Source

• Landing page: https://www.massbar.org/publications/ethics-opinions/ethics-opinion-article/ethics-opinions-2005-opinion-05-03/opinion-05-03