In a criminal case, may defense counsel raise an insanity defense without the client's consent, or over the client's objection?

Plain-English summary

A lawyer represented a client accused of a crime. The lawyer believed the client, though mentally competent to stand trial, suffered from a delusional belief structure that could support a not-guilty-by-reason-of-insanity defense, and that asserting it was clearly the most desirable course. The client had not authorized that defense and might forbid it. The lawyer asked whether he could enter the insanity plea without the client's consent, or over the client's objection.

The Commission first reframed the facts. When representing a possibly disabled client, counsel must determine whether a question exists about the client's competence to stand trial, and (citing Thursby v. State) it is counsel's duty to raise that issue with the court, which then decides competence.

Once the court has found the client competent, the Commission held that it is the client who must make the ultimate decision whether to assert the insanity defense. Under former Bar Rule 3.6(a) the lawyer must apply his best judgment and fully inform the client of the options so the client can make an informed decision, but the lawyer's task is to advocate the client's wishes, not to override them. The lawyer might choose to withdraw under Rule 3.5(c), but he cannot ignore the client's wishes or substitute his own judgment for the client's. Accordingly, the attorney may not enter a plea of not guilty by reason of insanity without the client's consent.

Currency note

This opinion was issued in 1985, before Maine's replacement of the former Maine Bar Rules with the Maine Rules of Professional Conduct (effective August 1, 2009). Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Who decides whether to raise an insanity defense, the lawyer or the client?

A: The opinion concluded the client decides. Once the court finds the client competent to stand trial, the ultimate decision whether to assert a not-guilty-by-reason-of-insanity defense belongs to the client, not counsel.

Q: Can a lawyer enter an insanity plea over the client's objection?

A: No. The opinion concluded the lawyer cannot ignore the client's wishes and may not enter the plea without the client's consent; counsel must not substitute his own judgment for the client's.

Q: What is counsel's duty if he believes the client may be incompetent to stand trial?

A: The opinion concluded that, citing Thursby v. State, it is the duty of counsel to raise the competence question with the court, which then determines whether the client is competent to stand trial.

Q: What can the lawyer do if he disagrees with the client's choice?

A: The opinion concluded he must fully advise the client of the options and may seek to withdraw under Rule 3.5(c), but he cannot override the competent client's decision.

Background and rules framework

The opinion interprets former Maine Bar Rule 3.6(a) (the lawyer's duty to apply best judgment and inform the client) and Rule 3.5(c) (withdrawal). These correspond to ABA Model Rule 1.2(a) (allocation of authority, under which the client decides the plea in a criminal case), Model Rule 1.4 (communication), Model Rule 1.14 (client with diminished capacity), and Model Rule 1.16 (withdrawal). The opinion quotes ABA Model Code EC 7-7, which assigns the plea decision to the client.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.2(a) (client decides the plea); Model Rule 1.4 (communication); Model Rule 1.14 (diminished-capacity clients); Model Rule 1.16 (withdrawal)
• Maine Bar Rules 3.6(a), 3.5(c)
• ABA Model Code of Professional Responsibility EC 7-7

Statutes:

• 18-A M.R.S.A. section 5-101 et seq. (appointment of a conservator or guardian)

Cases:

• Thursby v. State, 223 A.2d 61 (Me. 1966), counsel's duty to raise a client's competence to stand trial

See also

• Maine Ethics Op. 84: Disclosing a Client's Incapacity
• ABA Formal Op. 04-432: Posting Bail for a Client

Source

• Landing page: https://mebaroverseers.org/attorney_services/opinion.html?id=91051

Original opinion text

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

Issued by the Professional Ethics Commission

Date Issued: September 4, 1985

Facts

Attorney A represents a client accused of a crime. Attorney A believes that his client, "although mentally competent to stand trial, suffers from a delusional belief structure which may support a defense of not guilty by reason of insanity." In fact Attorney A believes that such a defense is clearly the most desirable course of action. However, the client has not authorized the attorney to enter such a defense and in fact may forbid the attorney to do so.

Question

May an attorney enter a plea of not guilty by reason of insanity (a) without the client's consent, or (b) over the client's objection?

Opinion

Before addressing the question posed, it is important to clarify the statement of facts as presented by the inquiring attorney. In representing a possibly disabled client, an attorney must initially determine if there is a question as to whether or not the client is in fact competent to stand trial. As pointed out in Thursby v. State, 223 A.2d 61 (Me. 1966), it is the duty of counsel to raise the issue to the court. The court must then determine if indeed the client is competent to stand trial. If the latter, then it appears the attorney must bring the issue to the attention of the court.

Once the court has determined the client is competent to stand trial, it is the client who must make the ultimate decision whether or not to assert the defense of not guilty by reason of insanity. It is the attorney's duty to "apply his best judgment in the performance of his services," and he shall fully inform the client of his options so that an informed decision can be made. See Rule 3.6(a)[1] It is the attorney's task to advocate the wishes of his client. The attorney may wish to withdraw from employment under the circumstances (see Rule 3.5(c)), but he cannot ignore the client's wishes. He must not substitute his judgment for that of his client.[2]

Thus the attorney may not enter a plea of not guilty by reason of insanity without the client's consent.

Footnotes

[1] "In certain areas of legal representation not affecting the merits of the cause or substantially prejudicing the rights of a client, a lawyer is entitled to make decisions on his own. But otherwise the authority to make decisions is exclusively that of the client and, if made within the framework of the law, such decisions are binding on his lawyer. . . . A defense lawyer in a criminal case has the duty to advise his client fully on whether a particular plea to a charge appears to be desirable and as to the prospects of success on appeal, but it is for the client to decide what pleas would be entered and whether an appeal should be taken." ABA Model Code of Professional Responsibility EC 7-7.

[2] There may be occasions where the attorney may seek the appointment of a conservator or guardian under 18-A M.R.S.A. section 5-101 et seq. Once such a fiduciary is appointed, the attorney would have to respect decisions the representative is authorized to make on behalf of the protected person. However, this would not likely occur in a criminal context.