What must appointed counsel do when a death-sentenced client with a history of mental illness moves to drop his post-conviction petition and be executed?

Plain-English summary

The inquiry concerned a court-appointed attorney for a death-sentenced client who, despite a history of treatment for mental illness, filed a pro se motion seeking to dismiss his post-conviction petition, waive all his rights, and have the execution date reinstated. The opinion addressed three duties in turn.

On the duty to the court and the public, the opinion concluded that defense counsel has an independent professional responsibility to the court and the fair administration of justice and, citing the ABA Standards for Criminal Justice, must move for an independent evaluation whenever a good-faith doubt arises about the defendant's competence, regardless of counsel's view of the client's legal best interest. Because the trial of an incompetent defendant violates due process, counsel must advise the trial court of the defendant's possible incompetence, and appointed counsel here was obligated to inform the court of any good-faith belief that the client might be incompetent.

On the duty to the client's best interest, the opinion acknowledged the general rule that, absent the client's consent, an attorney has no authority to maintain an appeal, but explained that a client's history of mental illness and an issue of competence impose an additional duty. Quoting EC 7-12, it stated that any condition rendering a client incapable of a considered judgment casts added responsibility on the lawyer, who must act with care to safeguard the client's interests. Because a death-sentenced person's waiver may result in execution, counsel must ensure the waiver is knowing, voluntary, and competent (citing Groseclose ex rel. Harris v. Dutton), and must investigate all potential post-conviction claims irrespective of the client's desires.

On the duty to the client, the opinion concluded that counsel must investigate whether the decision to waive post-conviction relief and be executed is voluntary, examining the totality of the circumstances, and must seek a mental-health evaluation to determine competence. Where the client's competence is questionable, counsel may act to preserve the client's rights even without consent (EC 7-12; State v. Aumann). Applying the competency standard from Thompson v. Wainwright, the opinion advised that counsel conduct an independent investigation to determine whether the client's decision to forgo post-conviction remedies and reinstate the execution date was knowing, voluntary, intelligent, and competent.

Currency note

This opinion was issued in 1992, before Tennessee's adoption of the 2003 Rules of Professional Conduct, which replaced the former Code of Professional Responsibility (including EC 7-12 and DR 7-101(A)) on which it relied, and before the ABA's 2002 Ethics 2000 revisions. The modern analogs are RPC 1.14 (client with diminished capacity), RPC 1.2 (allocation of authority between client and lawyer), and RPC 1.3 (diligence). Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance, and verify against the current rules before relying on any specific requirement mentioned here.

Common questions

Q: Could appointed counsel simply follow a death-sentenced client's pro se decision to drop his appeals and be executed?

A: Per the opinion, not without investigation. Because the waiver could result in execution, counsel had to ensure it was knowing, voluntary, and competent, investigate all potential post-conviction claims regardless of the client's wishes, and seek a mental-health evaluation.

Q: Did counsel have to tell the court about doubts as to the client's competence?

A: Yes. The opinion concluded that counsel's responsibility to the court and the fair administration of justice required moving for an independent evaluation and advising the court of any good-faith belief that the client might be incompetent.

Q: Could counsel act against the client's stated wishes?

A: Per the opinion, where competence was in question, EC 7-12 permitted counsel to act to preserve the client's rights even without the client's consent, while otherwise looking to the client for decisions the client could make.

Background and rules framework

The opinion interpreted EC 7-12 (a client whose condition impairs considered judgment casts additional responsibility on the lawyer) and DR 7-101(A) (zealous representation), informed by the ABA Standards for Criminal Justice and federal competency case law. The modern analogs are Model Rule 1.14 / Tennessee RPC 1.14 (client with diminished capacity, including protective action), Model Rule 1.2 / Tennessee RPC 1.2 (allocation of decision-making authority), and Model Rule 1.3 / Tennessee RPC 1.3 (diligence).

Citations and references

Rules of Professional Conduct (former Code):

• EC 7-12 (client whose condition impairs considered judgment). Modern analog: Model Rule 1.14 / Tennessee RPC 1.14
• DR 7-101(A) (zealous representation). Modern analog: Model Rule 1.3 / Tennessee RPC 1.3

Cases:

• Groseclose ex rel. Harris v. Dutton, 594 F. Supp. 949 (M.D. Tenn. 1984), validity of a death-sentenced person's waiver of post-conviction process
• State v. Aumann, 265 N.W.2d 316 (Iowa 1978), lawyer may act to preserve the rights of a client whose competence is in question
• Thompson v. Wainwright, 787 F.2d 1477 (11th Cir. 1986), test for competency

Other authorities:

• ABA Standards for Criminal Justice 7-4.2 (2d ed. 1980, 1986 Supp.) and Standard 4-8.5 (duty to investigate post-conviction claims)

See also

• Tenn. Ethics Op. 96-F-140: Appointed Counsel for a Minor (Diminished-Capacity Duties)
• ABA Formal Op. 96-404: Client Under a Disability
• CBA Formal Op. 126: Representing a Client With Diminished Capacity

Source

• Landing page: https://www.tbpr.org/ethic_opinions/92-f-129

Original opinion text

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

92-F-129 - Criminal Defendant Waiver of Rights in Appointed Case

BOARD OF PROFESSIONAL RESPONSIBILITY OF THE SUPREME COURT OF TENNESSEE

FORMAL ETHICS OPINION 92-F-129

Inquiry is made as to the ethical obligation of a court appointed attorney for a death sentenced person in a proceeding for post conviction relief, where the client with a history of being treated for mental illness has filed a pro se motion seeking to dismiss his petition, waive all his rights and to reinstate the execution date.

The inquiry raises a three prong inquiry (1) What is the obligation of the attorney to the court and public (2) What is an attorney's duty to his perception of his death sentenced client's best interest and (3) What is the attorney's duty to his death sentenced client when the client, who has a history of being treated for mental illness, evinces an intent to terminate his past conviction and be executed.

(1) What is the attorney's duty to the court and public? Defense counsel has an independent professional responsibility toward the court and the fair administration of justice, as well as allegiance to his client and should move for an independent evaluation whenever a good faith doubt arises as to defendant's competence to stand trial, notwithstanding defense counsel's doubts as to what is in the defendant's legal best interest. ABA Standards for Criminal Justice 7- 4.2 (2nd 1980 E 1986 Supp.). Because the trial of an incompetent defendant is necessarily invalid as a violation of due process, a defense lawyer's duty to maintain the integrity of judicial proceedings requires that the trial court be advised of the defendant's possible incompetence. The appointed counsel in the inquiry is obligated to inform the court of any good faith belief that the death sentenced client may be incompetent.

(2) What is the attorney's duty to his perception of his death sentenced client's best interest? The general rule is that in absence of the consent of his client, an attorney has no authority to institute or maintain an appeal from a judgment against the client. However, where as in this case the client has a history of being treated for mental illness and there is an issue of competence the lawyer has an additional duty. EC 7-12 states:

Any mental or physical condition of a client that renders him incapable of making a considered judgment on his own behalf casts additional responsibilities upon his lawyer. Where an incompetent is acting through a guardian or other legal representative, a lawyer must look to such representative for those decisions which are normally the prerogative of the client to make. If a client under disability has no legal representative, his lawyer may be compelled in court proceedings to make decisions on behalf of the client. If the client is capable of understanding the matter in question or of contributing to the advancement of his interests, regardless of whether he is legally disqualified from performing certain acts, the lawyer should obtain from him all possible aid. If the disability of a client and the lack of a legal representative compel the lawyer to make decisions for his client, the lawyer should consider all circumstances then prevailing and act with care to safeguard and advance the interests of his client. But obviously a lawyer cannot perform any act or make any decision which the law requires his client to perform or make, either acting for himself if competent, or by a duly constituted representative if legally incompetent.

Because a death sentenced person's waiver of rights invoking the post conviction process may result in execution, the attorney must ensure that that decision is a knowing and competent one. A waiver of post conviction relief must be knowing, voluntary and competent. Groseclose ex rel Harris v. Dutton 594 F.Supp. 949, 952-53 (M.D. Tenn. 1984). An attorney appointed in a death sentenced case has a duty to investigate all potential claims available for post conviction relief irrespective of a client's desires. ABA Criminal Justice Standard 4-8.5. Thus the inquiring attorney has an obligation to investigate the mental competence issue.

(3) What is the attorney's duty to his death sentenced client? The appointed counsel owes a duty to his death sentenced client to investigate whether the client's decision to waive post conviction is voluntary. A death sentenced person's knowing decision to waive the post conviction process and be executed can be invalid if it is not voluntary. Groseclose ex rel Harris 594 F.Supp. at 956-62. Counsel should look at the totality of the circumstances surrounding the decision, id. at 957. If the decision is knowing and voluntary an inquiry should be made whether the client is competent. Counsel should seek a mental health evaluation of the client to determine competency.

Any mental or physical condition of a client that renders him incapable of making a considered judgment on his own casts additional responsibility on his lawyer EC 7-12. Generally the attorney does not have authority to act without his client's consent. However, where the client's competence is questionable the attorney may act to preserve the client's rights. State v. Aumann, 265 N.W.2d 316, 318, EC 7-12.

The test for competency to stand trial is whether the defendant has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding and whether he has a rational as well as functional understanding of the proceedings against him. Thompson v. Wainswright, 787 F.2d 1477.

The inquiring attorney should conduct an independent investigation to determine if the client's decision to forego post conviction remedies and reinstate the execution date is knowing, voluntary, intelligent and competent.

This 11th day of June, 1992.

ETHICS COMMITTEE:

Harris A. Gilbert

Donna Simpson Massa

Barbara J. Moss

APPROVED AND ADOPTED BY THE BOARD