Must a criminal defense lawyer who doubts the client's competence seek a competency evaluation before letting the client plead guilty?

Plain-English summary

Opinion 17-05 addressed a criminal defense lawyer who doubts the client's competence, particularly when the client wants to accept a plea offer with little or no jail time and seeking a competency evaluation could itself lead to confinement exceeding any likely sentence. The Committee concluded that defense counsel has no automatic obligation to seek a competency evaluation. The lawyer is obligated only when unable to otherwise proceed in a way that protects the client's interests and autonomy.

The Committee applied Rules 1.1 (competence), 1.2 (allocation of authority, including the client's decision on a plea), and 1.14 (client with diminished capacity). Under Rule 1.2, the client decides what plea to enter, but Comment 4 directs the lawyer to Rule 1.14 when the client appears to have diminished capacity. Rule 1.14 requires the lawyer to maintain, as far as reasonably possible, a normal client-lawyer relationship, recognizing that a client with diminished capacity often can still understand and reach conclusions about matters affecting the client's own well-being. So the first step is not a mental-health evaluation but an attempt to carry on the normal relationship.

When the lawyer reasonably believes the client has diminished capacity, faces a risk of substantial harm, and cannot adequately act in his own interest, Rule 1.14(b) permits limited protective action, such as consulting family, caretakers, therapists, or support and protective services, with Rule 1.6(a) impliedly authorizing only the disclosure reasonably necessary to protect the client. If that limited action is ineffective, the lawyer should seek guidance from an appropriate diagnostician, and the Committee said it is preferable to obtain a confidential evaluation protected by attorney-client privilege rather than a court-ordered one, because publicly raising diminished capacity can trigger confinement and even civil commitment and otherwise harm the client. The Committee also considered Rules 3.3 (candor) and 4.1 (truthfulness) and found neither imposes an affirmative duty to raise the client's competence with the court, though counsel must remain candid if asked. Counsel may, and sometimes should, raise competence with the court, and failing to do so can in some cases be ineffective assistance, but the opinion concludes that raising competence with the court should rarely be the first approach and should come only after other approaches fail and the lawyer cannot otherwise protect both the client's interests and autonomy.

In practice

The opinion holds that, under Rule 1.14, a Utah criminal defense lawyer who doubts a client's competence should first attempt a normal client-lawyer relationship rather than immediately moving for a competency evaluation. Per the opinion, the lawyer may take limited protective action (consulting family or professionals, disclosing only what Rule 1.6 reasonably permits) when the client faces substantial harm and cannot act in his own interest, and should generally seek a confidential, privileged evaluation before a court-ordered one. The lawyer has no affirmative duty under Rules 3.3 or 4.1 to raise competence with the court, but must stay candid if questioned, and should raise competence with the court only when other approaches have failed.

Common questions

Q: If I doubt my criminal client's competence, must I ask the court for a competency evaluation before a plea?

A: No, not automatically. The opinion concludes counsel has no obligation to seek an evaluation unless counsel otherwise cannot proceed in a way that protects the client's interests and autonomy, and should first try to maintain a normal client-lawyer relationship under Rule 1.14.

Q: When can I take protective action, and what can I disclose?

A: Under Rule 1.14(b), when the lawyer reasonably believes the client has diminished capacity, faces substantial harm, and cannot adequately act in his own interest, the lawyer may take reasonably necessary protective action; Rule 1.6(a) impliedly authorizes disclosing only what is reasonably necessary to protect the client.

Q: Should I get a court-ordered evaluation or a private one?

A: The opinion states it is preferable to obtain a confidential psychological evaluation protected by the attorney-client privilege before seeking a court-ordered competency evaluation, because publicly raising the issue can lead to confinement, restoration treatment, and even civil commitment.

Q: Do candor rules force me to tell the court my client may be incompetent?

A: No. The opinion concludes neither Rule 3.3 nor Rule 4.1 imposes an affirmative duty to raise the client's competence with the court, though counsel must be candid and truthful if the court or prosecutor asks, and may object or decline to answer where appropriate.

Background and rules framework

The opinion interprets Utah Rules of Professional Conduct 1.1 (competence), 1.2 (scope of representation and allocation of authority, including the client's plea decision), 1.14 (client with diminished capacity), and 1.6 (confidentiality, including implied authorization for protective disclosure), and considers Rules 3.3 (candor toward the tribunal) and 4.1 (truthfulness to others). These correspond to their ABA Model Rule counterparts. The Committee also drew on the ABA Criminal Justice Standards for Mental Health, which provide that defense counsel may, but is not required to, move for a competency evaluation when counsel has a good-faith doubt.

Citations and references

Rules of Professional Conduct:

• MR 1.14 / Utah RPC 1.14 (client with diminished capacity; protective action)
• MR 1.2 / Utah RPC 1.2 (allocation of authority; plea decision)
• MR 1.1 / Utah RPC 1.1 (competence)
• MR 1.6 / Utah RPC 1.6(a) (confidentiality; protective disclosure)
• MR 3.3, MR 4.1 / Utah RPC 3.3, 4.1 (candor; truthfulness)

Other authorities:

• ABA Standards for Criminal Justice (Mental Health), on competency to plead and counsel's discretion

See also

• ABA Formal Op. 96-404: Client Under a Disability
• ABA Formal Op. 07-448: Appointed Counsel, Refused Client
• AL Ethics Op. 1995-03: Guardian for a Disabled Client

Source

• Landing page: https://www.utahbar.org/ethics-opinions/17-05/

Original opinion text

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

ISSUE

1. Is it ethical for a criminal defense attorney who suspects his client is not competent to allow that client to enter a guilty plea without first filing for a competency evaluation? What are the defense attorney's ethical obligations toward a client of questionable competence?

ANSWER

2. The criminal defense attorney who questions her client's competence is not obligated to seek a competency evaluation unless she is otherwise unable to proceed in a way that protects her client's interests and autonomy. An attorney who questions the client's competence should first try to carry out a normal client-attorney relationship. When there is risk of substantial harm and the client cannot act in his own interest, the attorney is permitted to take protective action, such as involving family and professionals serving the client to assist. If the attorney needs guidance from a mental health expert, the attorney should generally seek a confidential psychological evaluation protected by attorney-client privilege before asking for a competency evaluation.

BACKGROUND FACTS

3. Sometimes a defendant is charged with a serious crime. When the attorney suspects that such a defendant may not be competent, the attorney may request a competency evaluation. This may entail confinement. If the defendant is found not competent to stand trial, the defendant must be committed for treatment intended to restore his competency. This may be for an extended period of time. At some point the court may decide that the defendant's competency will never be restored and dismiss the case in furtherance of justice. At that point, the defendant could be civilly committed if the defendant were a danger to himself or others.

4. In many other cases a defendant is charged with a misdemeanor or infraction and the defendant's attorney believes that the defendant may not be competent. In such a case, the defense attorney could ask for a competency evaluation. However, if the defendant is in custody, further confinement for that evaluation may well exceed the sentence the defendant is likely to receive. If such a defendant is found incompetent, further confinement at a mental hospital to achieve competence may result in confinement that vastly exceeds the sentence that could be imposed for the misdemeanor. If the prosecutor makes a plea offer with little or no jail time, is it proper for defense counsel to urge the client with questionable competence to accept the offer and plead guilty?

ANALYSIS

5. The Utah Rules of Professional Conduct that address these questions are Rule 1.1 Competence, Rule 1.2 Scope of Representation and Allocation of Authority Between Client and Lawyer, and Rule 1.14 Client with Diminished Capacity.

6. All clients are entitled to competent representation. "Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation." Competent representation of a criminal defendant includes the ability to recognize and duty to investigate mental health issues.

7. A mentally impaired individual may have been "unable to form the requisite intent to commit the crime" at the time of the alleged offense. This could provide a defense that counsel should pursue. Such a defendant might have diminished capacity that would justify mitigation in sentencing. Alternatively, a mentally ill individual may have an insanity defense to the charge(s). This opinion only addresses whether the client's current competency should be questioned or raised by defense counsel. There are substantial legal differences between competency for trial and a defendant's mental state at the time of the alleged offense and whether there is a basis for an insanity defense.

8. Rule 1.2 establishes the division of authority between attorney and client. With respect to criminal defendants, it states: In a criminal case, the lawyer shall abide by the client's decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial and whether the client will testify.

9. Comment 4 to this rule addresses how the attorney should proceed when he questions the client's competence: In a case in which the client appears to be suffering diminished capacity, the lawyer's duty to abide by the client's decisions is to be guided by reference to Rule 1.14.

10. Rule 1.14 provides a number of important points regarding representing the questionably competent client. First, it establishes that "when a client's capacity to make adequately considered decisions in connection with the representation is diminished, . . . the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client." The comments expand upon this point: [M]aintaining the ordinary client-attorney relationship may not be possible in all respects. . . . Nevertheless, a client with diminished capacity often has the ability to understand, deliberate upon, and reach conclusions about matters affecting the client's own well-being.

11. Under this rule, when an attorney suspects the client may have a mental illness or cognitive disability, the first step should not be to seek a mental health evaluation, including for competency, but to attempt to carry out the normal client-attorney relationship. The client may be able to express strong preferences, such as to stay out of jail, or to enter a treatment program, for example.

12. The second point to take away from Rule 1.14 is that the lawyer may take protective action in certain circumstances: When the lawyer reasonably believes that the client has diminished capacity, is at risk of substantial physical, financial or other harm unless action is taken and cannot adequately act in the client's own interest, the lawyer may take reasonably necessary protective action, including consulting with individuals or entities that have the ability to take action to protect the client . . . . When taking protective action pursuant to paragraph (b), the lawyer is impliedly authorized under Rule 1.6(a) to reveal information about the client, but only to the extent reasonably necessary to protect the client's interest.

13. The comments expand upon the relationship between the values of client autonomy and the need to protect the client: If a lawyer reasonably believes that a client is at risk of substantial physical, financial or other harm unless protective action is taken, and that a normal client-lawyer relationship cannot be maintained as provided in paragraph (a) because the client lacks sufficient capacity to communicate or to make adequately considered decisions in connection with the representation, then paragraph (b) permits the lawyer to take protective measures deemed necessary. Such measures could include: consulting with family members, using a reconsideration period to permit clarification or improvement of circumstances, . . . consulting with support groups, professional services, adult-protective services or other individuals or entities that have the ability to protect the client. In taking any protective action, the lawyer should be guided by such factors as the wishes and values of the client to the extent known, the client's best interests and the goals of intruding into the client's decisionmaking autonomy to the least extent feasible, maximizing client capacities and respecting the client's family and social connections.

14. An attorney may reasonably conclude that, while relatively capable of functioning in matters of day-to-day life, a criminal defendant client is insufficiently competent to make informed decisions required in the usual allocation of authority between lawyer and client contemplated by Rule 1.2(a), Utah R. Prof. Conduct. In such circumstances the attorney would be justified in taking limited protective action. The attorney might involve the client's family, caretaker, or therapist in consulting with the client to try to arrive at a decision that is in the client's best interests and acceptable to the client. The attorney and such consultants might work with the client to develop a plan that will allow the client to achieve his goals of avoiding confinement and to comply with the terms of probation.

15. If this limited protective action is ineffective, the next step would be for the attorney to "seek guidance from an appropriate diagnostician." It is preferable for counsel to obtain a confidential psychological evaluation protected by the attorney-client privilege instead of getting an evaluation ordered by the court. As the advisory ABA Standards for Criminal Justice suggest: If defense counsel has a good faith doubt regarding the client's competence to make important decisions, counsel should consider seeking an expert evaluation from a mental health professional, within the protection of confidentiality and privilege rules if applicable.

16. The Comments to Rule 1.14 highlight the possible negative effect of the attorney publically raising an issue of diminished capacity or incompetence: Disclosure of the client's diminished capacity could adversely affect the client's interests. For example, . . . proceedings for involuntary commitment. . . . At the very least, the lawyer should determine whether it is likely that the person or entity consulted with will act adversely to the client's interests before discussing matters related to the client.

17. Raising questions of competence with the court could result in confinement while competence is determined and to restore competence, and further confinement, under civil commitment proceedings, if there is a risk to bodily injury to another or serious damage to the property of another.

18. The ABA Criminal Justice Standards regarding mental health provide that the court and the prosecutor "should" move for an evaluation of the defendant's incompetence whenever they have a "good faith doubt," but the defense counsel has no such affirmative obligation: Defense counsel may seek an ex parte evaluation or move for evaluation of the defendant's competence to proceed whenever counsel has a good faith doubt about the defendant's competence even if the motion is over the defendant's objection.

19. The ABA Standards suggest the test for competency to plead should be: whether the defendant has sufficient present ability to consult with defendant's lawyer with a reasonable degree of rational understanding and whether, given the nature and complexity of the charges and the potential consequences of a conviction, the defendant has a rational as well as factual understanding of the proceedings relating to entry of a plea of guilty or nolo contendere.

20. Some commentators argue that defense counsel has a responsibility to seek appropriate treatment for a mentally impaired client, due to his fiduciary obligations and respect for client autonomy, however, this need not be done through challenging competency.

21. In opining that a defense attorney does not have an affirmative obligation to raise the question of competency, we have also considered Rule 3.3 Candor Toward the Tribunal and Rule 4.1 Truthfulness in Statements to Others. Neither of these rules establish an affirmative duty for a defense attorney to raise questions about his client's competence with the Court. While Rule 3.3 prohibits knowingly making a "false statement of fact or law to a tribunal," it places no obligation on the attorney to divulge confidential information about the client which falls under the protection of Rule 1.6. If the court were to pose questions during the plea colloquy, the answers to which defense counsel believed would make it unlikely that the court would accept the plea, counsel must be candid and truthful, but would be entitled to object or decline to respond to any question. Likewise, Rule 4.1 prohibits knowingly making a "false statement of fact or law to a third person" and counsel could respond to any similar inquiry from the prosecutor, but must be candid about any affirmative representation made with respect to the client. Of course, as a practical matter, it may be the most realistic and wise course of action for defense counsel to inform the prosecution and/or the court in advance that, due to the client's somewhat impaired condition and state of mind, certain accommodations to the typical process of pleading guilty may be needed in light of the client's diminished capacity and that is the best course of action for all concerned. Most courts and prosecutors will likely be sympathetic to that approach.

22. In some cases the lawyer may and should raise the issue of competence. "When a lawyer has reason to believe that her client may not be mentally competent to stand trial, she does not render ineffective assistance of counsel by making her concerns known to the court" even where the client objects. In some cases a lawyer's failure to request a competency hearing may constitute ineffective assistance of counsel and be grounds to overturn the conviction.

23. However, raising competence with the Court should rarely be the first approach a defense attorney takes to address a client's questionable competence. Rather, the attorney should raise the issue of the client's competence with the court only after attempting other approaches and when the attorney is unable to effectively proceed in any other way to protect both her client's interests and autonomy.