How does a Wisconsin criminal defense lawyer handle a client whose competency to stand trial is in doubt?

Plain-English summary

Opinion EF-25-03 (November 24, 2025) addresses how a criminal defense lawyer's ethical duties interact with constitutional and statutory competency law when a client's ability to participate in the defense is in doubt. The committee's starting point is that SCR 20:1.14, the diminished-capacity rule, provides only broad guidance and must yield to the controlling constitutional and state-law requirements in criminal cases. It identifies three ways those requirements differ from SCR 20:1.14: counsel must notify the court when there is "reason to believe" the client is not competent (the rule, by contrast, is discretionary); this duty applies even when the client objects, partially overriding the client's control over objectives under SCR 20:1.2(a); and counsel may not reveal why competency is being raised, because both the client communications and the lawyer's impressions are confidential and privileged under State v. Meeks.

The committee stresses that the duty to notify does not displace the lawyer's other obligations. The lawyer should begin every representation assuming the normal allocation of authority and exhaust efforts to maintain a functional relationship, with the client's informed consent involving family or experts where helpful, before raising competency. Questionable or imprudent decisions do not equal incompetence; clients are entitled to make bad decisions, and the lawyer must advocate the client's chosen objectives. The constitutional standard is the Dusky test (a rational and factual understanding of the proceedings and the ability to consult with counsel), codified at Wis. Stat. section 971.13 and applied the same way across decisions such as pleading guilty, waiving counsel, or testifying. Representing such a client competently under SCR 20:1.1 requires command of the substantive and procedural competency law and a working understanding of relevant mental disorders.

On strategy disagreements, the committee explains that notice under State v. Johnson is mandatory and not waivable, but it is not an assertion that the client is incompetent; if the client opposes a finding of incompetency the lawyer must advocate that position, put the State to its proof, and incurs no conflict by doing so. If a client demands the lawyer argue incompetency with no supporting evidence, the lawyer risks a frivolous-claim violation and may seek to withdraw. On confidentiality, the committee reads Meeks (and the unpublished Ford decision) to bar the lawyer from voluntarily disclosing impressions of the client's competence, and advises objecting and citing Meeks if a court tries to compel that information; the most prudent course is not to speak with family or experts absent the client's informed consent.

In practice

Under this opinion, conduct matching its fact pattern, a Wisconsin criminal defense lawyer who comes to doubt a client's competency to stand trial, is governed first by constitutional and statutory law rather than by SCR 20:1.14. The committee holds that the lawyer must inform the court when there is reason to doubt competency, even over the client's objection, but must limit the notice to stating that reason exists and decline to elaborate, citing State v. Meeks if pressed. It holds that the lawyer must continue to consult with and advocate for the client on the client's stated objectives, including contesting incompetency if the client so directs, and must meet heightened duties of competence under SCR 20:1.1 and confidentiality under SCR 20:1.6.

Common questions

Q: Must a Wisconsin criminal defense lawyer tell the court if they doubt the client's competency?

A: Yes. The committee concludes that, under State v. Johnson, counsel must notify the court when there is reason to doubt the client's competence, and this duty applies even if the client objects and cannot be waived.

Q: Can the lawyer explain to the court why competency is being raised?

A: No. The committee concludes the client communications and the lawyer's impressions of competence are confidential and privileged under State v. Meeks, so the notice should state only that reason exists to doubt competency, and the lawyer must decline to elaborate if asked.

Q: Does raising competency mean the lawyer is arguing the client is incompetent?

A: No. The committee concludes notice satisfies the lawyer's duty as an officer of the court but is not advocacy that the client is incompetent; if the client opposes an incompetency finding, the lawyer must advocate that position without a conflict.

Q: What is the competency standard?

A: The Dusky test. The committee explains the constitutional standard, codified at Wis. Stat. section 971.13, asks whether the defendant has a rational and factual understanding of the proceedings and a present ability to consult with counsel.

Q: Can the lawyer discuss the client with family or an expert to help?

A: Cautiously and usually only with consent. The committee concludes that, given Meeks and the unpublished Ford decision, the most prudent course is not to speak with others about the client's competence absent the client's informed consent.

Background and rules framework

The opinion interprets SCR 20:1.14 (Client with Diminished Capacity), Wisconsin's version of Model Rule 1.14, but explains that in criminal cases it is "largely supplanted" by constitutional doctrine and Wisconsin statutes and case law, which control where they conflict with the rule. The committee anchors the duties that remain in SCR 20:1.1 (competence), SCR 20:1.4 (communication), SCR 20:1.6 (confidentiality), SCR 20:1.2(a) (allocation of authority between lawyer and client), and SCR 20:1.16 (withdrawal). The competency framework comes from the Dusky line of U.S. Supreme Court cases and Wisconsin's codification and procedures at Wis. Stat. section 971.13 and 971.14.

Citations and references

Rules of Professional Conduct:

• Wis. SCR 20:1.14 / Model Rule 1.14 (client with diminished capacity)
• Wis. SCR 20:1.1 / Model Rule 1.1 (competence)
• Wis. SCR 20:1.4 / Model Rule 1.4 (communication)
• Wis. SCR 20:1.6 / Model Rule 1.6 (confidentiality)
• Wis. SCR 20:1.2(a) / Model Rule 1.2 (allocation of authority)

Statutes:

• Wis. Stat. § 971.13 (codifying the Dusky competency standard)
• Wis. Stat. § 971.14 (procedures for determining competency to stand trial)

Cases:

• Dusky v. United States, 362 U.S. 402 (1960), competency-to-stand-trial standard
• State v. Johnson, 133 Wis. 2d 207, 395 N.W.2d 176 (1986), duty to notify the court of doubts about competency
• State v. Meeks, 2003 WI 104, 263 Wis. 2d 794, 666 N.W.2d 859 (2003), client communications and the lawyer's competency impressions are privileged
• Godinez v. Moran, 509 U.S. 389 (1993), single competency standard across decisions

Other opinions cited:

• ABA Formal Ethics Op. 96-404 (1996): client under a disability
• Kentucky Ethics Op. E-440 (2016); Utah Ethics Op. 17-03 (2017): pursue less restrictive options before raising competency

See also

• ABA Formal Op. 96-404: Client Under a Disability
• ABA Formal Op. 07-448: Appointed Counsel and a Person Who Declines Representation
• Alabama Ethics Op. 1995-03: Seeking a Guardian or Other Protective Action

Source

• Landing page: https://www.wisbar.org/formembers/ethics/pages/formal-opinions.aspx
• Original PDF: https://www.wisbar.org/formembers/ethics/Ethics%20Opinions/EF-25-03%20Comptency%20FINAL.pdf