If a public defender must tell the court she doubts her client's competency, can she disclose the confidential conversations that prompted the concern?

Plain-English summary

A public defender developed a concern, based on confidential conversations with her client, that the client might not be competent to stand trial; the client refused to let her disclose those conversations to the court. Assuming (without questioning) that Washington law required her to raise the competency concern, the committee addressed whether she could disclose the underlying client communications to the court or to mental-health evaluators, and how client consent figured in.

The committee said RPC 1.6 protects those communications. Even assuming an obligation to alert the court to a competency concern, that obligation does not extend to disclosing the attorney-client conversations that form the basis of the concern; they may not be disclosed to anyone, including the court or evaluators, without the client's informed consent. The committee said neither the current "client under a disability" rule nor the proposed "client with diminished capacity" rule changes the result: each requires the lawyer to maintain, as far as reasonably possible, a normal client-lawyer relationship, and where disclosure of diminished capacity could lead to involuntary commitment and harm the client, the information stays protected by RPC 1.6 absent authorization.

The committee added that a lawyer may disclose confidences to the extent reasonably necessary to comply with a court order, but if ordered to disclose, the lawyer should first assert all nonfrivolous claims that the information is privileged or otherwise protected (and consult the client about a possible appeal); if the lawyer must ultimately comply, disclosure should be limited to what is reasonably necessary. On consent, the committee said capacity to give informed consent is fact-specific and that seeking consent is problematic when the client's competence is itself in question; often the lawyer can raise the concern without revealing the underlying communication, and in some cases it may be appropriate to seek a limited guardian ad litem or independent counsel to protect the client's interests on the consent question.

Currency note

This opinion was issued in 2005, before the Washington State Bar Association's adoption of the 2006 revisions to the Rules of Professional Conduct, and it expressly discussed both the rules then in force and the rules then proposed. 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 provision mentioned here.

In practice

Under the Washington rules as they stood (and were then being revised) at the time of the opinion, the committee treated the duty of confidentiality as controlling over a felt need to explain a competency concern to the court. It held that a lawyer raising competency must keep the underlying client conversations protected under RPC 1.6 absent informed consent, that the diminished-capacity rule does not authorize their disclosure, and that the lawyer can usually flag the concern without revealing the protected communication. Where a court orders disclosure, the committee tied the lawyer's path to RPC 1.6(b)'s court-order provision: assert nonfrivolous protections first, then if required, disclose only what is reasonably necessary.

Common questions

Q: If a lawyer must raise a client's competency, can she tell the court what the client said?

A: The committee said no, not without the client's informed consent. Even assuming a duty to raise the concern, RPC 1.6 still protects the attorney-client conversations that prompted it.

Q: Does the client-with-diminished-capacity rule allow disclosure here?

A: The committee said no. The diminished-capacity rule requires maintaining a normal client-lawyer relationship as far as possible and does not authorize disclosing confidential communications, especially where disclosure could lead to involuntary commitment.

Q: What if the court orders the lawyer to disclose?

A: The committee said the lawyer should first assert all nonfrivolous claims that the information is privileged or otherwise protected and consult the client about appeal; if ultimately required to comply, the lawyer should disclose only what is reasonably necessary.

Q: Can the lawyer just get the client's consent?

A: The committee said capacity to consent is fact-specific and that asking is problematic when the client's competence is in question; often the concern can be raised without revealing the communication, and a limited guardian ad litem or independent counsel may be appropriate.

Background and rules framework

The opinion interpreted RPC 1.6 (Model Rule 1.6, confidentiality of information), including the court-order provision, the informed-consent definition in RPC 1.0(e) (Model Rule 1.0, terminology), and the rule on clients with diminished capacity (the Washington rule then numbered 1.13 and proposed as 1.14, corresponding to Model Rule 1.14). The committee expressly declined to opine on the competency statute or the statutory attorney-client privilege, which it treated as legal questions, and framed the analysis around the limits the ethics rules place on disclosing protected communications.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.6 / Washington RPC 1.6, 1.6(a), 1.6(b) (confidentiality; disclosure to comply with a court order)
• Model Rule 1.14 / Washington RPC 1.13 (then) and proposed 1.14 (client with diminished capacity)
• Model Rule 1.0 / Washington RPC 1.0(e) (definition of informed consent)

Statutes:

• RCW Chapter 10.77, including RCW 10.77.050, 10.77.060(1)(a), and 10.77.090 (competency to stand trial; evaluation; detention)

Cases:

• In re Fleming, 142 Wn.2d 853, 16 P.3d 610 (Wash. 2001), trying an incompetent defendant; counsel's duty to raise competency
• State v. Colville, 88 Wn.2d 43, 558 P.2d 1346 (Wash. 1977), counsel may not waive competency rights
• State v. Israel, 19 Wn. App. 773, 577 P.2d 631 (Wash. Ct. App. 1978), counsel's dual role and competency opinion
• State v. Webbe, 122 Wn. App. 683, 94 P.3d 994 (Wash. Ct. App. 2004), confidentiality and a guardian ad litem on waiver

See also

• WSBA Ethics Op. 1011: Client Who Threatens Suicide
• WSBA Ethics Op. 175: Confidentiality After a Client's Death
• WSBA Ethics Op. 183: Confidentiality and a Legal-Services Funder

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=1343

Original opinion text

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

Advisory Opinion: 2099
Year Issued: 2005
RPC(s): RPC 1.0, 1.6, 1.13
Subject: Client competency; client confidentiality

FACTS

The inquirer is a public defender. Information revealed by the client during conversations in the course of the representation has given rise to a concern about the client`s competency to stand trial. The client has refused to allow the attorney to disclose the content of these conversations to the court.

The inquirer assumes that she has a legal obligation to raise her concern about competency to the court. For purposes of responding to this inquiry, we do not question this assumption. See In re Fleming, 142 Wn.2d 853, 863-67, 16 P.3d 610 (2001) (articulating the constitutional prohibition against trying an incompetent defendant and finding ineffective assistance of counsel for failure to raise a competency question with the court); State v. Colville, 88 Wn.2d 43, 47, 558 P.2d 1346 (1977) (defense counsel may not waive defendants rights under the competency statute); State v. Israel, 19 Wn. App. 773, 779, 577 P.2d 631 (1978) (acknowledging counsels dual role as representative of client and officer of the court, and holding that counsel`s opinion about competency is entitled to weight). See also RCW 10.77.050 (no defendant shall be tried as long as incapacity continues). Raising this concern will probably prompt the court to order a competency evaluation. See RCW 10.77.060 (1)(a) (when there is reason to doubt competency, the court shall appoint professionals to evaluate and report on the mental condition of the defendant).

The inquirer asks whether she can disclose client communications that form the basis for her competency concerns to the court or to mental health professionals charged with evaluating the client. She also seeks guidance regarding obtaining consent from the client to allow such disclosures to be made.

DISCUSSION

The Committee can opine on neither the application of the competency statute nor the statutory attorney-client privilege, both of which raise legal questions under Washington law. However, assuming that the lawyer is correct that Washington law required her to disclose to the court her concerns regarding the defendant’s competency, and that the basis for these concerns arose from conversations protected by the attorney-client privilege, this Committee will opine on the application of the relevant ethics rules.

Disclosure of Confidential Information

RPC 1.6 currently prohibits disclosure of client confidences and secrets, unless: 1) the client gives consent, 2) the disclosure is impliedly authorized in order to carry out the representation, or 3) the disclosure is permitted by other provisions of Rule 1.6. “Confidence” refers to “information protected by the attorney-client privilege under applicable law.” “Secret” refers to “other information gained in the professional relationship that the client has requested be held inviolate or the disclosure of which would be embarrassing or would be likely to be detrimental to the client.” RPC Terminology. Under the proposed amendment to RPC 1.6(a), protected “information relating to the representation” would include “confidences” and “secrets” as defined under the current rules. Proposed RPC 1.6(a) & cmt. [19].

Assuming without deciding the propriety of disclosing competency concerns to the court under Washington law, any such authorization does not extend to the disclosure of attorney-client conversations that form the basis of the lawyer’s concerns. These communications are protected under RPC 1.6(a). They must not be disclosed to anyone, including the court or mental health professionals, without the client’s informed consent. See State v. Webbe, 122 Wn. App. 683, 691-92, 94 P.3d 994 (2004).

Neither current RPC 1.13 (Client Under a Disability) nor proposed RPC 1.14 (Client with Diminished Capacity) leads to a different result. Under both versions of the rule, the lawyer must, “as far as reasonably possible, maintain a normal client-lawyer relationship with the client.” Raising competency concerns may result in the defendant being involuntarily detained and transported to a mental health facility for the purpose of evaluating or restoring competency. See RCW 10.77.090. In such situations, the client’s rights, including the lawyer’s ethical obligation to maintain confidentiality of information under RPC 1.6, must be zealously protected. See Proposed RPC 1.14, cmt. [8] (where disclosure of a client’s diminished capacity could lead to involuntary commitment proceedings, thereby adversely affecting the client’s interest, information relating to the representation is protected by RPC 1.6 and may not be disclosed by the lawyer unless authorized to do so). Thus, even if Washington law authorizes or requires the lawyer to disclose to the court competency concerns, the diminished capacity rule does not authorize the lawyer to disclose the content of confidential communications relating to the lawyer’s competency concerns absent the client’s informed consent.

Finally, the lawyer is permitted to disclose confidences and secrets to the extent the lawyer reasonably believes necessary in order to comply with a court order. RPC 1.6(b)(2); Proposed RPC 1.6(b)(6). If the court orders the lawyer to disclose confidences relating to the competency issue, the lawyer “should assert on behalf of the client all nonfrivolous claims that the information sought is protected against disclosure by the attorney-client privilege or other applicable law.” Proposed RPC 1.6, cmt. [13] (also requiring the lawyer to consult with the client about the possibility of appeal to the extent required by RPC 1.4 in the event of an adverse ruling). Under the circumstances presented here, this would include bringing to the court’s attention its obligations under relevant constitutional and statutory law, including any requirement under RCW Chapter 10.77 to order an evaluation of competency based on the concerns raised by the lawyer. If, notwithstanding these assertions, the court orders the lawyer to reveal information relating to the representation, and no appeal is sought after consultation with the client, the lawyer may comply, being careful to limit disclosure to confidences that the lawyer reasonably believes necessary to comply with the order.

Consent

Under the facts presented, the client has refused to authorize disclosure. However, the Inquirer seeks guidance regarding obtaining the client’s consent to disclose confidential information in this situation. Under the proposed amendment to RPC 1.6, client consent permitting disclosure of information relating to the client’s representation must be “informed,” denoting “the agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct.” RPC 1.6(a),1.0(e).

Whether a client has the capacity to give informed consent depends on the particular facts, but the Committee believes that asking for consent is problematic if competence of the person giving it is an issue. In most situations, counsel will be able to disclose a concern to the court without revealing the confidential communication that led to the concern. In other situations, it may be appropriate for the lawyer to seek appointment of a limited guardian ad litem or independent consent counsel in order to protect and assert the client’s interests on the consent issue. See Webbe, 122 Wn. App. at 689 n.12, 693 n.20 (approving of the trial court’s appointment of a guardian ad litem/independent counsel for purposes of evaluating the client’s possible waiver of the attorney-client privilege).