When defense counsel must raise a criminal defendant's competency with the court, how much client information can the lawyer disclose under RPC 1.14 and 1.6?

Plain-English summary

A public defender asked how counsel's duties under RPC 1.2, 1.6, and 1.14 apply when a criminal client appears legally incompetent to participate in proceedings. The lawyer asked, among other things, whether harm to a client's constitutionally protected interest in competency is "other harm" under RPC 1.14(b), whether RPC 1.14(c) then permits disclosing information gained during the representation, whether counsel may disclose the client's statements or observed behaviors, whether to seek a guardian ad litem first, and whether courts, prosecutors, and state-employed psychologists are proper recipients.

The committee responded that whether a lawyer has a legal obligation to raise competency is a legal question it could not decide, but, consistent with Informal Opinion 2099 and authorities like In re Fleming, it assumed such an obligation exists and concluded that where it does, the lawyer is ethically obligated to raise the concern with the court (RPC 8.4(d), 3.4(c)). A disclosure of competency reveals "information relating to the representation" under RPC 1.6 and qualifies as a "secret," so the lawyer should limit disclosure to what is necessary, frequently just informing the court that a competency issue exists, and should not reveal privileged communications or other secrets, including non-verbal gestures and observations, refusing under RPC 1.6(a) even if the court asks why. Because a lawyer must obey court orders, the lawyer must explain the basis if so ordered, and should seek to mitigate by asking that disclosure be made under seal or in chambers. Because the lawyer can disclose so little, the committee found it unnecessary to decide whether constitutional harm counts as "other harm" under RPC 1.14, though it observed the rule's broad language would make that reading not unreasonable. The committee also noted the lawyer must discuss competency with the client and weigh the client's wishes (RPC 1.2(a), 1.4), may consider a client's desire not to raise competency as one factor (potentially indicating competence), and may seek an early mental-health evaluation and maintain as normal a relationship as possible under RPC 1.14, including consulting family or medical providers.

In practice

Under the Washington rules as they stood at the time of the opinion, the committee resolved the question on RPC 1.6 grounds rather than on the scope of RPC 1.14's protective-action provisions. The opinion holds that an obligation to raise competency, which the committee assumed rather than decided, makes raising it ethically required, but that the disclosure is tightly cabined: typically the lawyer states only that a competency issue exists and withholds privileged communications and observed behaviors, declining even to explain the basis to the court absent an order. If ordered to explain, the lawyer complies while seeking to minimize exposure through sealing or in-camera treatment. The committee framed the decision whether competency "must" be raised as outside its ethics remit, while noting the lawyer's duties to consult the client under RPC 1.2 and 1.4 and to maintain a normal relationship and consider protective measures under RPC 1.14.

Common questions

Q: If I think my criminal client may be incompetent, must I tell the court?

A: The committee assumed (without deciding the legal question) that counsel has such an obligation, and held that where it exists, the lawyer is ethically obligated to raise the concern with the court under RPC 8.4(d) and 3.4(c).

Q: How much can I disclose when raising competency?

A: Only what is necessary. The committee said competency is "information relating to the representation" under RPC 1.6, so the lawyer should often disclose merely that a competency issue exists, withholding privileged communications and observed behaviors, and should decline to explain the basis under RPC 1.6(a) unless ordered.

Q: What if the court orders me to explain how I formed my opinion?

A: The lawyer must obey the order, but should try to mitigate the disclosure by asking that it be made under seal or in chambers.

Q: Can I take my client's wish not to raise competency into account?

A: Yes. The committee said the lawyer must consult the client under RPC 1.2(a) and 1.4, and may treat the client's articulated wish not to raise competency as one factor, possibly indicating the client is competent enough to stand trial, alongside history of mental illness and familiarity with the system.

Background and rules framework

The opinion interpreted Washington RPC 1.14 (Model Rule 1.14, clients with diminished capacity, including protective action under 1.14(b)-(c)), RPC 1.6 (Model Rule 1.6, confidentiality; competency as a protected "secret"), RPC 1.2(a) and RPC 1.4 (Model Rules 1.2 and 1.4, the client's role and required consultation), and RPC 8.4(d) and 3.4(c) (Model Rules 8.4 and 3.4, the duties to the tribunal). It read these against the competency statute, RCW 10.77, and case law including In re Fleming.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.14 / Washington RPC 1.14 (clients with diminished capacity; protective action)
• Model Rule 1.6 / Washington RPC 1.6, 1.6(a) (confidentiality; "secrets")
• Model Rule 1.2 / Washington RPC 1.2(a) (client's decision on plea and objectives)
• Model Rule 1.4 / Washington RPC 1.4(a)(2), 1.4(a)(5), 1.4(b) (consultation and explanation)
• Model Rule 8.4 / Washington RPC 8.4(d) (conduct prejudicial to the administration of justice)
• Model Rule 3.4 / Washington RPC 3.4(c) (obeying a tribunal's rules)

Statutes:

• RCW 10.77, including RCW 10.77.050 (competency to stand trial)

Cases:

• In re Fleming, 142 Wn.2d 853, 16 P.3d 610 (Wash. 2001), constitutional bar on 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 a defendant's competency rights
• State v. Israel, 19 Wn. App. 773, 577 P.2d 631 (1978), counsel's dual role and the weight of counsel's competency opinion

Other opinions cited:

• WSBA Informal Opinion 2099 (2005) (related competency-disclosure question under former RPC 1.13)

See also

• WA Ethics Op. 2185: disclosing dependency-case results to a funding agency
• WA Ethics Op. 2188: funds held in trust for a deceased client

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=1640

Original opinion text

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

Advisory Opinion: 2190
Year Issued: 2009
RPC(s): RPC 1.14, 1.2, 1.6, 1.13, 8.4(d), 3.4(c), 1.4(a)(5), 1.0(3), RCW 10.77, IO 2099
Subject: application of RPC 1.14 in competency proceedings under RCW 10.77

1. Background

The inquiring lawyer is employed by a non-profit corporation organized for the purpose of providing legal services to the indigent, primarily public defense in criminal cases. The lawyer asks about the duties of counsel in the context of raising competency in a criminal case, and focuses on RPC 1.2, 1.6, and 1.14.

The lawyer points out that there may be circumstances in which the client appears to be legally incompetent to participate in the proceedings. The question this raises is what, if any, information the lawyer is impliedly authorized to disclose. There is a prior opinion on a related question, Ethics Inquiry 2099 (2005), but the lawyer points out that there have been changes to former RPC 1.13, presently composed as RPC 1.14.

The lawyer then asks: “Under RPC 1.14 (b), is harm to the client’s constitutionally protected interest in competence during the criminal process one that is envisioned by the rule as an “other harm”?

“If so, under RPC 1.14(c), may counsel disclose information gained during the course of representation when raising competency?

“May counsel disclose statements made by the client?

“May counsel disclose observed behaviors?

“Should counsel seek appointment of a guardian ad litem prior to making such disclosures?

“If counsel is authorized to make disclosures under RPC 1.14(c), are the Courts, prosecutors, and psychological professionals employed by the State of Washington proper parties to those disclosures?”

2. Brief Response

If, in a criminal case, a lawyer representing a defendant is legally obligated to raise a concern about the defendant’s competency to the court, then the lawyer is ethically obligated to raise the concern with the court. Such a disclosure, however, reveals information relating to representation of a client under RPC 1.6, and the lawyer should limit the disclosure only to that information necessary to address the reason for the disclosure. In some circumstances, the lawyer may be able to state only that there is an issue with the client’s competency. As a result, the facts presented do not require the Committee to answer whether harm to a client’s constitutionally protected interest would constitute “other harm” for purposes of RPC 1.14.

3. Discussion and Analysis

3.1. Whether a lawyer representing a person charged with a crime has a legal obligation to raise a concern about competency with the court is a legal issue on which the Committee cannot opine. In order to provide guidance to the inquirer, and to be consistent with Informal Opinion 2099, the Committee will assume that a lawyer representing a person charged with a crime has an obligation to raise a concern about that person’s competency to the court. 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 defendant’s rights under the competency statute); State v. Israel, 19 Wn. App. 773, 779, 577 P.2d 631 (1978) (acknowledging counsel’s 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).

3.2. Assuming a lawyer has such an obligation, the lawyer is ethically obligated to raise the concern with the court. See Washington RPC 8.4(d) (conduct prejudicial to the administration of justice); RPC 3.4(c) (knowingly disobey an obligation under the rules of a tribunal); RPC 8.4(c) (dishonesty, fraud, deceit or misrepresentation).

3.2.1. The disclosure of a client’s competency is “information relating to the representation of a client” under RPC 1.6. See RPC 1.14 cmt [8]. This would be considered a “secret” since it is “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.” See RPC 1.6 cmt [17].

3.2.2. When a disclosure is legally required to be made, a lawyer should limit disclosure only to that information necessary to address the reason for the disclosure. Because a lawyer could simply inform the court of the existence of a competency issue, the lawyer should not disclose any communications that would be protected by the attorney-client privilege, and should not disclose any other secrets, including non-verbal gestures and observations. If asked by the court why the lawyer has formed the opinion, the lawyer should refuse to disclose that information due to the lawyer’s obligations under RPC 1.6(a).

3.2.3. Because, however, a lawyer is obligated to obey court orders, the lawyer is required to inform the court how it formed its opinion if the court so orders. The lawyer should attempt to mitigate any necessary disclosure by asking that the disclosure be made under seal or in chambers.

3.3. The only question remaining then is when, and under what circumstances, the lawyer will conclude that there are issues of competency that must be raised to the court. The Committee cannot opine on whether, and what type of, conduct should raise a concern of competency. The following points, however, are relevant to the ethics analysis:

3.3.1. A lawyer is required to discuss competency with the client and seek the client’s input about how to proceed. See RPC 1.2(a) (requiring a lawyer to abide by a client’s decisions concerning the objectives of representation and consult with the client as “to the means by which they are to be pursued”). See also RPC 1.4(a)(2) (requiring a lawyer to consult reasonably with the client about the means by which the client’s objectives are to be accomplished); RPC 1.4(a)(5) (requiring the lawyer to consult with the client about any relevant limitations on the lawyer’s conduct when the lawyer knows that the client expects assistance not permitted by the RPCs); RPC 1.4(b) (requiring a lawyer to explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation).

3.3.2. If a defendant informs the lawyer that he or she does not want competency raised in his or her case, a lawyer may take that statement into consideration as one of a number of factors that the lawyer weighs when determining competency. Stated differently, a lawyer may reasonably conclude, based on a consideration of all of the facts, that a defendant’s articulation that competency should not be raised is an indication that the defendant is at least competent enough to stand trial. Other considerations may include whether the defendant has a history of mental illness, whether the defendant has a history of involvement with the criminal justice system and may therefore be familiar with the various procedures, and whether the defendant is otherwise able to give informed consent to proceeding in this manner. See RPC 1.0(3) (stating that informed consent “denotes 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”). Lastly, a lawyer may also wish to obtain an early mental health evaluation to assess client’s competency, which may be especially helpful in the case of a defendant who does not wish competency to be disclosed.

3.3.3. Lawyers should also be aware of RPC 1.14, which requires a lawyer to maintain a normal attorney-client relationship with the defendant. Under the rule, the lawyer may take reasonably necessary protective action if 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. If a lawyer believes this to be the case, the lawyer may choose to consult family members or medical providers for assistance in maintaining as normal a relationship as possible with the defendant.

3.3.4 The inquiring lawyer also asks whether harm to a client’s constitutionally protected interest would constitute “other harm” for purposes of taking protective measures under RPC 1.14. Due to the above analysis, it is not necessary for the Committee to reach a conclusion on this point. It is worth noting, however, that there is a dearth of case law and no comments to the rule to clarify this point. Because the broad language of the rule, it would not be unreasonable to assume that “other harm” did constitute harm to a client’s constitutionally protected interest.

4. Recommendation All of the above.