Bar Counsel Notes: Client confidences/incapacity

An attorney represents a criminal client whom the attorney feels may be incompetent to stand trial. What should the attorney do?

Advisory Opinion #58 of the Professional Ethics Commission (September 4, 1985) states that an attorney has a duty to raise competency issues with the court. If the court then determines that a client is competent, the client then must make the ultimate decision whether to assert the defense of not guilty by reason of insanity. The opinion noted that the attorney is obliged to "...apply (the lawyer's) best judgment in the performance of ...professional services", and must fully inform the client of the available options so that an informed decision can be made by the client. See M. Bar R. 3.6(a). In reaching its conclusion, the Commission cited Thursby v. State, 223 A.2d 61 (Me. 1966) and also quoted from ABA Model Code of Professional Responsibility EC 7-7.

*Disclaimer: The Informal Ethics Advisory Notes from Bar Counsel are intended as outreach by the office of Bar Counsel for the use and benefit of the Maine bar. These scenarios are drawn from actual telephone calls received by the attorneys in the office of Bar Counsel in the course of providing informal advice on the Code of Professional Responsibility, known as Bar Counsel's "Ethics Hotline." The particular advice in each case is limited with reference to the particular factual situation related by the inquiring attorney who must be inquiring about his or her own conduct or the conduct of a member of his or her firm. We do not provide any advice to one attorney about the conduct of another attorney unless they are members of the same law firm. In the telephone opinions, we usually explore and discuss additional factual variables. However, I have attempted to pare down these factual scenarios to make the email newsletter more readable and useful in a general sense. Obviously, that creates the risk that slight variations on the facts, to a learned reader, may give rise to a different analysis and conclusion.