Bar Counsel Notes: Client shows signs of diminished capacity

Client Shows Signs of Diminished Capacity.

A client is not following his attorney's advice and is also acting contrary to the client's interests and his formerly expressed objectives in the legal matter. The attorney questions the client's capacity for rational thought and well-considered decisions concerning the litigation. The attorney feels conflicted about how to advocate for the client in these circumstances. See M. Bar R. 3.6(j) concerning clients with diminished mental capacity whereby, assuming the client's attorney reasonably believes the client has diminished mental capacity as defined by Bar">">Bar Rule 3.6(j)(2), the attorney is allowed to disclose confidences and secrets of the client as needed to protect the client's interests. But see also Advisory Opinion #58 (in a criminal proceeding, once the court has determined the client-defendant is competent to stand trial, it is that client - not his/her attorney - that must ultimately decide whether to assert the defense of not guilty by reason of insanity).

*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.