Bar Counsel Notes: Incapacitated Client/Scope of Representation

Lawyer and her criminal client disagree concerning the client's competency. The jail has reported to Lawyer real safety concerns about client's self-harming behaviors. Since then, the judge has ordered a competency evaluation. If that evaluation comes back recommending client's transfer to Riverview and the client opposes that transfer, what can/should Lawyer do? Can Lawyer authorize that client be sent there?

No, that decision is for the court to make. Lawyer can inform client of her recommendation that client should start treatment at Riverview sooner than the anticipated court order. But if client opposes that option, then Lawyer must make client's view known to the court. Lawyer must then wait to see the outcome of the evaluation and the court's ruling. While MRPC 1.14 permits some flexibility for Lawyer's dealing with her client, it does not allow Lawyer to go that far (i.e. involuntary Riverview commitment) without a court order. (See also MRPC 1.2 Scope of Representation and PEC Opinion #58).

*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.