Opinion #58. Entering Plea of Insanity If Client Objects

Issued by the Professional Ethics Commission

Date Issued: September 4, 1985


Attorney A represents a client accused of a crime. Attorney A believes that his client, ?although mentally competent to stand trial, suffers from a delusional belief structure which may support a defense of not guilty by reason of insanity.? In fact Attorney A believes that such a defense is clearly the most desirable course of action. However, the client has not authorized the attorney to enter such a defense and in fact may forbid the attorney to do so.


May an attorney enter a plea of not guilty by reason of insanity (a) without the client?s consent, or (b) over the client?s objection?


Before addressing the question posed, it is important to clarify the statement of facts as presented by the inquiring attorney. In representing a possibly disabled client, an attorney must initially determine if there is a question as to whether or not the client is in fact competent to stand trial. As pointed out in Thursby v. State, 223 A.2d 61 (Me. 1966), it is the duty of counsel to raise the issue to the court. The court must then determine if indeed the client is competent to stand trial. If the latter, then it appears the attorney must bring the issue to the attention of the court.

Once the court has determined the client is competent to stand trial, it is the client who must make the ultimate decision whether or not to assert the defense of not guilty by reason of insanity. It is the attorney?s duty to ?apply his best judgment in the performance of his services,? and he shall fully inform the client of his options so that an informed decision can be made. See Rule 3.6(a)[1] It is the attorney?s task to advocate the wishes of his client. The attorney may wish to withdraw from employment under the circumstances (see Rule 3.5(c)), but he cannot ignore the client?s wishes. He must not substitute his judgment for that of his client.[2]

Thus the attorney may not enter a plea of not guilty by reason of insanity without the client?s consent.


[1] ?In certain areas of legal representation not affecting the merits of the cause or substantially prejudicing the rights of a client, a lawyer is entitled to make decisions on his own. But otherwise the authority to make decisions is exclusively that of the client and, if made within the framework of the law, such decisions are binding on his lawyer. . . . A defense lawyer in a criminal case has the duty to advise his client fully on whether a particular plea to a charge appears to be desirable and as to the prospects of success on appeal, but it is for the client to decide what pleas would be entered and whether an appeal should be taken.? ABA Model Code of Professional Responsibility EC 7‑7.

[2] There may be occasions where the attorney may seek the appointment of a conservator or guardian under 18‑A M.R.S.A. § 5‑101 et seq. Once such a fiduciary is appointed, the attorney would have to respect decisions the representative is authorized to make on behalf of the protected person. However, this would not likely occur in a criminal context.

Enduring Ethics Opinion

Enduring Ethics Opinion #58 (November 2023)