Ethical Concerns When Representing Mentally Ill Clients

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By Casey C. Sullivan, Esq. on July 07, 2015 2:01 PM

Nearly one in five American adults suffer from a mental illness at some point, with almost ten million adults experiencing serious mental illnesses that interfere with daily life. This means that, sooner or later, most lawyers will encounter a client with some sort of mental illness or impairment.

Working with a client with mental illness can raise serious ethical questions about your representation, your client's competency, and the form of your relationship. Here are some issues to consider in the event that you find yourself representing a client with a mental illness.

The Basics

How a client's mental illness impacts your representation will vary based on the nature and extent of the illness and the professional and ethical requirements of your jurisdiction. The implications would be much different if the divorcing father you represented had untreated schizophrenia as opposed to moderate depression.

The Model Rules of Professional Responsibility set out the basic guidelines for dealing with clients with mental illness. When a client's "ability to make adequately considered decisions in connection with the representation is impaired" because of a mental disability, lawyers must, "as far as reasonably possible, maintain a normal client-lawyer relationship."

Pursuing Guardianships

A client may be competent in some respects and not others. For example, to create a will, a client need only understand such things as their assets and their family members. For greatly diminished clients, a lawyer may want to consider seeking a guardian for the client.

The Model Rules permit this when the lawyer believes a client "cannot adequately act in the client's own interest." Generally, a client must do more than act against her best interests or the advice of her lawyer, though exactly when a client is no longer able to act in her own interests will vary by state and the circumstances of the case.

Withdrawing From Representation

At some point, lawyers may consider severing their relationship with a client due to the client's mental illness. This might be when a client refuses to cooperate with the attorney, to accept a beneficial deal, or to cease a course of action the attorney believes will be harmful.

Under the Model rules, an attorney may withdraw from representation when a client insists on pursuing an "imprudent" objective, when representation is "rendered unreasonably difficult," or when "other good cause" exists. The catch, of course, is that lawyers cannot withdraw when there will be a "material adverse impact" on the client.

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