At one point or another, you will be faced with a client with a mental condition that raises an issue as to whether they are competent. The constitutional standard for competency to stand trial asks whether the defendant has a sufficient present ability to consult with their lawyer with a reasonable degree of rational understanding and whether they have a rational as well as factual under‑ standing of the proceedings against them.1
Often times, there are going to be cases where there is no doubt about the client’s competency or lack thereof. But what about the close cases? Even more difficult, what about the client who is adamant that they are competent when there is evidence to suggest otherwise? Or the client whose mental illness impairs their ability to make critical choices about their case?
These specific scenarios raise numerous ethical questions that are not easy to address or answer. These include, in no particular order, questions about the duty of loyalty, the duty of candor to the court, and the need to maintain confidentiality.
Don’t Go Runnin’ to the Court (Except for Funding)
When confronted with a client — appointed or retained — who appears to lack that fundamental “reason‑ able degree of rational understanding,” it is important for criminal defense lawyers to first embrace one of our most fundamental obligations: maintaining the confidences of the client. This is critical to developing an effective defensive strategy, while ensuring that the client’s rights are protected.
Many times, we see where lawyers, upon learning that the client has some mental illness or appears to have some mental illness, immediately notify the court (which inevitably places the State on notice) of what they have learned in their discussions with their client about their possible mental impairment. This is presumably due to the requirements set out in Article 46B of the Code of Criminal Procedure. Triggering those statutory requirements, however, may either not be necessary or punitive to the client. For instance, if a client is released on bond but is found to be incompetent and ordered to be transferred to a mental hospital, that is a substantial restriction on their freedom. Even worse, it is typically not due to any conscious choice or decision on their part. The more prudent course of action is utilizing an ex‑ pert that operates under the umbrella of the attorney‑client relationship and is able to consult with both the client and the attorney confidentially about the client’s mental condition. If you are appointed to represent a client or the client does not have the funds to retain a forensic psychologist, you should first file an ex parte motion for the assistance of an expert pursuant to Ake v. Oklahoma to evaluate the client before going to the court and invoking the procedures set out in Article 46B.004. You want to be careful to include enough information to get the court to approve the funding (e.g. “funding is needed for the appointment of a psychologist to help assist counsel evaluate any possible mental conditions and their impact on the defendant’s role in the alleged offense”), but not blatantly “suggest” the defendant may be incompetent to stand trial so as not to trigger the requirements of Article 46B.
All this is consistent with newly implemented Rule 1.16 of the Texas Disciplinary Rules of Professional Conduct titled “Clients with Diminished Capacity.” This rule, which upon closer inspection was obviously in‑ tended to apply to clients in the context of non‑criminal settings, nevertheless encourages lawyers to rely on others to “protect the client” with diminished capacity.2
This course of action is also preferable because it allows you to rely on an expert in the field of psychology to support or dispel any belief you as the criminal defense lawyer may have about the client’s mental capacity and ability to consult with you, rather than have to make those difficult determinations on your own.
To Disclose or Not Disclose?
Once you have the insight and opinion from your psychological expert regarding your client’s mental capacity, the next ethical conflict deals with whether there is an ethical obligation to disclose that information to the court and the prosecutor.
Again, as discussed previously, upon the court being presented with a suggestion that the defendant is incompetent, the court is required to take certain steps including appointing a “disinterested expert” to examine the defendant and report on their competency. In certain circumstances, however, a finding of incompetency could result in further harm to the client. What, if any, ethical obligation is there to disclose the fact that a defendant does not possess the required mental capacity to understand the proceedings against them? What happens when, for instance, during a plea colloquy, the court inquires of the attorney whether they believe the defendant is competent to enter their plea?
Rules 3.03 and 3.04 of the Texas Disciplinary Rules of Professional Conduct speak about, as titled, “Candor Toward the Tribunal” and “Fairness in Adjudicatory Proceedings,” but, like other rules, give little explicit guidance with how to deal with a situation like this. Comment 1 to Rule 3.03 makes it clear that “The advocate’s task is to present the client’s case with persuasive force.” However, “[p]erformance of that duty while maintaining confidences of the client is qualified by the advocate’s duty of candor to the tribunal.”
In some cases, disclosing the client’s incompetency to the prosecutor can be beneficial. Once the prosecutor realizes the possible impediment they face to prosecuting the defendant, a prosecutor might be compelled to dismiss the charges or offer an alternate resolution that does not require a plea or a trial. However, what happens when the disclosure has the opposite effect? Instead of agreeing to dismiss the charge, the prosecutor could insist on commitment or other harsh alternative to try and restore the defendant’s competency. In the federal criminal justice system, for instance, upon a finding of incompetency, the court “shall commit the defendant to the custody of the Attorney General” who “shall hospitalize the defendant for treatment in a suitable facility.”3 What if the defendant is released on bond (as is the presumption in federal cases) and suffers from an intellectual disability that cannot be treated with medication or therapy? One can see the harmful and cruel consequence that comes from disclosing the client’s incompetency in that scenario.
Again, there is no clear guidance from the Rules, their commentary, or any Ethics Opinion with how to make these determinations.
Who Gets to Call the Shots?
Only adding to these dilemmas, what happens when the client’s lack of competency or other mental impairment leads them to make choices that you, as the criminal defense lawyer, knows is not in the best interest of the client. For instance, what if the client does not want to be found incompetent even though your expert and your diligent review of that expert’s opinion leads you to conclude otherwise?
In the Preamble to the Rules, in the Section titled, “A Lawyer’s Responsibilities,” it states generally, “In all professional functions, a lawyer should zealously pursue client’s interests within the bounds of the law.” Comment 6 to Rule 1.01 of the Texas Disciplinary Rules of Professional Conduct, states,
Having accepted employment, a lawyer should act with competence, commitment and dedication to the interest of the client and with zeal in advocacy upon the client’s behalf. A lawyer should feel a moral or professional obligation to pursue a matter on behalf of a client with reasonable diligence and promptness despite opposition, obstruction or personal inconvenience to the lawyer.
That is a lot of power and responsibility for us as lawyers to assume. But what about the role the client plays in the attorney‑client relationship?
Rule 1.02 of the Texas Disciplinary Rules of Professional Conduct sets out limits for both the lawyer and the client. The Rule starts with the mandatory provisions where the client has the ultimate power to make decisions. As they relate to us as criminal defense lawyers, a lawyer shall abide by a client’s decisions (a) “concerning the objectives and general methods of representation,” and (b) after consultation with the lawyer, “as to the plea to be entered, whether to waive jury trial, and whether the client will testify.” The Rule then continues with the exceptions, which provide, among other things, that “A lawyer may limit the scope, objectives and general methods of the representation if the client consents after consultation.” Comment 1 to the Rule explains the interplay between the role of both the client and the attorney:
Both lawyer and client have authority and responsibility in the objectives and means of representation. The client has ultimate authority to determine the objectives to be served by legal representation, within the limits imposed by law, the lawyer’s professional obligations, and the agreed scope of representation. Within those limits, a client also has a right to consult with the lawyer about the general methods to be used in pursuing those objectives. The lawyer should assume responsibility for the means by which the client’s objectives are best achieved. Thus, a lawyer has very broad discretion to deter‑ mine technical and legal tactics, subject to the client’s wishes regarding such matters as the expense to be incurred and concern for third persons who might be adversely affected.
One must ask themselves whether these same principles apply to a client who is incompetent. In McCoy v. Louisiana, ‑‑ U.S. ‑‑, 138 S. Ct. 1500, 200 L. Ed. 2d 821 (2018), the Supreme Court held that the defendant in that case had absolute control over the decision to admit guilt despite his lawyer “reasonably assess[ing] a concession of guilt as best suited to avoid the death penalty.”4 This decision by the client was sacrosanct despite the client being “an unruly client” who “faced a strong government case.”5 It is worth noting, however, that the Court considered that the trial court “had determined that McCoy was competent to stand trial.”6
This is where the first step in dealing with a potentially incompetent client — obtaining a psychological expert to assist in your defense — can be of assistance. By having your own expert with their own observations of your client’s mental capacity, it will be easier to justify the decisions that you as the lawyer make to accomplish what is in the client’s best interests. In other words, if some mental illness is affecting the client’s ability to make certain decisions about the case, from an ethical perspective, it will help you making those decisions when you have the input from an expert in that field to weigh in and support your decisions.
However, there are always going to be situations where you must weigh the client’s autonomy and ability to decide for themselves what is in their best interest. In this regard, it is important to note that competency is not always clear and distinguishable. While a client’s mental illness may impede their ability to make certain decisions such as whether to plead guilty or not, they may possess enough capacity to set out what their objective is.
Even though the court’s assessment of a defendant’s competency to stand trial is a black and white determination, competency exists in degrees.7 A client may be competent enough to participate in a murder trial and yet that same client may not be competent to stand trial for a complicated financial conspiracy case. A client may be able to understand the roles of the actors in the court room and yet think aliens are coming to testify against him. As Justice Blackmun once stated, “Competency for one purpose does not necessarily translate to comptency for another purpose.”8
When addressing the court’s inquiry, keep in mind the continuum that competency exists on; then deter‑ mine whether for the purposes of the case the client is competent to proceed with trial, such that they can understand the charges against them, the roles of court officers, and be able to assist in their defense to the degree that their participation is required.
Dealing with a client with mental illness that lacks competency undoubtedly presents a criminal defense attorney with numerous ethical dilemmas. Only complicating matters is the lack of clear guidance from the Rules and their commentary, as well as differing perspectives as to what the attorney’s role is when representing an incompetent client. To help navigate this difficult territory, it is always best to have a psychological expert to assist both the attorney and the client. But one must be prepared — and well read on this issue — in order to ensure that the attorney is not only complying with the law, but their ethical obligations as well.
As always, the TCDLA Ethics Committee is here ready to advise and assist you with these ethical dilemmas.