Beginning July 1, 2021, a new Rule of the Texas Disciplinary Rules of Professional Conduct went into effect, Rule 1.16. It is intended to address the ethical problems of representing persons with “diminished capacity” a term that includes persons with mental impairment and intellectual disability. The central problem for lawyers has been the underlying assumption of the ethical rules that the client is mentally sound, an assumption often refuted by the reality of criminal defense lawyers often called upon to counsel and represent clients suffering from a mental disability.
Both the Code and the ethical rules are relatively clear about how to represent a person who is incompetent to stand trial. But the Rules have offered no guidance to lawyers about how to represent a client who is barely competent, but whose judgment is impaired due to illness. In Indiana v. Edwards, 554 U.S. 164, 173 (2008), the Supreme Court called such a client the “gray-area defendant,” legally competent to stand trial but who “lacks the mental capacity to conduct his trial defense unless represented.” Ethically, it has been an ethical no-man’s land.
The problem arises in those areas that award the client autonomy in criminal cases. Rule 1.02 specifically commands that the defense lawyer “shall abide by a client’s decisions” regarding the “plea to be entered,” the waiver of the right to trial by jury, and the decision whether to testify. Moreover, the lawyer cannot, even if it is sound strategy, concede guilt to a jury over the client’s objection. McCoy v. Louisiana, 138 S. Ct. 1500 (2018).
Without guidance, some attorneys decided to treat client decisions like any other, ignoring the impact of an illness on judgment, and dutifully obeying the ethical command even as the client was committing legal suicide. Others went the other direction, with an attitude of benevolent condescension, manipulating the events and the client as a countermeasure against his client’s illness, even against his will.
Rule 1.16 now provides guidance and expressly empowers the lawyer if certain preconditions are met. First, the defense lawyer must first reasonably believe that the client does in fact have diminished capacity due to mental illness. Secondly, this incapacity must render the client unable to “adequately act” in his own interest. Finally, the client’s diminished capacity has put him “at risk of substantial physical, financial, or other harm unless action is taken.”
If these preconditions are met, then the attorney is permitted to take “reasonably necessary protective action.” “Protective action” is intentionally broad to include the various courses of action that might arise. The Rule helpfully specifies that the lawyer may consult with “individuals or entities that have the ability to take action to protect the client.” The lawyer that has been hesitant to speak to others can be reassured that reaching out to those who care about the client is permitted under the Rules. When enlisting other people, the lawyer is directed by the Commentary to “look to the client, not the family members or other persons, to make decisions on the client’s behalf.”
The Rule also expressly addresses the attorney-client privilege issue: “the lawyer may disclose the client’s confidential information to the extent the lawyer reasonably believes is necessary to protect the client’s interests.” The Commentary directs the lawyer to consider the client’s consent before disclosing confidential information under these circumstances. “Only in compelling cases should the lawyer disclose confidential client information if the client has expressly refused to consent. The authority of a lawyer to disclose confidential client information to protect the interests of the client is limited and extends no further than is reasonably necessary to facilitate protective action.”
This Rule was debated and the concerns of some members of the bar should be noted. The Legal Director of Disability Rights worried about the Rule’s impact on clients who expected their lawyer to “be their advocate, not their protector.” Another objection was that the Rule invites lawyers “to make untrained judgments about a client’s mental state with no real guidance.” Time will reveal the wisdom of this Rule, but in the meantime, the criminal defense lawyer does address a frequent dilemma in our profession with some guidance, however minimal.