Representation of Mentally Impaired Clients: An Ethical Issue


Consider the following scenario, which is all too common: A defendant is arrested and is obviously mentally ill upon arrest, as well as having a long mental health history. The person is housed in a mental health unit within the jail and tells you, as counsel, “I don’t want to go to no hospital.”

However, you fear that he will not be able to get through a plea agreement. And, even if the defendant is charged with a misdemeanor and not a felony, you know that at the very least it will require 30 days to obtain a competency evaluation—if not longer. As well, were the defendant found incompetent the person would languish for 3 months awaiting space in a competency restoration program, which itself would last another 60 days, at best. Thus, even with a misdemeanor matter, be it a Class B or Class A, the likelihood is that the person will remain longer in custody—because he or she is mentally ill—than would have occurred had mental illness not been a factor, or had been brought to the attention of the court and the person pled out.1

Moreover, the foregoing in-custody period is exacerbated by the shortage of space in restoration programs. What do you do?


Representing mentally impaired clients inherently creates a conflict between the expressed desires of the client and activity by counsel in the best interest of the client. Herein, I will explicate this conflict and proffer at least one solution to the dilemma: “Do I act solely as my client wishes, or do I try to find an outcome which is in his/her best interest, even if the client is opposed?” And, if so, under what conditions?

Duty of Counsel

Tex. Disciplinary Rules Prof’l Conduct R. 1.02 plainly states:

(a) Subject to paragraphs (b), (c), (d) and (e), (f), and (g), a lawyer shall abide by a client’s decisions:

(1) concerning the objective and general methods of representation;
(2) whether to accept an offer of settlement of a matter, except as otherwise authorized by law;
(3) in a criminal case, after consultation with the law­yer, as to a plea to be entered, whether to waive jury trial, and whether the client will testify.

The necessity for zealous representation, respecting the client’s wishes, is not a laudable goal to which only lip service is given, but the very essence of justice. The presupposition, however, is that the client is not legally incapacitated—either in the civil sense, which would require appointment of a guardian,2 nor in the sense of being incompetent to stand trial. See Koehler v. State, 830 S.W.2d 665 (Tex. App.—San Antonio 1992), for a discussion of the differences between incompetence in a criminal proceeding and incapacity in the civil sense.

The aforementioned scenario captures the heart of the conflict. Examine, however, the comment to Rule 1.02(12), which states that the lawyer is legally authorized to represent the client and such is “established and maintained by consenting adults who possess the legal capacity to agree to the relationship.”3 That section, however, does not address the circumstance of the person who has legal capacity in the civil sense, but is believed, and later opined and found, to be incompetent to stand trial in a criminal proceeding, inasmuch as the person is lacking either a rational and/or factual knowledge of the proceedings against them—or is unable to relate to their attorney with a reasonable degree of rational understanding.4 The Disciplinary Rules, however, contain a requirement that counsel always demonstrate attention and respect, even to the most disabled client. See Rule 1.03(5).

When a lawyer reasonably believes a client suffers a mental disability or is not legally competent, it may not be possible to maintain the usual attorney-client relationship. Nevertheless, the client may have the ability to understand, deliberate upon, and reach conclusions about some matters affecting the client’s own well-being. Furthermore, to an increasing extent, the law recognizes intermediate degrees of competence. . . .The fact that a client suffers a disability does not diminish the desirability of treating the client with attention and respect.

Counsel’s duty regarding disclosure of information that is confidential and may be privileged concerning the defendant’s mental state is admittedly not discussed in the Disciplinary Rules. Such information may well include the defendant’s desire to avoid treatment, though such would but perpetuate the defendant’s disturbed behavior and place the defendant in a position where he or she would be harmed by others, if not themselves. However, by analogy, just as counsel would be obliged to disclose to the court information appertaining to the defendant’s plan to commit a crime, harm others or even self, the Rules cite Rule 5.03(d)(1), Tex. R. Evidence, “indicate the underlying public policy of furnishing no protection to client information where the client seeks or uses the dictates of lawyer to aid in the commission of a crime or fraud.” So, similarly, no protection should exist for information disclosed in the interest of protecting the defendant from himself or herself, or others.

Related, though more narrowly focused, is the circumstance in which counsel has reason to believe that introduction of the client’s history of mental illness is the only viable defense, but the client objects to any suggestion he is mentally ill. Such was the case in the Kaczynski case.5 In that case, the 9th Circuit ultimately held that the trial court acted properly, though the defendant had argued that in exchange for the United States renouncing its intention to seek the death penalty, his guilty plea was involuntary because his counsel insisted on presenting evidence of his mental condition, contrary to his wishes, and the court denied his Faretta request to represent himself. The 9th Circuit also held that a criminal defendant in a capital case has no constitutional right to prevent his appointed defense counsel from presenting evidence in support of an impaired mental state defense at trial.

The Kaczynski case should put to rest the notion that defense counsel could be censured for introducing to the court any evidence of the defendant’s mental state in connection with the offense. To be sure, an insanity defense would require the consent of the defendant to go forward, though such is also predicated on the fact that at the time of trial the defendant is also competent. In that regard, note that it would be impossible to engage a defendant in his/her thinking at the time of the act with which charged unless the person is both competent and consenting. Nonetheless, Ross6 is quite correct that “no ethical code or rule dictates which course a criminal must take when a client, her judgment apparently clouded by mental illness, resists following counsel’s advice. This is one of those cases that is at the margins of ‘ethical decisionmaking.’”

But even speaking more narrowly as to the issue of competence, I am inclined to argue that counsel’s role should be tightly circumscribed, such that even if a decision arose when the court’s attention were to be called to the defendant’s history of mental illness and current mental state, counsel could rely upon information readily available to all parties—e.g., jail mental health screening, history of any jail-based mental health services, and general references to inability to relate to the defendant or the defendant’s obvious behavior, such as inattention to personal hygiene, disturbances created in hold-over prior to appearing before the court, as well as any utterances by the defendant to the court that are patently strange, if not bizarre (any of which would constitute that modicum of information necessary to trigger an informal inquiry, and likely competency evaluation).7

In the foregoing illustration, counsel’s duty is met without necessity for abrogation of any otherwise privileged information. The next element related to duty, of course, is to carefully read the examination provided by the court-appointed examiner—as examiners may not always follow the exact language of Tex. Code Crim. Proc. art. 46B.024 and .025 viz. the content of competency examinations. An opinion of incompetency, and finding of same, will trigger a mandatory competency restoration commitment—to outpatient services if the person can be safely treated on an outpatient basis (and such is available), otherwise to a jail-based program (again if available, and only to an inpatient restoration program if other options are not available or if the examiner recommends such).8

Discussion of the Ethical Dilemma

When counsel acts in a fashion as described earlier, with the full knowledge that the defendant harbors quite different wishes, then counsel is exercising what in health law or probate settings is called “substituted judgment,” as counsel is substituting his/her judgement for that of the client—i.e. surrogate decision-making. And thus, inherently, counsel is acting in manner that diminishes the client’s autonomy.9 Ross speaks eloquently of the weight of such a decision and argues convincingly, I believe, of the necessity to limit the scope thereof. She says, “At a minimum, criminal defense lawyers should reserve surrogate decision-making for those occasions when a mentally ill client’s best interests outweigh the client’s right to autonomous decision-making.”

This means looking long term at therapeutic interests as having greater weight to establish autonomy and functioning—even if hospitalization for restoration is required, and even if that hospitalization results in a somewhat longer period of “confinement” (to the extent that hospitalization is considered “confinement”) than might occur were the defendant to take a plea, with such supports by counsel and preparation as would make it possible for the person to get through a plea agreement with any degree of rational understanding. To do otherwise is to argue that society has no parens patriae duty to provide treatment services to persons sorely in need of same, though the parents patriae doctrine has long been the basis of involuntary or court-ordered mental health services, going back to the time of Edward I in the 13th century.10 Like marriage, decisions to exercise substitute judgment by counsel “are not to be entered into unadvisedly . . . but discreetly.” And, perhaps, as well, with a certain degree of humility based on the fact that in any particular case, counsel may well be wrong—practically speaking, though not unethical.

I would further argue that in addition to duties to the mentally disturbed client, counsel has a duty to the court. That duty is part of the constitutional protections provided to defend, and so that failure to disclose that a defendant has not the requisite mental state to be able to participate in the proceedings, knowledge of same, or capacity to relate to counsel would constitute a constitutional violation and a fundamental breach of counsel’s duty to the client, including the duty of ethical and zealous representation. Moreover, when counsel raises the issue, then there is an opportunity for that entity which is legally authorized to evaluate the defendant’s state of mind to offer an opinion—providing another set of eyes who see the defendant from a professional perspective. Evaluation of defendants for whom there is some evidence of incompetency constitutes another set of protections for the rights of the person.


The upshot of the foregoing is that raising the issue of a defendant’s possible incompetency is proper, affords constitutional protections to the defendant, honors the legal process, and, in fact, is part and parcel of the duty of zealous representation and satisfies counsel’s duty to the court as well. However, any disclosures should be circumscribed and limited insofar as possible to asking the court to take notice of behaviors exhibited by the defendant which are readily available to all parties. Moreover, exercise of substituted judgment does diminish, to a greater or lesser extent, the autonomy of the defendant but is in the defendant’s best interests.


1. Torrey, E. F., Steiber J., Exekiel, J., et al. Criminalizing the Seriously Mentally Ill: The Abuse of Jails as Mental Hospitals. Washington, DC: Public Citizen’s Health Research Group, 1992. See also Teplin L. Criminalizing mental disorder: the comparative arrest rate of the mentally ill. Am Psychol 39:794–803, 1984 23.

2. Tex. Disciplinary Rules Prof’l Conduct R. 1.02(12) and (13).

3. Ibid., 1.02(12)

4. Tex. Code Crim. Proc. art. 46B.003

5. United States v. Kaczynski, 239 F3d 1108 (9th Cir. 2001) cert. denied 535 U.S. 993 (2002). See also Ross, Josephine (1998). Autonomy vs. a Client’s Best Interests: The Defense Lawyer’s Dilemma When Mentally Ill Clients Seek to Control Their Own Defense. 35 Am. Crim. Law Rev. (1997–1998).

6. Ibid., Ross at 1345.

7. Tex. Code Crim. Proc. art. 46B.004 would allow the issue of competency to be raised by either party, and only a “suggestion” of incompetency which means “a representation of incompetency from any credible source” would trigger an informal inquiry by the court. In contrast to an earlier period “the court is not required to have a bona fide doubt as to the competency of the defendant in order to order an examination.”

8. Ibid., art. 46B.071

9. Op. cit. Ross at 1345.

10. See discussion by Custer, Lawrence B. (1978) The Origins of the Parens Patriae Doctrine. 27 Emory L. J. (1978)

Floyd L. Jennings, JD, PhD
Floyd L. Jennings, JD, PhD
Floyd L. Jennings, JD, Ph.D., Chief, Mental Health Division, joined the Harris County Public Defender’s Office in January 2011. Beginning in 2008, he was a consultant to Harris County Court Administration. Dr. Jennings matriculated at UT Southwestern Medical School in Dallas, from which he received his Ph.D. in clinical psychology in 1972. He was licensed to practice psychology in 1974, and was a long-time adjunct faculty member at the UT Medical School–Houston (now UTHSC). He went on to earn his J.D. from the University of Houston Law Center and was admitted to the bar in 1996. Dr. Jennings is the author of over fifty publications in the area of mental health and law. He can be reached at and (713) 274-6700.

Floyd L. Jennings, JD, Ph.D., Chief, Mental Health Division, joined the Harris County Public Defender’s Office in January 2011. Beginning in 2008, he was a consultant to Harris County Court Administration. Dr. Jennings matriculated at UT Southwestern Medical School in Dallas, from which he received his Ph.D. in clinical psychology in 1972. He was licensed to practice psychology in 1974, and was a long-time adjunct faculty member at the UT Medical School–Houston (now UTHSC). He went on to earn his J.D. from the University of Houston Law Center and was admitted to the bar in 1996. Dr. Jennings is the author of over fifty publications in the area of mental health and law. He can be reached at and (713) 274-6700.

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