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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