Who says the client's crazy?
By Kenneth Kirk
(Footnotes denoted by parentheses)
Quick Quiz: It's a civil suit, with two parties. The Plaintiff has been acting increasingly erratic during depositions and pretrial hearings, to the point at which a question might be raised as to whether he is mentally competent. Who has the ethical responsibility to step forward and ask that a guardian be appointed?
You say it's the Plaintiff's attorney? Wrong, malpractice breath.
The ethical rules address the dilemma of the Plaintiff's lawyer in this hypothetical. They identify the problem, sympathize with it, take careful aim at the problem, and then point the gun skyward and fire blindly into the air.
The rule is ARPC 1.14, and in fairness it does give some vague guidance. It says that a lawyer may seek the appointment of a guardian or take other protective action with respect to a client only when the lawyer reasonably believes that the client cannot adequately act in the client's own interest.
The Comment to the Rule talks about this dilemma at some length. It notes that even a client lacking legal competence often has the ability to understand, deliberate upon, and reach conclusions about matters affecting the client's well being. It notes that Civil Rule 17(c) calls for an incompetent person to be represented by a guardian, guardian ad litem, next friend, or other person. It goes on to note that the client's disability can adversely affect the client's interest. It then concludes with the unhelpful statement that "the lawyer's position in such cases is an unavoidably difficult one." Well, perhaps that is taking it a bit too far; that statement could be helpful in one context: if I were defending a malpractice suit for having revealed the client's condition, I might want to point that language out to the jury.
What ARPC 1.14 really says is that the lawyer has to make a decision, but is under no obligation to seek a representative.
In addition to what can be found in our Rule and Commentary, the American College of Trust and Estate Counsel have issued commentaries on RPC 1.14 (which is part of the Model Rules of Professional Conduct) which repeatedly state that the standard for the lawyer to consider is the client's best interest.
Could it ever not be in the client's best interest to seek appointment of a representative if the client is incompetent? Sure it could. For example, imagine a child custody case in which the incompetent client is seeking to be appointed as the primary custodian of the children.
Or, imagine any case in which your client's testimony, and particularly your client's subjective view of events, is a critical issue. Let us not be naive: if the jurors figure out that the person sitting next to your client at the counsel table is some sort of legal representative, they may doubt your client's perception of events. Fair or unfair, if you are going to determine your client's best interest you have to consider prejudices like that.
Also, consider that a guardian may insist on being paid, and that it may lead to delays in litigation when your client may have good reasons to want to move forward promptly. If seeking a representative would not be in the client's best interest, then the responsibility of the incompetent person's lawyer is to keep quiet and muddle through.
The incompetent party's attorney will probably successfully survive a malpractice suit if he or she reveals the client's condition. See In the Matter of S.H.(1) But that doesn't mean the Plaintiff's attorney in our hypothetical has a legal or ethical responsibility to reveal it. (No credit for that answer.)
Does the judge have responsibility? He or she certainly has the ability to make a determination in such a matter. Civil Rule 17(c) provides that an incompetent person may sue by a next friend or by a guardian ad litem, and that other representatives such as a general guardian or fiduciary may defend the incompetent person. There should be little doubt that this is the sort of situation in which the judge would be able to act sua sponte. But does the judge have to? The Code of Judicial Conduct does provide that a judge shall accord to every person the right to be heard according to law.(2)
One could certainly argue that the right to be heard according to law, in the context of an incompetent person, would include the right to have a representative appointed. On the other hand, for the judge to take notice that the actions of a party suggest possible mental incompetence, might in many cases suggest that the judge is leaning toward a particular outcome in the case.
Under another part of the same rules(3) the judge is not to make public or non-public comments that might impair the fairness of a proceeding or substantially interfere with a fair trial. So, the judge has to balance the possible need of one of the parties for a representative, against the possibility of appearing to prejudice the outcome of the trial. Tough situation. If you said it was the judge's responsibility to act, you get half credit.
This would leave, however, only the defense attorney, and one would assume it is not his or her responsibility to ask that the other side have a representative appointed. But one would be wrong.
In Stinson v. Holder(4), a real estate case, the losing party attempted to overturn the result by claiming that he was incompetent at the time of trial. The trial judge denied his motion, but the Supreme Court reversed and remanded for a hearing. If he had been incompetent at trial, the justices declared, then the entire result would have to be overturned and Mr. Stinson would be entitled to a new trial after a legal representative had been appointed.
A similar result was reached in Shields v. Cape Fox Corporation(5), in which a minor had not had a representative during litigation. However in that case, the young lady had turned 18 sufficiently before trial, and no prejudice was found in the fact that she was not represented by a guardian during the early stages of the litigation.
Imagine this result: The case goes forward, and no representative is ever appointed for the incompetent person. If the incompetent person prevails, there was no prejudice so the defense is stuck with the result. If the incompetent person loses, the result is overturned on a post-trial motion, and the defense has to go through it again. Lousy result for the opponent of the incompetent person.
The ethical rules require lawyers to act with competence, diligence, and zeal on behalf of their clients.(6) Unquestionably, if the opposing party may be incompetent and does not have a legal representative, the other party will be prejudiced if the trial goes forward without an examination of the competence issues. That party's attorney, therefore, has an ethical responsibility to raise the issue, in order that his or her client's interest will not be compromised.
So if, in the hypothetical, you said that the defense attorney has the primary responsibility, give yourself full credit.
1 987 P. 2d 735 (Alaska 1999).
2 Canon 3(7) to Alaska Code of Judicial Conduct.
3 Canon 3(9) to Alaska Code of Judicial Conduct.
4 996 P. 2d 1238 (Alaska 2000).
5 42 P. 3d 1083 (Alaska 2002).
6 ARPC 1.1(a), 1.3 and comment thereto.