By Don Green

and Marc Hankin

(in alphabetical order)

February 1997

There is widespread confusion and conflict about an attorney’s obligation when he or she represents a person who is mentally impaired, and the client’s mental impairment is in controversy before the tribunal. This problem is most commonly faced by a lawyer who is appointed by a court to represent a proposed conservatee. Shall the attorney fight vigorously for whatever the client requests or demands, even though the client apparently lacks the ability to understand and appreciate the consequences of continuing to act on his or her own without protective intervention? Or is the attorney’s obligation to do what the lawyer perceives as being in the best interests of the client? Debates on this topic can be heated, with each side confident of occupying the moral and legal ethical high ground.

Under Sullivan v. Dunne, 198 Cal. 183, 244 P. 343 (1926), the law of agency is generally applicable to the attorney client relationship; the capacity to contract is a prerequisite for an attorney to have the authority to represent a client. It is against public policy for a lawyer to enrich himself by obtaining "an authority which enables him, at his own discretion, and without let or hindrance from any one, to carry a defense to the limits of the law." Also, when a lawyer knows that a client has lost the capacity to contract, the lawyer has no standing to represent the client. [Compare a lawyer’s statutory authority to make binding stipulations dramatically affecting the disposition of a case (under Code of Civil Procedure §283) to a durable power of attorney, for which Probate Code §4120 requires capacity to contract.]

There is a rebuttable presumption affecting the burden of proof that a person lacks the capacity to contract if a person is substantially unable to manage his or her financial resources or to resist fraud or undue influence. Civ. Code § 39(b). There are cases in which incompetence may be ascertained scientifically and objectively. Prob. C. §§ 810-813. A lawyer has a sanctionable duty to make a reasonable investigation before taking a position in pleadings (Federal Rule 11; CCP § 128.6).

There is a strong presumption that a lawyer does have the authority to represent a client whom the lawyer claims to represent. Sullivan, supra. Reasonable doubts should be resolved in favor of capacity. Civil Code section 1576. Probate Code §810 and 811. In a conservatorship proceeding, if both the client and the attorney believe and contend the client has the capacity to contract, the court should presume that the lawyer does have the authority to represent the client . . . unless the court finds that the client is so severely mentally impaired that the client could not "understand the nature of the . . . proceeding." Sullivan, supra. In that case, the Court must find that the lawyer lack the standing to represent the client. Attached hereto is an ABA publication that attempts to give some definition to those terms, in a criminal law context.

The authors have been unable to find decisions in the Probate or general civil law defining the ability to "understand the nature of the proceeding." By contrast, criminal law decisions have developed tangible tests for the ability "to understand the nature of a proceeding." There are many reasons why it is understandable that criminal law has taken the lead on this issue. For example, in criminal law, the mentally impaired defendant’s own attorney often has an incentive to establish rather than contest a finding of legal mental incapacity, where a finding of legal mental incapacity would enable the client to avoid responsibility for the client’s conduct. Also many or most criminals suffer from serious mental defects; and many criminal law decisions have been published in recent years.

Criminal law controversies about competence provide useful guidance. Admittedly, a criminal law case seems to be the opposite of a conservatorship. The objective of a conservatorship is to protect a disabled individual, a principle goal of criminal law is to inflict retribution on an evildoer. But the two types of proceedings are similar in that they both involve an interference with a targeted person’s authority to act on his or her own without interference with civil liberties.

The legal system’s interference with an individual’s civil liberties is often characterized as a deprivation of the individual’s civil "rights." The balance of social policies between civil rights or liberties, on the one hand, and society’s duty to punish or protect, on the other, is surprisingly similar in both the criminal law and conservatorship contexts. Our understanding of this balance may be enhanced by focusing on deprivations of civil liberties rather than on civil rights. In the context of the conservatorship of a person suffering from brain disorders so severe that the disorders prevent the person (1) from having conscious or coherent thought, and (2) from having any ability to anticipate the future consequences of his or her acts, the term deprivation of civil rights carries moral associations that can be misleading. Other guidance in determining an attorney’s responsibilities comes from the law of agency, since an attorney has a fiduciary duty to the client just as an agent has to a principal.

In People v. Stanley, 10 Cal.4th 764, 42 Cal.Rptr.2d 543, 897 P.2d 481 (1995), the California Supreme Court rejected the argument (raised on appeal from a conviction) that competence to stand trial requires a separate consideration of both (a) "whether [the defendant] has a rational as well as factual understanding of the [nature of the] proceedings against him." (emphasis added) and (b) "whether [the defendant] has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding." The Supreme Court quoted with approval the Fourth District’s ruling, in James H. v. Superior Court, 77 Cal.App.3d 169, 177, 143 Cal.Rptr. 398 (1978) that "To anyone but a hairsplitting semanticist, the two tests are identical," (Emphasis added.) i.e., the ability to "understand the nature of the proceeding" and the ability to "assist or consult with counsel."

Rules of Professional Conduct: Candor and the duty to act in the client's best interests require the attorney to disclose to the court the attorney's belief that his or her client is incompetent.

An attorney in a civil proceeding may not rely solely on the utterances of an incompetent client for direction. Sullivan v. Dunne, 198 Cal. 183, 244 P. 343 (1926), held that the law of agency is generally applicable to the attorney-client relationship. The capacity to contract is a prerequisite for an attorney to have the authority to represent a client in a civil proceeding. It is against public policy for a lawyer to enrich himself by obtaining "an authority which enables him, at his own discretion, and without let or hindrance from any one, to carry a defense to the limits of the law;" and when a lawyer knows that a client has lost contractual capacity, the lawyer has no standing to represent the client.

Where there is a question concerning the legal mental capacity of a principal who has signed a durable power of attorney, if the attorney in fact needs the information to carry out his or her duties (i.e., because the principal has become incompetent), Probate Code §4235 requires the principal’s lawyer to disclose relevant information when requested by an attorney in fact, apparently regardless of the incompetent client’s objections to the disclosure of confidential information. Hence, the often repeated contention that the lawyer’s duty of confidentiality is absolute is groundless.

In a criminal law proceeding, if a lawyer has serious doubt about the client's legal mental capacity, the lawyer must protect the client from the possibility of a wrongful conviction (of even a mere misdemeanor punishable by less than one year imprisonment) by affirmatively disclosing to the court the lawyer's doubts about competence. Penal Code §§ 1367 et seq., and the 6th Amendment right to the effective assistance of counsel. See, Dusky v. United States, 362 U.S. 402, 403, 80 S.Ct. 788, 789, 4 L.Ed.2d 824 (1960), and Drope v. Missouri, 420 U.S. 162, 171, 95 S.Ct. 896, 903, 43 L.Ed.2d 103 (1975) [hereinafter "Dusky/Drope"]. The disclosure obviously breaches the client’s expectation of confidentiality, but is required by the duty of loyalty, insofar as that duty requires the lawyer to act in the client’s best interests.

The medical community has explicitly addressed in statutory law the interplay between the "right" to doctor-patient confidentiality and incompetence. A psychiatrist (and any other type of physician) is required to breach the normal rule of patient/client confidentiality by reporting to Adult Protective Services cases of physical self-neglect, where harm due to incompetence may result. The physician who violates that rule, or who obeys an incompetent’s instruction to perform a high risk medical procedure with a low probability of benefit, is subject to professional discipline and civil liability for any harm that results. The patient's "consent" to the unwarranted procedure is deemed absent. The patient’s need for confidentiality with a psychiatrist may be at least as critical as the need for a lawyer’s confidentiality and advocacy.

Why would attorneys be put to any less of a burden to balance the different social concerns than psychiatrists? Respect for the legal system would not be enhanced by a rule allowing or requiring lawyers to inflict harm on a client whom the lawyer knows is incompetent, citing "the defense of civil liberties" to justify paying the lawyer for obeying the incompetent client's instructions to litigate "to the limits of the law," seeking a harmful result. Sullivan, supra. Our worst critics’ worst expectations certainly would be fulfilled by a lawyer who is handsomely paid for successfully defeating a conservatorship petition (or unsuccessfully waging a lengthy war of litigation against it), where the lawyer has clear evidence of his or her client’s incompetence (See, the standards for incapacity/incompetence in Prob. C. §§ 810-813, "DPCDA") and knows of the high probability of physical and financial harm which will result to the client, absent the protection of a conservatorship.

It is reputed that the law "hateth new," and it is widely acknowledged that the law lags behind the medical community in understanding and applying modern mental science. Thus it is no surprise that the legal community has not addressed in statutory law or Rules of Professional Conduct the interplay between attorney-client confidentiality and incompetence.

But under the law of agency, a lawyer is subject to the super-paramount duty of loyalty, which requires the lawyer to act in a client's best interests (Sullivan, supra, Civil Code 2232; Probate Code § 16002; and Flatt v. Superior Court, 9 Cal.4th 275, 36 Cal.Rptr. 537, 885 P.2d 950 (1994)). The duty of loyalty probably is the highest of the lawyer's ethical duties. Flatt, supra.

Cases of elder or dependent adult abuse illustrate one clear difference between criminal defense and the representation of a proposed conservatee. Few would argue that a client is better off in prison, yet clearly many people receive important care and protection in conservatorships. As indicated above, the law requires a criminal defense lawyer to affirmatively disclose to the court the attorney’s doubts about capacity, in order to protect a client from a possibly inappropriate misdemeanor conviction and imprisonment of less than one-year (Penal Code § 1367, et. seq., 6th Amendment, Dusky/Drope), thereby breaching the incompetent client’s expectation of confidentiality. The law could not logically simultaneously require a probate conservatorship lawyer to withhold the same information from a Probate Court, in order to sanctimoniously preserve and protect the incompetent’s "right" to confidentiality and the protection of civil liberties, where the withholding of such information will consign the incompetent victim to likely abuse and possible death.

It would be particularly ironic for our rules to vindicate the gamesmanship ethics of a probate conservatorship lawyer, who blindly obeys his or her client’s instructions, demonstrating little concern for the client’s true civil rights (e.g., protection from harm arising from the client’s incompetence, whether self-inflicted or from victimization by others) in a proceeding whose objective is the client’s protection.

In conclusion, case law demonstrates that attorneys are obligated to balance their clients’ utterances or wishes against the clients’ capacity and best interest. Although this burdens the attorney with difficult and ambiguous decisions, upon whom is it better to impose those burdens than the people who have been extensively trained and tested in the application of rules which are the tools of our society’s values? To the extent that the organized legal community may influence the bar at large, our society is better served if we acknowledge the obligation to use our skills to the benefit of those persons who are most greatly in need of just that support. We would do a disservice to our profession and to society at large by reducing the role of lawyers to mere advocates who roar righteously into battle based on the request of a clearly confused client, trying to secure the ‘freedom’ for a client who is likely thereby to be seriously damaged (typically, greatly increasing the attorney fees charged.). Instead we should enhance the recognition of lawyers as professionals burdened with the obligation to use their best judgment to balance the client’s liberties, rights and concerns against the client’s capacity and best interests.

People v. Samuel, 29 Cal.3d 489, 174 Cal.Rptr. 684 (1981).

See also, Wendland v. Superior Court, 96 Daily Journal D.A.R. 11143 (Sept. 11, 1996), holding:

A guardian ad litem (GAL) cannot fill the role of a court appointed attorney for a proposed conservatee who opposition to the conservatorship because a GAL may only be appointed if a person is incompetent or unable to understand the nature of a proceeding.

A guardian ad litem may be appointed only on a prior determination that the ward is incompetent. Code of Civil Procedure 372. See, e.g. In re Christina B., 19 Cal.App.4th 1441, 23 Cal.Rptr.2d 918 (Fourth Dist. 1993). By contrast, a lawyer is required to presume that the client is competent, in the absence of sufficient evidence to the contrary. Civil Code section 1576.

In People v. Stanley, supra, defense counsel in a capital murder case presented substantial evidence of incompetence. But since the defendant contended that he was competent, the trial court appointed an additional attorney at a competency hearing to represent defendant's personal point of view that he was competent. The California Supreme Court held that since the "defendant has an equally important interest in not being sent to a mental institution with his criminal case unresolved, if he is competent" (1) the defendant was not deprived thereby of due process, (2) or the effective assistance of counsel, and (3) the court did not create a conflict of interest by appointing counsel to represent the defendant’s personal viewpoint. "In so doing [the trial court] permitted the jury to hear every side of the issue of defendant's competence, thereby assuring defendant a fair trial."

In Mental Health proceedings a lawyer’s duty of candor, and the lawyer’s duty to act in his client’s best interests are subordinated to the lawyer’s duty to act as his client’s advocate and to put the prosecution to its proof. ABA Model Rule of Professional Conduct 1.14.