Your client tells you that if he is convicted, he will not go quietly. Perhaps your client has difficulty understanding their legal op­tions in the case because of a mental defi­ciency. Or maybe your client wants to make all the tactical decisions about their case.

There are a limitless number of scenarios that lawyers may find themselves in that may require additional assistance regard­ing ethical obligations. Thankfully, lawyers needing advice have a place to go for answers. The State Bar of Michigan Ethics Helpline provides guidance for lawyers in difficult and complex situations. Below are examples of guidance received by members like you who faced ethical conundrums.

THE CLIENT WHO THREATENS THEMSELF OR OTHERS

There is no ethical obligation to act “except in limited circumstances where failure to act constitutes assisting the client.”¹ However, a lawyer may act if the lawyer’s knowledge may enable them to prevent the crime.² MRPC 1.6(c) states, in part, that a lawyer may reveal a client’s intent to commit a crime and is free to disclose the information necessary to prevent the crime even if that information constitutes a client confidence or secret.

If the lawyer would like to act, the first step is determining whether the client intends to commit a crime. “Knows” is defined in the comments to MRPC 1.0 under Terminology as “actual knowledge of the fact in ques­tion. A person’s knowledge may be in­ferred from the circumstances.” MRPC 1.6 Comment, Disclosure Adverse to Client, provides some guidance:

It is arguable that the lawyer should have a professional ob­ligation to make a disclosure in order to prevent homicide or serious bodily injury which the lawyer knows is intended by the client. However, it is very difficult for a lawyer to “know” when such a heinous purpose will actually be carried out, for the client may have a change of mind. To require disclosure when the client intends such an act, at the risk of profes­sional discipline if the assessment of the client’s purpose turns out to be wrong, would be to impose a penal risk that might interfere with the lawyer’s resolution of an inher­ently difficult moral dilemma.

Accordingly, if the lawyer knows the client intends to commit homicide or great bodily harm, they are free to disclose the informa­tion necessary to prevent the act, but to no greater extent than the lawyer reasonably believes necessary and that the timing is imminent. Where practical, the lawyer should seek to persuade the client to take suitable action.

Factors the Michigan lawyer may weigh in determining whether to disclose include the magnitude of the impending threat, prox­imity and likelihood of the contemplated threat, and the imminence of threat coming to fruition. Other factors include the nature of the lawyer’s relationship with the client and those who might be injured by the cli­ent, the lawyer’s own involvement in the transaction, and factors that may extenuate the conduct in question. The lawyer is given discretion because “whether the lawyer’s concern is based on moral or legal consid­erations, the interest in preventing the harm may be more compelling than the interest in preserving confidentiality of information.”³ It should be noted that this disclosure is per­missive, not mandatory.⁴

Moreover, if the client has been diagnosed with a disability that affects their capacity, MRPC 1.14(b) provides that the lawyer may “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 MENTALLY DEFICIENT CLIENT

Dealing with diminished-capacity clients is one of the most challenging dynamics in the lawyer-client relationship.

MRPC 1.14 states that the lawyer must “as far as reasonably possible, maintain a normal client-lawyer relationship with the client” whose ability to make decisions relating to the representation is impaired, whether by age, mental disability, or some other reason. The lawyer must treat the cli­ent with dignity and respect.

How a lawyer charts a course of repre­sentation with a client with diminished ca­pacity is always challenging because the duty of confidentiality must be honored; disclosing the client’s condition can have a detrimental impact on the client’s position in the subject matter of the representation; conflicts of interest may arise; and the client can have varying types of, or temporally intermittent, capacity.⁵ Moreover, disputes can arise between a protected individual and their representative, which can lead to a division in loyalty due to a divergence be­tween the lawyer’s obligation to the actual client and the fiduciary who has the legal right to make certain decisions on behalf of the protected individual. In this case, the lawyer must make both ethical and legal determinations in how to proceed.

The comments to MRPC 1.14 state that the lawyer may seek guidance from an appro­priate diagnostician in assessing the situa­tion. Only when the lawyer reasonably be­lieves that the client cannot adequately act in the client’s own interest may they seek appointment of a guardian or take other protective action.⁶ The definition of “other protective action” is broad and could in­clude consulting with family members, contacting the client’s diagnostician, seek­ing conservatorship, or requesting appoint­ment of a guardian ad litem.⁷

THE TACTICAL CLIENT

The lawyer has a client who wants to make all the tactical decisions about the case. This issue often arises when the client de­mands that the lawyer take action that is not ethically permitted or not in the client’s best interest. Clients have the right to make bad decisions, but they do not have the right to require the lawyer to do something unethi­cal, illegal, repugnant, or imprudent.⁸

MRPC 1.2 provides for the scope of repre­sentation, which states in part:

(a) ... A lawyer shall abide by a client’s decision whether to ac­cept an offer of settlement or me­diation evaluation of a matter. In a criminal case, the lawyer shall abide by the client’s decision, af­ter consultation with the lawyer, with respect to a plea to be en­tered, whether to waive jury trial, and whether the client will testify. In representing a client, a lawyer may, where permissible, exercise professional judgment to waive or fail to assert a right or position of the client.

Comment, Scope of Representa­tion: The client has ultimate au­thority to determine the purposes to be served by legal represen­tation, within the limits imposed by law and the lawyer’s profes­sional obligations. Within those limits, a client also hasv the right to consult with the lawyer about the means to be used in pursuing those objectives. ... In questions of means, the lawyer should as­sume responsibility for tactical is­sues but should defer to the client regarding such questions as the expense to be incurred and con­cern for third persons who might be adversely affected.

The intent of the Rules of Professional Con­duct is for the lawyer to see to it that the client’s subjective desires and objectives are the goal of the lawyer — as long as they are not illegal, fraudulent, or put the lawyer in violation of the rules.⁹ If the client insists on moving forward in a manner that places the lawyer in a position where the resulting action would be unethical, illegal, repugnant, or imprudent, the lawyer should consider withdrawal under MRPC 1.16.

CONCLUSION