NOTE: This opinion was reconsidered and has been replaced by RI-386.

CI-882

June 1, 1983

SYLLABUS

An attorney may represent a client of questionable mental capacity so long as the attorney may seek the lawful objectives of the client without prejudicing the client. An attorney may withdraw from representation of a client whose mental competency is suspect, where the client's own actions have made the attorney's representation unreasonably difficult, or where there is other good cause for withdrawal.

An attorney may not petition the probate court for a determination of the client's mental competency where to do so would compromise the client's best interests in the matters for which the attorney was retained, unless the attorney reasonably believes that the client cannot adequately act in the client's best interests.

An attorney may not testify as to a client's mental competency in a competency proceeding where that testimony would require the attorney to reveal protected information.

References: MCPR DR 2-110, DR 4-101(A), DR 7-102; CI-184.

TEXT

An attorney representing a plaintiff in a labor matter doubts the client's ability to make competent decisions about the representation. On the date set for trial, the client refused what the attorney considered to be a good settlement offer and insisted on proceeding. On cross-examination the client "made an absolute spectacle of himself. Despite considerable efforts devoted to preparing him for cross-examination, he was unable to control himself, testifying at great length without the slightest necessity of a question being asked of him." The following day the client announced that the defendant was trying to influence the jury through the use of secret handsigns and was practicing witchcraft and mind control in the courtroom. Further, the client told the attorney the client had sent a telegram to advise the judge of these matters.

The attorney informed the judge that based on the client's statements the attorney doubted the client's mental capacity and questioned whether the case could proceed in its present posture. After a hearing on the record but out of the hearing of the jury, the court declared a mistrial. The judge suggested that the attorney petition the probate court for a determination of the client's mental capacity.

The questions posed are as follows:

1. May the attorney ethically proceed to retry the case with a client whose capacity the attorney doubts?
2. May the attorney ethically withdraw from the case in light of the client's questionable competency?
3. May the attorney, pursuant to the trial judge's suggestion, petition the probate court for a determination of the client's competency?
4. Regardless of who files the petition for a determination of competency, may the attorney testify in the competency proceedings?

No facts are presented suggesting that the lawyer could not competently and diligently represent the interests of the client at retrial. MCPR DR 7-101(A) requires the lawyer to seek the lawful objectives of the client, and not prejudice the client's case. We assume that, despite the client's questionable mental state, the attorney does not doubt the legitimacy of the client's claims. So long as the attorney would not be called upon to "[k]nowingly advance a claim or defense that is unwarranted under existing law" [DR 7-102(A)(4)], or "counsel or assist the client in conduct that [the attorney] knows to be illegal or fraudulent" [DR 7-102(A)(6)], the attorney may proceed at retrial.

The attorney may ethically withdraw from the case pursuant to MCPR Canon 2 despite the client's questionable competency. CI-184 dealt with an attorney representing a client in a competency hearing, stating:

• "The requirement of an inquiry into all aspects of the commitment process should, however, in no way deter from the right or the obligation of the attorney to make certain recommendations to his or her client based on such findings and information as is available to the attorney, similar, as suggested, to the current criminal procedure. In the event a client is not inclined to accept such advice, the attorney must make a determination as to whether to go to hearing or trial, as provided by Act 258, or to withdraw, in conformity with MCPR Canon 2, DR 2-110."

MCPR DR 2-110 provides a number of circumstances under which an attorney may permissively withdraw. DR 2-110(C)(1)(d) provides that the attorney may withdraw if his client "by other conduct renders it unreasonably difficult for the lawyer to carry out his employment effectively." Further, subsection (6) provides that an attorney may withdraw if "[h]e believes in good faith, in proceedings pending before a tribunal, that the tribunal will find the existence of other good cause for withdrawal." Under the circumstances here, a court could reasonably find that the client has rendered it unreasonably difficult for the attorney to carry out employment effectively, or that other good cause exists for withdrawal. In light of the client's lack of control on the witness stand, it would appear that the court would be justified in permitting the attorney to withdraw should the attorney make that request. We understand the attorney's concern that if the client is truly lacking in mental capacity, the client would have the same difficulties with any other lawyer retained. While that may be true, nonetheless it does not bind the attorney to remain in a relationship which the client may have rendered unreasonably difficult for the attorney to continue.

If the client learns of the attorney's suspicions and seeks to discharge the attorney, DR 2-110(B) states:

"A lawyer representing a client before a tribunal, with its permission if required by the rules, shall withdraw from employment, and a lawyer representing a client in other matters shall withdraw from employment, if:

• ". . .

  "(4) he is discharged by his client."

Thus, should the client discharge the lawyer, it would appear there is nothing the attorney can do to prevent it.

While this Committee is not empowered to render a legal decision as to whether the attorney's firm would constitute persons entitled to ask for a conservator or a guardian for the client under the Michigan Probate Code, MCL 700.1 et seq, for purposes of this inquiry, we will assume that the attorney is so qualified. On this subject, ABA Model RUle of Professional Conduct 1.14 states:

"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."

In petitioning the probate court, the petition may not include any matter which would constitute a "confidence" or "secret" within the meaning of DR 4-101(A). An example of information that would fall outside the scope of DR 4-101(A) would be the transcript of the client's testimony before the trial court. In taking this action, the attorney should be specifically aware of DR 7-101(A) which provides:

"A lawyer shall not intentionally

• ". . .

  "(3) prejudice or damage his client during the course of the professional relationship, except as required under DR 7-102(B) [dealing with revealing information regarding a client's fraud upon a tribunal.]"

The filing of a petition seeking a conservator or a guardian for the client would obviously not be in the client's interest, and therefore contrary to DR 7-101(A), if the client is in fact competent. Any doubts that the attorney may have concerning the client's competency should be resolved in favor of the client before instituting this petition. Thus the caveat included within ABA Model Rule 1.14 that this action must be taken ". . . only when the lawyer reasonably believes that the client cannot adequately act in the client's own interest."

Finally, whether the attorney may testify in the competency proceeding depends upon DR 4-101, which provides:

"(A) 'Confidence' refers to information protected by the attorney-client privilege under applicable law, and 'secret' refers to other information gained in the professional relationship that the client has requested be held inviolate or the disclosure of which would be embarrassing or would be likely to be detrimental to the client.

"(B) Except when permitted under DR 4-101(C), a lawyer shall not knowingly:

• "(1) Reveal a confidence or secret of his client,
  "(2) Use a confidence or secret of his client to the disadvantage of the client,
  "(3) Use a confidence or secret of his client for the advantage of himself, or a third person, unless the client consents after full disclosure."

There are thus a number of public policy exceptions to the prohibition on release of privileged information contained in DR 4-101. These do not appear, however, to be based on the same type of concerns as the one presented here. For example, DR 4-101(C)(3) permits a lawyer to reveal the client's intention to commit a crime and the information necessary to prevent that crime. These facts do not indicate the client is likely to commit a crime, or that the client is considered dangerous or is likely to become violent toward self or others. We see only the client's pecuniary interests at stake and it is neither the attorney's duty nor right to waive the privilege to protect them. Further, there is a danger that attorneys would be asked to testify in such hearings as to the ultimate issue to be resolved in the hearing, that is, the client's mental capacity. Attorneys as a group are not qualified to give professional opinions on such an issue.

While the Committee may not offer a legal opinion as to what matters fall within the attorney-client privilege, we do not see sufficient reason in this case to expand the permissible disclosure under DR 4-101 to encompass the type or testimony that is present here. Of course nothing would prevent the attorney from testifying at such a hearing if the client gives consent under DR 4-101(C)(1), assuming the client is capable of giving such a waiver, or if ordered to do so by the Court pursuant to DR 4-101(C)(2).