Skip Navigation

 
The Florida Bar
www.floridabar.org


OPINION 73-25
April 18, 1974

A lawyer having good reason to doubt a client's competency owes his client a duty to express such doubts to him and request permission to obtain a judicial determination of the competency issue. Then, if the client refuses to consent to a competency determination, the lawyer should move for leave to withdraw from the cause, but should continue to protect his client's rights until withdrawal is permitted by the court.

Note: Compare Opinion 85-4.

Cases: Bodnar v. Bodnar, 441 F.2d 1103 (5th Cir. 1971); Schetter v. Schetter, 239 So.2d 51 (Fla. 4th DCA 1970)

Vice Chairman Daniels stated the opinion of the committee:

Inquiry is made concerning a lawyer's ethical rights, duties and responsibilities when he has good cause to doubt the mental competency of a client being represented in pending litigation. When such doubts arise, the lawyer owes his client a duty to express such doubts to him and request permission to obtain a judicial determination of the competency issue. The law affords incompetents numerous safeguards and protections which the lawyer should explain to the client. The lawyer should strive to obtain these safeguards and protections for a client deemed, for good reason, to be incompetent.

If the client consents to a competency determination, the law affords various avenues for deciding the issue. See, e.g., Bodnar v. Bodnar, 441 F.2d 1103 (5th Cir. 1971). However, ethical questions of great difficulty arise if the client refuses to consent to a competency determination.

A majority of the Committee is of the opinion that if the client refuses to consent to a competency determination, a lawyer having good reason to doubt such client's competency should move for leave to withdraw from the cause. The motion for leave to withdraw should not mention incompetency and should be framed so as to cause the least possible prejudice to the client's rights. Cf., Schetter v. Schetter, 239 So.2d 51 (Fla. 4th DCA 1970). Until withdrawal is permitted by the court, the lawyer should continue his efforts to protect the client's rights.


[Revised: 08-24-2011]