The Florida Bar

October 1, 1985
[Note: This opinion was reconsidered and approved by the Professional Ethics Committee at its meeting of September 10, 1998]

An attorney whose client becomes mentally ill during the pendency of her dissolution of marriage has a duty to safeguard the client's interests and may seek appointment of a guardian if the attorney believes the client cannot adequately act in her own interest.

CPR: EC 7-12
RPC: Rule 4-1.14
Opinions: 73-25; Michigan Opinion CI 1055.

The inquiring attorney represents W, who is petitioning for dissolution of marriage. A settlement agreement had been made between W and H, her husband. However, before the settlement was complete, W began exhibiting signs of mental illness. The inquiring attorney suggested W seek professional help; however, W took this as evidence that the lawyer was possibly involved in a plot against her. W refuses to see a psychiatrist or psychologist. The attorney feels that it would not be in the best interests of W for her to withdraw from representation and states that she does not want to abandon her client by withdrawing. However, she does not believe that she could allow W to sign a stipulation or go to trial, or that she could divulge to a third party W's need for psychiatric help.

The attorney should consult Ethical Consideration 7-12, which deals with the problem of a client under a disability. The EC states:

Any mental or physical condition of a client that renders him incapable of making a considered judgment on his own behalf casts additional responsibilities upon his lawyer. Where an incompetent is acting through a guardian or other legal representative, a lawyer must look to such representative for those decisions which are normally the prerogrative of the client to make. If a client under disability has no legal representative, his lawyer may be compelled in court proceedings to make decisions on behalf of the client. If the client is capable of understanding the matter in question or of contributing to the advancement of his interests, regardless of whether he is legally disqualified from performing certain acts, the lawyer should obtain from him all possible aid. If the disability of a client and the lack of a legal representative compel the lawyer to make decisions for his client, the lawyer should consider all circumstances then prevailing and act with care to safeguard and advanc e the interests of his client. But obviously a lawyer cannot perform any act or make any decisions which the law requires his client to perform or make, either acting for himself if competent, or by a duly constituted representative if legally incompetent.

The Proposed Rules of Professional Conduct deal further with the issue. Rule 4-1.14 states:

(a) When a client's ability to make adequately considered decisions in connection with the representation is impaired, whether because of minority, mental disability or for some other reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client.

(b) 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 following the rule points out that "[i]f the person has no guardian or legal representative, the lawyer often must act as de facto guardian." Also, where the client's interests would best be served by appointment of a guardian, the comment would encourage the attorney to seek such an appointment. However, the comment recognizes that appointment of a legal representative may be traumatic for a client. It states that "[e]valuation of these considerations is a matter of professional judgment on the lawyer's part."

Florida Opinion 73-25 would require the lawyer to express to W her doubts as to W's competency and request permission to seek a judicial determination of competency. If W were to refuse (and it appears that she would), then the opinion would have the attorney withdraw from the case. In the inquiring attorney's case, however, it appears that withdrawal would not serve the best interests of the client.

Among ethics opinions of other states, Michigan Opinion CI 1055 (October 19, 1984) speaks to the type of situation posed here. The digest of the opinion in the ABA/BNA Lawyer's Manual on Professional Conduct states:

A lawyer who represents a claimant for workers' compensation benefits may refuse to withdraw from employment if, in his professional judgment, withdrawal would not advance the best interests of his client and the lawyer has serious doubts about the mental stability and competency of his client. A lawyer has a duty to safeguard the interests of a client who is mentally incompetent, including making decisions on behalf of the client such as whether to waive or fail to assert a right or position, or whether to petition the court for appointment of a legal representative.

The inquiring attorney does not have to abandon her client by withdrawing. The attorney should do what she can to safeguard the interests of her client, including making prudent decisions in behalf of the client. If the attorney believes the settlement between H and W to be fair, the attorney may help W to exercise her rights in the dissolution.

If the attorney believes that W cannot adequately act in her own interest, and that a guardian may be necessary to safeguard W's interests, the attorney may seek appointment of a legal guardian for W, even over W's objection if absolutely necessary. The inquiring attorney is in the best position to decide the proper course of action from the suggestions above. In proceeding, the attorney should be careful to respect the rights of her client, to act in the client's best interests, and to avoid overreaching.

[Revised: 08-24-2011]