FLORIDA BAR ETHICS OPINION
October 1, 1985
Advisory ethics opinions are not binding.
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.
[Note: This opinion was reconsidered and approved by the Professional Ethics Committee
at its meeting of September 10, 1998]
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 prerogative 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 advance 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
(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
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.