Ethics Opinions

Opinion No. 80-4

April 1980

Summary: Where a court-appointed attorney for a patient in an involuntary commitment proceeding is told by the client that she no longer wants the attorney to represent her, the attorney must bring the client's statement to the court's attention but may not withdraw from the representation unless directed to do so by the court. In addition, the attorney (a) cannot suggest to a third person that a guardian be appointed for the client, (b) cannot initiate guardianship proceedings against the client, but must represent the client and her interests in any such proceedings which might be brought, and (c) where the client has executed a consent to voluntary commitment under circumstances which the attorney feels give rise to grave doubts about its voluntariness, the attorney must challenge the validity of the client's consent.

Facts: The inquiring lawyer was appointed to represent a patient in an involuntary commitment proceeding after she was placed in a state hospital on an emergency basis because of her refusal to accept prescribed medication. At the lawyer's first interview with the client, the client clearly indicated that she wanted to be released, although the lawyer found it impossible otherwise to communicate with her about the case. On the morning of the commitment hearing, the hospital's attorney informed the lawyer that the client had voluntarily committed herself. Later that day, however, when the lawyer asked the client whether she had really consented to commitment, the client gave no sensible, consistent answer to that question, but instead stated: "Who says you're my lawyer anyway? I want to get my own lawyer. You're trying to commit me."
The lawyer believes that one effective way of dealing with his client's problem would be to have the client's sister appointed her guardian for the limited purpose of consenting to the administration of medication. He doubts, however, that the sister could effectively pursue this advice without his assistance.
The committee has been asked to respond to the following questions:
(1) May an attorney who has been appointed to represent a patient in an involuntary commitment proceeding continue to represent the patient after she has stated that she does not want him as her attorney?
(2) If the attorney believes his client to be incompetent to make certain decisions, may he suggest to a third person that the client be declared incompetent and that a guardian be appointed to make those decisions?
(3) To what extent could the attorney initiate or be involved in such proceedings?
(4) Where a patient signs a voluntary commitment form under circumstances which raise grave questions about the patient's competence to make such a decision, must a court-appointed attorney who was to represent the patient at an involuntary commitment hearing continue to represent the patient by challenging the voluntariness of the commitment?

Discussion: The rapid development of the law regarding involuntary commitment has left guideposts for the attorney seeking direction as to his professional duties in performing such representation. Much of the current substantive law in this field has evolved since the ABA's adoption of the Code of Professional Responsibility in 1969. Consequently, the only provision of the code which directly addresses the problems encountered in representing a client whose competence is questionable provides little guidance other than to admonish that "[a]ny 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." EC 7-12.
The problem is further complicated by the wide diversity in the commitment systems of the various states and the differences in the roles counsel is expected to play in each. We are not considering here the lawyer's obligations as a guardian, which are greatly different from those as counsel to a patient. The statutory commitment procedures of Masachusetts General Laws c.123 place the attorney in the adversarial role of counsel to the patient. This adversarial role, which the Massachusetts legislature and courts have deemed appropriate for commitment proceedings, establishes the basic context within which the foregoing questions must be addressed. Cf. EC 7-3 and n.9.
Turning to the first question, although the client has stated that she wishes to have another attorney, the lawyer may not withdraw or consider himself discharged without the permission of the court since it was the court that appointed him. See DR 2-110(B). The lawyer should communicate the client's statement requesting a different lawyer, together with any reason for the statement he can ascertain, to the judge who has the responsibility to determine whether the representation should continue. This communication to the judge should be made very carefully to avoid disclosure of secrets or confidences of the client or prejudice to her case.
In answer to the second question, it would be inappropriate in the present case for the attorney to suggest to the court or a third person that a guardian be appointed for the client. Such a suggestion would reflect the attorney's conclusions as to the client's competence, conclusions which almost invariably would be based on confidential statements made by the client to the lawyer during the course of the representation and, therefore, protected by DR 4-101(B).1 Perhaps a more troublesome problem is the fact that appointment of a guardian results in a substantial loss of legal rights by the ward so that an attorney who suggests such an appointment is arguably violating DR 7-101(A)(3) by advocating a position prejudicial to his client's interests.
Clearly, an attorney cannot suggest the appointment of a guardian where the client appears to be competent and has expressed opposition to appointment of a guardian. There may be cases in which a client cannot lucidly express his desires to his attorney and in which it is so clear that appointment of a guardian is the only means by which important legal rights of the client can be preserved that an attorney would be justified in making such a suggestion. An attorney should not reach such a conclusion as a routine matter or without a thorough investigation of his client's situation. Here the client has repeatedly expressed a desire to avoid commitment, suggesting that she is aware of her situation and at least at times is able coherently to express her wishes. Hence, the attorney must suggest the appointment of a guardian to the client, explain the advisability of such an appointment to her, and attempt to elicit her feelings on the matter before he can even consider suggesting to a third person that a guardian be appointed.
In response to question 3, the attorney cannot initiate guardianship proceedings here for the same reasons he cannot suggest them to others. Presumably the court or the party petitioning for commital will take such action if it appears warranted.
Should such proceedings be brought, the attorney would be required to participate in them as counsel to the patient, and, if called as a witness, he would be bound to preserve his client's confidences and secrets. DR 4-101(B). In addition, if the attorney's testimony in such proceedings could be prejudicial to the client, he would be required to consider whether DR 5-102(B) required his withdrawal.
Finally, the answer to the fourth question flows directly from the attorney's obligation to zealously represent the client. DR 7-101(A)(1). Since the client has consistently expressed her desire not to be committed, the attorney must seek to have the commitment overturned by the court as the consent appears likely to have been coerced or the result of a lack of comprehension.
In considering each of the matters discussed above, the attorney should heed his moral and professional duties to counsel his client on both legal and non-legal matters. EC 7-8. The lawyer must remember, however, that despite his natural desire to decide what is best for the client, he is not necessarily the one best qualified by training or experience to do so. Litwack, The Role of Counsel in Civil Commitment Proceedings: Emerging Problems, 62 Cal. L. Rev 816 (1974). He must also remember that the legislature has determined that his primary role is that of advocate for his client and that the court has appointed him for that purpose.
1. Parenthetically, we question whether a lawyer could ever ethically claim that his client had consented to such disclosures under DR 4-101(C)(1) where the attorney himself believed the client to be incompetent.

Permission to publish granted by the Board of Delegates on May 21, 1980.
As stated in the Rules of the Committee on Professional Ethics, this advice is that of a committee without official governmental status.