Mental health issues are prevalent in society, and certainly can interfere with many relationships. However, when a client’s mental illness interferes with a lawyer’s ability to appropriately represent a client’s interests, it can be very difficult to know how best to proceed.
In my experience, clients are often very hesitant to reveal their mental health diagnoses – and many have never been properly diagnosed.
com osowski oshkoshattorneys Beth D. Osowski,
North Dakota 1993, primarily practices in the areas of personal injury, worker’s compensation, and civil litigation at Kindt Phillips, SC, Oshkosh.
When inquiring on this topic, I recall one very unique client claiming that he/she was not mentally ill until meeting with me. I recall another who happily made a decision one day, denied the following day that it had ever happened, and then reaffirmed the original decision on the third day.
On each occasion, I needed to step back and re-evaluate how to best represent their particular interests. While the “CYA” memos and letters are probably even more important than ever in these situations, those serve to protect our own interests; they do little to safeguard the special needs of our clients.
Ethics Rules and Clients with Mental Illness
Unfortunately, Wisconsin’s ethical rules do not provide all of the answers.
In SCR 20:1.2 (Scope of representation and allocation of authority between lawyer and client), the ABA Comment  advises:
In a case in which the client appears to be suffering diminished capacity, the lawyer’s duty to abide by the client’s decisions is to be guided by reference to Rule 1.14.
ABA Comment  to SCR 20:1.4 (Communication) provides:
Ordinarily, the information to be provided is that appropriate for a client who is a comprehending and responsible adult. However, fully informing the client according to this standard may be impracticable, for example, where the client is a child or suffers from diminished capacity. See Rule 1.14.
Thus, our formal ethical guidance is mostly provided in SCR 20:1.14 (Client with diminished capacity). Accordingly, when dealing with a client with mental impairment, we “shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client.”
The ABA comments suggest that we are to “treat the client with attention and respect” and that we may be able to have “other persons participate in the discussion” without affecting the attorney-client evidentiary privilege, but (unless a representative has been appointed for the client), we still “must look to the client and not family members to make decisions on the client’s behalf.”
“Attention and respect” is fairly obvious; but it is not so clear what to do when maintaining a normal attorney-client relationship is not reasonably possible.
A formal ethics opinion from Alabama provided: “As the difficulty of the situation increases, so too does the lawyer’s responsibility.”1
Advice from Many Sources
After reading a significant amount of literature on dealing with clients with mental illnesses,2 I came away with the following advice:
1) Take the time to consider whether it appears the clients may not have the capacity to make the relevant decisions. In Kainz v. Ingles,3 the court addressed whether a plaintiff was incompetent such that Wis. Stat. section 807.10 would permit a guardian ad litem to accept a tort settlement on the plaintiff’s behalf. The court found that under section 807.10:
a person is incompetent if he/she lacks the ability to reasonably understand pertinent information, rationally evaluate litigation choices based upon that information, or rationally communicate with, assist and direct counsel. …
ABA comment 6 to SCR 1.14 also provides the following guidance:
In determining the extent of the client’s diminished capacity, the lawyer should consider and balance such factors as: the client’s ability to articulate reasoning leading to a decision, variability of state of mind and ability to appreciate consequences of a decision; the substantive fairness of a decision; and the consistency of a decision with the known long-term commitments and values of the client. In appropriate circumstances, the lawyer may seek guidance from an appropriate diagnostician.
2) In an especially protracted case, it is also possible for a client, who initially had the capacity to make decisions, to increasingly suffer from dementia or the effects of a traumatic brain injury.
3) Realize that every client presents with a unique set of challenges. Appreciating those challenges is a first step in understanding how to represent the client. Meet with the client. Ask open-ended questions. Listen to the client.
4) Be respectful. Work on your assumptions. Do not assume that people with mental illnesses are incompetent or unintelligent.
5) Attempt to understand the limits of your own communication style and try to adjust for the particular needs of the client. Pay attention to your own emotional reactions to the client’s unique behaviors.
6) Review medical and psychiatric records that have been requested as part of a personal injury case, or if appropriate, request records for the sole purpose of helping you understand the special needs of your client.
7) Request permission to talk with families, friends, and mental health providers, to gain a fuller understanding of the client’s issues.
8) Be flexible. Ask what works for them and (like the ADA demands of us in so many circumstances), make reasonable accommodations.
9) The title of “counselor” does not equate to being a mental health professional. We spend a lot of time trying to help our clients and to solve their problems. Resist the urge to diagnose and/or provide counseling for the mental illness.
10) Many people who walk into our offices are in crisis mode. When under extreme stress, people often become defensive or aggressive and often seemingly lose much of their capacity for short-term memory. Many of their decisions may not seem logical to you. It may even present as a mental illness when it is really just a short-term reaction to trauma and stress. People in this type of crisis may respond in ways that make us want to immediately reject their cases. Be patient.
11) When the client is especially difficult, stick to the facts as much as possible. If you are giving legal advice, just clearly give it. Do not argue with the client.
12) Remember that just because the client disagrees with your advice or offends your sensibilities, it does not mean that the client is unable to make those decisions. An Alaska ethics opinion clarified: “The lawyer has an absolute duty to advocate for the client’s desires even if those desires conflict with client’s best interests as viewed by attorney.”4
13) Set reasonable limits. If the clients insist on debating every issue repeatedly, assure the clients that you have fully understood their positions and that you either need to move on or end the conversation.
14) Set boundaries. Just because a client may suffer from a mental illness does not mean that you or your staff should be subjected to an unreasonable amount of verbal abuse. Help the client to understand your limits in attempting to “as reasonably as possible, maintain a normal client-lawyer relationship.”
15) If the clients have historically changed their positions, do not just send letters confirming what you heard; put it in writing during that meeting and have the clients sign to confirm their agreement.
16) Resist the urge to make decisions that the clients must make for themselves. Encourage your clients to assume an appropriate level of responsibility.
17) Advocates for people with disabilities encourage the use of “person first” language. In other words, put the person before the disability. Thus, it is preferred that we do not say that we have a “mentally ill client,” but rather, a “client with mental illness.”5
18) Become educated on different mental illnesses and their impacts. The National Alliance on Mental Illness (NAMI) offers this type of support.
To conclude, while representing a client with a mental illness can have its challenges, following some of the above advice will hopefully assist lawyers to zealously and successfully advocate for their client.
1 Alabama Ethics Opinion RO-95-03.
2 See: Pamela Hoopes, Representing Clients who have a Mental Illness (2015); Michael E. McCabe, Jr., What They Didn’t Teach You In Law School: Representing Client with Diminished Capacity (2015); Thomas Dalby, Representing a Mentally Disabled Client (1999); Casey C. Sullivan, Esq., Ethical Concerns When Representing Mentally Ill Clients, (2015); Timothy David Edwards, The Lawyer as Counselor Representing the Impaired Client, (2004); Lisa DuFour and Sharon Friedrich, In the Shadows: Dealing with Mental Health Issues (2013); Julie A. Short and Megann S Hendrix, Dealing with Capacity Issues in a Divorce, 34(2) Wisconsin J. of Fam. L. 20, (June 2015); Hon. Margaret Dee McGarity, Dealing with the Difficult Client, Difficult Opposing Counsel, or Difficult Pro Se Party, (2013); Legal Aid New South Wales, The Mental Health Advocates Practice Kit; 3.29 Annexure A—Interviewing the Mentally Ill Client (2008).
3 2007 WI App 118, ¶ 3, 300 Wis.2d 670, 731 N.W.2d 313.
4 Alaska Ethics Opinion No. 94-3.
5 See, e.g., National Center on Workforce and Disability, Watch Your Language.
This article was originally published on the State Bar of Wisconsin’s Litigation Section Blog. Visit the State Bar sections or the Litigation Section web pages to learn more about the benefits of section membership.