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                                         123 N.J.L.J. 991
                                        April 20, 1989


Appointed by the Supreme Court of New Jersey


Representation of Client
Believed to be Incompetent

    This inquiry presents the following factual situation:

    Inquirer represents a public employee in a Civil Service case in which she is appealing the alleged improper termination of her employment. One of the issues involved was her tardiness in reporting for work. On the day of the hearing before an administrative law judge, she arrived 40 minutes late, although warned by counsel of the negative impact a late arrival would have upon her case.
    Upon her arrival, and thereafter, the client appeared irrational, totally incapable of assisting counsel, agitated and potentially violent. The administrative law judge conducted an in camera hearing on counsel's request for a continuance outside the presence of the client. A transcript of that hearing indicates that her husband testified that within the week before the hearing his wife had exhibited bizarre, paranoid behavior patterns. The husband further testified that he had been in touch with a crisis intervention center, is attempting to have his wife committed, and that the wife has threatened to file ethics complaints against counsel. At the request of the husband, counsel has not advised the client of the reasons for the continuance.

    The judge granted the continuance and said, "I think that counsel should petition Superior Court for the appointment of a guardian or a guardian ad litem... ."
    We are further told that the client has rejected a settlement offer which counsel believes to be in her best interest.
    Inquirer presents the following questions:*
    1.    Whether, under the circumstances presented, he should continue to represent his client?

    2.    How complete must an attorney be in advising a client of the status of the case under these circumstances?

    3.    Whether or not counsel can go forward with the hearing with client's consent if counsel has reason to believe she is incapable of effectively assisting in her own defense?

    In considering the questions presented, the following Rules of Professional Conduct appear to be relevant:
     RPC 1.3 - Diligence
        A lawyer shall act with reasonable diligence and promptness in representing a client.

     RPC 1.4 - Communication

        (a) A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.

* A question is presented as to whether an attorney is ethically bound to obey a Court's order where the client is not aware or capable of understanding the order. We understand this question as referring to an "Order" requiring the appointment of a guardian ad litem. Our reading of the transcript indicates that no such order was made. We, therefore, decline to respond to that inquiry. Further, if such an order were made, we could decline to respond since it could be an issue which would be the subject of a pending action. See R. 1:19-2.

        (b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.

     RPC 1.14 - Client under a Disability

        (a) When a client's ability to make adequately con sidered 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 shall 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.

     RPC 1.16 - Declining or Terminating Representation

        (a) Except as stated in paragraph (c), a lawyer shall not represent a client or, where representation has commenced, shall withdraw from the representation of a client if:

            (3) the lawyer is discharged.

        (b) Except as stated in paragraph (c), a lawyer may withdraw from representing a client if withdrawal can be accomplished without material adverse effect on the interests of the client, or if:

        (3) A client insists upon pursuing an objective that the lawyer considers repugnant or imprudent;

        (6) Other good cause for withdrawal exists.

        (c) When required to do so by rule or when ordered to do so by a tribunal, a lawyer shall continue representation notwithstanding good cause for terminating the representation.

     RPC 3.3 - Candor Toward the Tribunal

    (a) A lawyer shall not knowingly:

        (5) fail to disclose to the tribunal a material fact with knowledge that the tribunal may tend to be misled by such failure.

    The determination of a lawyer's responsibilities to a client who suffers from a mental infirmity or disorder is not an easy one. That determination must be based upon a sound judgment of the facts and circumstances involved. Usually, the attorney-client relationship is grounded in an assumption that a client, properly advised, can reach an informed decision. On the other hand, a mentally incapacitated person may neither have the ability or the legal authority to make a decision. However, there are varying degrees of incapacity as well as different levels of ability. Thus, one who has mental dysfunction may not be able to make a myriad of other decisions affecting his or her welfare. Model Rules of Professional Conduct Rule 1.14 comment (Proposed Final Draft 1981).
    Even though a disability exists, a lawyer's obligation to treat a client attentively continues. "If the person has no guardian or legal representative, the lawyer often must act as de facto guardian." Ibid. However, under those circumstances the lawyer is not his client's "guardian" and may not "substitute his own conception of 'best interest' for that of the client." Ibid. Where the best interests of the client would be served, a lawyer may be under the obligation to have a guardian appointed. Ibid. Such an evaluation must be based on the lawyer's professional judgment. Such a judgment should be made, if possible, after consultation with appropriate medical and family assistance and should consider factors such as the expense to the client and any traumatic or adverse effect of such a proceeding.
    The difficulties which inhere in situations such as that presented here are obvious. Several of a lawyer's basic duties may conflict. For example, the obligation of confidentiality, RPC 1.6, and the obligation of candor toward a tribunal, RPC 3.3. Other such conflicts may be posed. Thus, no hard, fast or inflexible rules can be formulated. We reiterate: the ethical obligations of a lawyer in matters of this type have to be resolved on the facts and circumstances involved recognizing that the "client is entitled to reasonable competence, preparation and communications... ." Model Rules of Professional Conduct Rule 1.14 comment, supra.
    Thus, it is our opinion that the lawyer must attempt to effec tively advise the client of the status of the case unless he soundly believes that she cannot comprehend or that the communication would adversely affect her health or well-being. If either exists or, as here, she is incapable of effectively assisting in her own defense (based on a firm professional judgment),the appointment of a guardian should be sought. Counsel may continue to represent his client here unless he believes the course of action he is forced to take would be imprudent or if his continued representation would adversely affect his client.

He would be required to continue his representation only if his withdrawal could prejudicially affect her.
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