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End-of-life notice: American Legal Ethics Library

As of March 1, 2013, the Legal Information Institute is no longer maintaining the information in the American Legal Ethics Library. It is no longer possible for us to maintain it at a level of completeness and accuracy given its staffing needs. It is very possible that we will revive it at a future time. At this point, it is in need of a complete technological renovation and reworking of the "correspondent firm" model which successfully sustained it for many years.

Many people have contributed time and effort to the project over the years, and we would like to thank them. In particular, Roger Cramton and Peter Martin not only conceived ALEL but gave much of their own labor to it. We are also grateful to Brad Wendel for his editorial contributions, to Brian Toohey and all at Jones Day for their efforts, and to all of our correspondents and contributors. Thank you.

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Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.


California Legal Ethics

1.14   Rule 1.14 Client Under a Disability

1.14:100   Comparative Analysis of CA Rule

Primary California References:
Background References: ABA Model Rule 1.14, Other Jurisdictions
Commentary:

1.14:101      Model Rule Comparison

MR 1.14(a) states that when the client's decision making ability is impaired, "whether because of minority, mental disability or for some other reason," a lawyer shall maintain a "normal" client-lawyer relationship "as far as reasonably possible." When a lawyer reasonably believes that the client cannot "adequately" act in his or her own interest, the lawyer may seek the appointment of a guardian or take other protective action. See MR 1.14(b).

California does not have a statute or rule that corresponds to MR 1.14. With regard to MR 1.14(a), however, some California appellate court decisions and statutes offer guidance regarding the scope of a lawyer's duty in representing a client whose decision making ability may be impaired because of minority or disability. [See 1.14:200, Problems in Representing a Partially or Severely Disabled Client, infra].

MR 1.14(b) allows a lawyer to seek the appointment of a guardian or conservator when the lawyer "reasonably believes that the client cannot adequately act in the client's own interest." MR 1.14 Comment [3] notes that the lawyer should take such action "where it would serve the client's best interests." However, the evaluation of the client's "best interests" is simply "a matter of professional judgment on the lawyer's part."

California does not have a statute or rule equivalent to MR 1.14(b). On the contrary, three California ethics opinions conclude that a lawyer must not petition the court to have a conservator appointed for the lawyer's client, because doing so would violate the lawyer's duties of confidentiality and loyalty. See C.O.P.R.A.C. Op. 1989-112 (instituting conservatorship action calls for lawyer to divulge client's secrets and represent conflicting or adverse interests); L.A. Op. 450 (bringing conservatorship action constitutes representing adverse interest); S.D. Op. 1978-1 (bringing conservatorship action calls for lawyer to divulge client's secrets).

These California ethics opinions conclude that divulging information to third parties and or the court is improper. Even if the "information" is simply the lawyer's observations of the client's behavior, and did not reach the level of a privileged communication, such information nevertheless was received in confidence from the client. Disclosure would violate the lawyer's duty under B&PC 6068(e) to "maintain inviolate the confidence, and . . . preserve the secrets" of the client. See C.O.P.R.A.C. Op. 1989-112; L.A. Op. 450; S.D. Op. 1978-1. MR 1.14 does not take this position. MR 1.14 Comment [5] states: "[D]isclosure of the client's disability can adversely affect the client's interests . . . The lawyer's position in such cases is an unavoidably difficult one. The lawyer may seek guidance from an appropriate diagnostician."

California ethics opinions also conclude that instituting conservatorship proceedings for a client at the request of another is improper because it would necessarily require advocating and protecting the interests of third parties, which creates a conflict of interest under CRPC 3-310. Additionally, if the client's capacity to look after his or her own interests is in question, the client might well be incapable of waiving the conflict by "informed" written consent. See C.O.P.R.A.C. Op. 1989-112; L.A. Op. 450; S.D. Op. 1978-1.   

California law thus does not envision the situation addressed by new MR 1.14 Comments [6] and [7] (amended February 3, 1997, American Bar Association House of Delegates, San Antonio, Texas, per Report No. 113), which specify the circumstances under which "Emergency Legal Assistance" may be appropriate. Under MR 1.14 Comment [6], a lawyer may take legal action on behalf of a person with a disability whose health, safety or financial interest is threatened with imminent and irreparable harm, even though the person is "unable to establish a client-lawyer relationship" or is incapable of making or expressing "considered judgment" on the matter, when the disabled person or another person "acting in good faith on that person's behalf" has consulted the lawyer. MR 1.14 Comment [7] requires a lawyer acting on behalf of a disabled person in an emergency to keep the person's confidences as if the person were a client, except to the extent disclosure is necessary to accomplish the protective action.

While MR 1.14 Comments [6] and [7] seem to allow for a short-term, pseudo-attorney-client relationship, California law does not address this possibility. Where MR 1.14 Comment [6] would allow a lawyer to act even where the disabled person "is unable to establish a client-lawyer relationship," older California law holds that such a person cannot validly confer the authority to act on an agent. See Sullivan v. Dunne (1926) 198 Cal. 183, 193, 244 P. 343 (dismissing appeal from guardianship for lack of authority; if incompetent lacks understanding that he may initiate appeal in his own capacity, guardianship proceedings were necessary to protect client's interests); McClure v. Donovan (2nd Dist. 1947) 82 Cal.App.2d 664, 667, 186 P.2d 718 (even if incompetent husband requested the lawyers who represented his wife in marriage nullification proceedings to act for him in appealing the judgment holding him incompetent, he was unable to understand the meaning of what he said; thus such request could not confer valid authority). California law does not address a lawyer's duty to keep confidential the confidences of a disabled person incapable of forming a client-lawyer relationship for whom the lawyer is acting in an emergency.

1.14:102      Model Code Comparison

While there was no counterpart to MR 1.14 in the Model Code, EC 7-11 and EC 7-12 offered some guidance to a lawyer representing a disabled client. EC 7-11 noted that "the responsibilities of a lawyer may vary according to the intelligence, experience, mental condition or age of a client . . . Examples include the representation of an illiterate or an incompetent."

EC 7-12 stated that a lawyer representing a client "incapable of making a considered judgment on his own behalf" has additional responsibilities. Such responsibilities may include making decisions on the client's behalf; the lawyer should "consider all circumstances and act with care to safeguard and advance the interests of his client." Regardless of the client's legal qualifications to perform certain acts, the lawyer "should obtain . . . all possible aid" from a disabled client who is "capable of understanding the matter in question or of contributing to the advancement of his interests."

Like EC 7-11, California law similarly acknowledges that a lawyer's responsibility may vary depending upon the client's capacity, at least when the lawyer is representing a child. California statutes and case law not only recognize distinctions between children on the basis of age, but like EC 7-12's mandate to obtain aid from a client capable of understanding the matter in question, in some situations require a lawyer representing a child to consult the child about the child's preferences. See, e.g., Fam. Code 7891 (in proceedings to free child from parental custody, child ten years or older to be heard in chambers on the child's feelings, thoughts and preferences; however, counsel may waive the hearing in chambers); Fam. Code 3042 (if child is of sufficient age and capacity to reason so as to form an intelligent preference as to custody, court to give due weight to child's wishes); Welf. & Inst. Code 317 (e) (in dependency proceedings, counsel for a minor at least four years old shall interview minor to determine minor's wishes and inform court of minor's wishes); Fam. Code 3151 (in custody proceedings, the role of child's counsel is to "gather facts that bear on the best interests of the child, and present those facts to the court, including the child's wishes when counsel deems it appropriate for consideration by the court''); see Deborah S. v. Superior Ct. (5th Dist. 1996) 43 Cal.App.4th 741, 751-752, 50 Cal.Rptr.2d 828 (in dependency proceeding where mother who had severely abused a child was denied reunification with her other three children, counsel for the children was not ineffective in failing to make a record of their wishes where two of the children were under four at the time of the proceeding).

1.14:200   Problems in Representing a Partially or Severely Disabled Client

Primary California References:
Background References: ABA Model Rule 1.14, Other Jurisdictions
Commentary: ABA/BNA 31:601, ALI-LGL 35, Wolfram 4.4

Under California law, the degree to which a lawyer may use his or her judgment in making a decision on behalf of the client appears to depend on the degree of incapacity of the client, and on the specific legal context in which a decision is to be made.

Severely Disabled Client

In Conservatorship of Drabick (6th Dist. 1988) 200 Cal.App.3d 185, 245 Cal.Rptr. 840, Drabick's brother and conservator sought to have Drabick's life support withdrawn, after his coma was diagnosed as a persistent vegetative state. Drabick's court-appointed counsel agreed. On appeal, the state public defender argued that Drabick's lawyer had inadequately represented his interests, both because the lawyer, a public defender, had the duty to advocate continued treatment, and because effective representation required an adversary position. Id. at 212. The appellate court held that the conservatee's counsel need not automatically oppose the conservator's petition. Id. at 213. At least where the client is permanently unconscious, the conservatee's lawyer is entitled to be guided by his own understanding of the client's best interests. Id. at 212. See also, Hollaway v. Scripps Memorial Hospital (4th Dist. 1980) 111 Cal.App.3d 719, 168 Cal.Rptr. 782 (trial court erred in removing lawyer for brain-damaged child for possible conflict of interest between child and lawyer or child and parents, where court believed lawyer improperly refused reasonable settlement; lawyer must use sound professional judgment in good faith to protect client's rights).

Partially Disabled Client

California courts have noted that counsel's duty to ensure that a client is competent to understand the nature of the proceedings and to assist in his or her own defense may be at odds with the client's asserted interest. In an action to terminate parental rights, one appellate court held that a mother who suffered mental retardation and a dependent personality disorder was not denied effective assistance of counsel by her lawyer's failure to request a competency hearing or the appointment of a guardian ad litem. In re R.S. (5th Dist. 1985) 167 Cal.App.3d 946, 978-80, 213 Cal.Rptr. 690. The court noted the tension inherent in counsel's contending on the one hand that the mental deficiency from which the parent suffers did not make her incompetent to support and control her child, and on the other hand, asserting in the same proceeding that the parent is mentally incompetent to personally participate in the proceedings and requires the appointment of a guardian ad litem to protect her interests. Id. at 979. The appellate court in R.S. held that it was proper to rely upon counsel "acting in the best interests of his client . . . to assure that no person incompetent or otherwise incapable of understanding the proceedings against him be forced to participate in a proceeding at which significant rights are at stake." Id. See also, In re Ronell A. (2nd Dist. 1996) 44 Cal.App.4th 1352, 1367, 52 Cal.Rptr.2d 474 (father who was substance abuser and chronically mentally ill nonetheless understood nature of proceedings against him and was able to participate meaningfully and cooperate with counsel in representing his interests; thus counsel need not have requested guardian ad litem).

Client Incompetent to Stand Trial on Criminal Charges

Whether a lawyer has an obligation to follow his possibly impaired client's directives with regard to arguing incompetence or diminished capacity depends on whether the argument is to be made in the criminal trial or in a Pen. Code 1368 competency hearing (when defense counsel informs court that defendant is or may be "unable to understand the nature of the criminal proceeding or to assist counsel in the conduct of a defense in a rational manner," see Pen. Code 1369, court shall suspend trial and order competency hearing).    

In People v. Stanley (1995) 10 Cal.4th 764, 42 Cal.Rptr.2d 543, 977 P.2d 481, counsel for defendant standing trial for murder suspected his client was incompetent when the client refused to waive the doctor-patient privilege to allow in psychiatric testimony to aid his case in mitigation. After determining at a hearing that the defendant was prima facie incompetent and ordering a full competency hearing, the trial court appointed additional counsel to represent Stanley at the competency hearing. At the competency hearing, Stanley's second counsel represented Stanley's view that he was in fact competent, while his original counsel argued that he was not. Id. at 803. The California Supreme Court rejected Stanley's argument on appeal that he was denied due process and effective assistance of counsel by being represented by two conflicting lawyers. Id. at 804-806. The court noted that, once there has been a prima facie showing of incompetence, defense counsel is required to "advocate the position counsel perceives to be in the client's best interests even when that interest conflicts with the client's stated position." Id. at 804. That the court acted further to protect Stanley's interest by appointing counsel to argue his personal view that he was competent did not prejudice defendant, since he also had an interest in not being sent to a mental institution if he was competent. Id. at 805-806.

See also, People v. Masterson (1994) 8 Cal.4th 965, 974, 35 Cal.Rptr.2d 679, 884 P.2d 136 (counsel need not entrust key decisions to the client in competency proceedings, but must be allowed to do what counsel thinks is best in determining client's competence); People v. Samuel (1991) 29 Cal.3d 489, 174 Cal.Rptr. 684, 629 P.2d 485 (counsel had authority to introduce illegally obtained confession in competency hearing; since prima facie showing of mental incompetence has been made, lawyer must play a greater role in making fundamental choices for defendant, and cannot be expected to seek approval of strategic decisions made in course of proving incompetence); People v. Bolden (4th Dist. 1979) 99 Cal.App.3d 375, 160 Cal.Rptr. 268 (defendant not denied effective assistance of counsel by lawyer's arguing defendant's incompetence in spite of advocating defendant's position; lawyer may act contrary to express desires of client when he doubts client's present sanity). Cf., People v. Howard (1992) 1 Cal.4th 1132, 1186, 5 Cal.Rptr.2d 268, 824 P.2d 1315 (honoring defendant's decision not to present a mitigation case did not constitute ineffective assistance of counsel since there was no reasonable doubt that defendant was competent; preference for death penalty does not by itself raise reasonable doubt as to competence); People v. Medina (1990) 51 Cal.3d 870, 899-900, 274 Cal.Rptr. 847, 799 P.2d 1282 (no error where defendant adjudged competent first withdrew insanity plea, then reinstated plea against advice of counsel; presently sane defendant has control over decision, regardless of tactical considerations).

Child Client

Both statute and case law govern a lawyer's role in representing a child in proceedings involving custody, dependency, and the termination of parental rights. See, e.g., Fam. Code 3151(a):

The child's counsel appointed under this chapter is charged with the representation of the child's best interests. The role of the child's counsel is to gather facts that bear on the best interests of the child, and present those facts to the court, including the child's wishes when counsel deems it appropriate for consideration pursuant to Section 3042. The counsel's duties, unless under the circumstances it is inappropriate to exercise the duty, include interviewing the child, reviewing the court files and all accessible relevant records available to both parties, and making any further investigations as the counsel considers necessary to ascertain facts relevant to the custody or visitation hearings.

Similarly, but more specifically, Welf. & Inst. Code 317 (c) provides that in dependency proceedings, in which a child is to be or has been removed from the child's home because of neglect or abuse, the primary responsibility of counsel appointed to represent a child is "to advocate for the protection, safety, and physical and emotional well-being of the minor." Because counsel for the minor is charged with the representation of the minor's interests, he or she should investigate as necessary to ascertain the facts, make recommendations to the court concerning the minor's welfare, interview the minor if four years old or older, and inform the court of the minor's wishes. Welf. & Inst. Code 317(e). However, 317(e) provides that "[c]ounsel for the minor shall not advocate for the return of the minor [to the minor's parent] if, to the best of his or her knowledge, that return conflicts with the protection and safety of the minor." Id.

As one court clarified in In re David C. (5th Dist. 1984) 152 Cal.App.3d 1189, 1207-1208, 200 Cal.Rptr. 115, counsel for the minor must be "truly independent" in order to protect the child's interests, and should not function simply as a mouthpiece for either the child's desires or for the concerned governmental agency. To that end, counsel must investigate the facts and make an informed judgment on behalf of the client. Id. The court also noted the possibility of a conflict of interest arising when the district attorney represents a child in dependency proceedings which could lead to criminal prosecution of the parents. Id. at 1206. This concern resulted in an amendment to Welf. & Inst. Code 317(c) in 1987:

Counsel for the minor may be a county counsel, district attorney, public defender, or other member of the bar, provided that the counsel does not represent another party or county agency whose interests conflict with the minor's. The fact that the district attorney represents the minor in a proceeding pursuant to section 300 [dependency proceedings as a result of parental neglect or abuse] as well as conducts a criminal investigation . . . arising from the same or reasonably related set of facts . . . is not in and of itself a conflict of interest. The court shall determine if representation of both the petitioning agency and the minor constitutes a conflict of interest. If the court finds there is a conflict of interest, separate counsel shall be appointed for the minor.

See also, In re Patricia E. (3rd Dist. 1985) 174 Cal.App.3d 1, 8-9, 219 Cal.Rptr. 783 (minor denied effective assistance of counsel in appointment of county counsel who also represented welfare department, where record did not indicate counsel ever spoke to minor, knew of minor's concerns, or made independent assessment after investigation of child's interests that joint representation would present no actual conflicts of interest); In re Mary M. (4th Dist. 1986) 180 Cal.App.3d 1058, 1066, 226 Cal.Rptr. 5 (counsel had no duty to argue children's preferences to the court, but properly recommended termination where there was extensive evidence at trial that parents were unlikely to provide adequate care); In re R.S. (5th Dist. 1985) 167 Cal.App.3d 946, 974, 213 Cal.Rptr. 690 (minor was not denied effective assistance of counsel by district attorney's failure to call mother's companion as witness; independent counsel appointed for the minor may determine trial tactics by his evaluation of minor's best interest); In re Christina L. (2nd Dist. 1981) 118 Cal.App.3d 737, 747, 173 Cal.Rptr. 722 (counsel for petitioning agency did not adequately represent child's interests where no evidence was presented at hearing regarding how child might be affected by removal from foster home where she had stayed since infancy).

The appropriate tactics for counsel representing a minor brought within the jurisdiction of the juvenile court under Welf. & Inst. Code 602 for behavior that would be a crime will vary depending on whether there is a contested issue of fact or law. Under Welf. & Inst. Code 680, in the absence of such a contested issue, the juvenile court's proceedings are to be "conducted in an informal nonadversary atmosphere with a view to obtaining the maximum cooperation of the minor upon whose behalf the petition is brought and all persons interested in his welfare . . ."

Four juveniles arrested for participating in a sit-in at the University of California at Berkeley claimed that they were denied the effective right to counsel because their lawyers were "placed in the ambivalent position of being simultaneously the minor's representative and an agent of the court in promoting its philosophy of cooperation"; they alleged that the probation department's pressure on their counsel to cooperate in order to receive a favorable disposition rendered their counsel ineffective. In re Bacon (1st Dist. 1966) 240 Cal.App.2d 34, 44-45, 49 Cal.Rptr. 322. The court rejected the minors' claims, citing Welf. & Inst. Code 680 and noting that a proceeding in the juvenile court is "in the nature of a guardianship." The court also noted that the minors were advised of their right to counsel, and represented by counsel before the court who were given the right to present their case as at any adversary proceeding. Id. at 45.

Counsel appointed to protect from psychological harm children who are victims of lewd and lascivious acts under Pen. Code 288(d) will have ethical obligations toward the clients, but may not act as the prosecution's agent, interfering arbitrarily with access to those children. People v. Pitts (5th Dist. 1990) 223 Cal.App.3d 606, 273 Cal.Rptr. 757.

1.14:300   Maintaining Client-Lawyer Relationship with Disabled Client

Primary California References:
Background References: ABA Model Rule 1.14(a), Other Jurisdictions
Commentary: ABA/BNA 31:601, ALI-LGL 35, Wolfram 4.4

[See 1.14:102 Model Code Comparison, supra; 1.14:200 Problems in Representing a Partially or Severely Disabled Client, supra].

1.14:400   Appointment of Guardian or Other Protective Action

Primary California References:
Background References: ABA Model Rule 1.14(b), Other Jurisdictions
Commentary: ABA/BNA 31:601, ALI-LGL 35, Wolfram 4.4

[See 1.14:100 Comparative Analysis of California Rule, supra].