Lawyer Must Follow Impaired Client’s Wishes In Most Cases


Lawyers who represent mentally impaired clients often wonder: is the lawyer’s duty to advocate the client’s wishes, no matter how peculiar, or to act in the client’s best interests? That was the dilemma facing New Hampshire attorney Tony Soltani after his client was committed to a mental hospital.

Richard A. (his full name is withheld in the official court proceedings) was the subject of a commitment proceeding. Evidence at his trial indicated that he was severely psychotic. He believed that the FBI had implanted monitors and transmitters in his body, and he threatened to swallow coins in order to force medical personnel to x-ray him—which he hoped would reveal the implants. More distressingly, he barricaded himself in a room with a hatchet and refused treatment.

Richard A. was represented by a court-appointed attorney. The attorney made his best arguments, but the evidence was strong and the trial judge committed Richard A. to the New Hampshire Hospital for up to one year of treatment. Richard A. instructed his lawyer to appeal.

The lawyer’s dilemma was immediately clear. In his view there was no basis for an appeal, and lawyers’ ethical rules prohibit filing frivolous actions. The lawyer could not follow both his client’s wishes and the rules governing the profession.

A similar problem often arises in criminal cases when a defendant has been convicted and insists on an appeal. In a 1967 case arising in California the U.S. Supreme Court decided that the defendant’s right to an appeal was more important than the lawyer’s ethical limitations, and authorized the filing of a so-called “Anders” brief—in which the lawyer lists all the possible arguments the defendant might have made without arguing that the appeal should be granted. Richard A.’s attorney suggested that maybe he should be directed to take a similar approach.

The New Hampshire Supreme Court decided that Richard A.’s attorney must first try to dissuade him from appealing his commitment. If that is unsuccessful, however, the lawyer is permitted to file an appeal without arguing for reversal, similar to the criminal rules governing Anders briefs. The Court noted that it might summarily dismiss any appeal if it decided the appeal lacked merit. In re Richard A., April 18, 2001.

The case of Richard A. points to ethical problems faced by lawyers for the mentally impaired every day. It can be difficult to balance the client’s wishes with his or her legal interests, and following instructions can sometimes be harmful to the client. Generally speaking, the lawyer’s duty is to represent the client’s wishes. The lawyer’s job can be challenging in such a case; Richard A.’s case at least recognizes that challenge, even if does not resolve it.

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