Opinion 2099

FACTS

The inquirer is a public defender. Information revealed by the client during conversations in the course of the representation has given rise to a concern about the client`s competency to stand trial. The client has refused to allow the attorney to disclose the content of these conversations to the court.

The inquirer assumes that she has a legal obligation to raise her concern about competency to the court. For purposes of responding to this inquiry, we do not question this assumption. See In re Fleming, 142 Wn.2d 853, 863-67, 16 P.3d 610 (2001) (articulating the constitutional prohibition against trying an incompetent defendant and finding ineffective assistance of counsel for failure to raise a competency question with the court); State v. Colville, 88 Wn.2d 43, 47, 558 P.2d 1346 (1977) (defense counsel may not waive defendant`s rights under the competency statute); State v. Israel, 19 Wn. App. 773, 779, 577 P.2d 631 (1978) (acknowledging counsel`s dual role as representative of client and officer of the court, and holding that counsel`s opinion about competency is entitled to weight). See also RCW 10.77.050 (no defendant shall be tried as long as incapacity continues). Raising this concern will probably prompt the court to order a competency evaluation. See RCW 10.77.060 (1)(a) (when there is reason to doubt competency, the court shall appoint professionals to evaluate and report on the mental condition of the defendant).

The inquirer asks whether she can disclose client communications that form the basis for her competency concerns to the court or to mental health professionals charged with evaluating the client. She also seeks guidance regarding obtaining consent from the client to allow such disclosures to be made.

DISCUSSION

The Committee can opine on neither the application of the competency statute nor the statutory attorney-client privilege, both of which raise legal questions under Washington law. However, assuming that the lawyer is correct that Washington law required her to disclose to the court her concerns regarding the defendant’s competency, and that the basis for these concerns arose from conversations protected by the attorney-client privilege, this Committee will opine on the application of the relevant ethics rules.

Disclosure of Confidential Information

RPC 1.6 currently prohibits disclosure of client confidences and secrets, unless: 1) the client gives consent, 2) the disclosure is impliedly authorized in order to carry out the representation, or 3) the disclosure is permitted by other provisions of Rule 1.6. “Confidence” refers to “information protected by the attorney-client privilege under applicable law.” “Secret” refers to “other information gained in the professional relationship that the client has requested be held inviolate or the disclosure of which would be embarrassing or would be likely to be detrimental to the client.” RPC Terminology. Under the proposed amendment to RPC 1.6(a), protected “information relating to the representation” would include “confidences” and “secrets” as defined under the current rules. Proposed RPC 1.6(a) & cmt. [19].

Assuming without deciding the propriety of disclosing competency concerns to the court under Washington law, any such authorization does not extend to the disclosure of attorney-client conversations that form the basis of the lawyer’s concerns. These communications are protected under RPC 1.6(a). They must not be disclosed to anyone, including the court or mental health professionals, without the client’s informed consent. See State v. Webbe, 122 Wn. App. 683, 691-92, 94 P.3d 994 (2004).

Neither current RPC 1.13 (Client Under a Disability) nor proposed RPC 1.14 (Client with Diminished Capacity) leads to a different result. Under both versions of the rule, the lawyer must, “as far as reasonably possible, maintain a normal client-lawyer relationship with the client.” Raising competency concerns may result in the defendant being involuntarily detained and transported to a mental health facility for the purpose of evaluating or restoring competency. See RCW 10.77.090. In such situations, the client’s rights, including the lawyer’s ethical obligation to maintain confidentiality of information under RPC 1.6, must be zealously protected. See Proposed RPC 1.14, cmt. [8] (where disclosure of a client’s diminished capacity could lead to involuntary commitment proceedings, thereby adversely affecting the client’s interest, information relating to the representation is protected by RPC 1.6 and may not be disclosed by the lawyer unless authorized to do so). Thus, even if Washington law authorizes or requires the lawyer to disclose to the court competency concerns, the diminished capacity rule does not authorize the lawyer to disclose the content of confidential communications relating to the lawyer’s competency concerns absent the client’s informed consent.

Finally, the lawyer is permitted to disclose confidences and secrets to the extent the lawyer reasonably believes necessary in order to comply with a court order. RPC 1.6(b)(2); Proposed RPC 1.6(b)(6). If the court orders the lawyer to disclose confidences relating to the competency issue, the lawyer “should assert on behalf of the client all nonfrivolous claims that the information sought is protected against disclosure by the attorney-client privilege or other applicable law.” Proposed RPC 1.6, cmt. [13] (also requiring the lawyer to consult with the client about the possibility of appeal to the extent required by RPC 1.4 in the event of an adverse ruling). Under the circumstances presented here, this would include bringing to the court’s attention its obligations under relevant constitutional and statutory law, including any requirement under RCW Chapter 10.77 to order an evaluation of competency based on the concerns raised by the lawyer. If, notwithstanding these assertions, the court orders the lawyer to reveal information relating to the representation, and no appeal is sought after consultation with the client, the lawyer may comply, being careful to limit disclosure to confidences that the lawyer reasonably believes necessary to comply with the order.

Consent

Under the facts presented, the client has refused to authorize disclosure. However, the Inquirer seeks guidance regarding obtaining the client’s consent to disclose confidential information in this situation. Under the proposed amendment to RPC 1.6, client consent permitting disclosure of information relating to the client’s representation must be “informed,” denoting “the agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct.”
RPC 1.6(a),1.0(e).

Whether a client has the capacity to give informed consent depends on the particular facts, but the Committee believes that asking for consent is problematic if competence of the person giving it is an issue. In most situations, counsel will be able to disclose a concern to the court without revealing the confidential communication that led to the concern. In other situations, it may be appropriate for the lawyer to seek appointment of a limited guardian ad litem or independent consent counsel in order to protect and assert the client’s interests on the consent issue. See Webbe, 122 Wn. App. at 689 n.12, 693 n.20 (approving of the trial court’s appointment of a guardian ad litem/independent counsel for purposes of evaluating the client’s possible waiver of the attorney-client privilege).