Opinion 2190

1. Background

The inquiring lawyer is employed by a non-profit corporation organized for the purpose of providing legal services to the indigent, primarily public defense in criminal cases. The lawyer asks about the duties of counsel in the context of raising competency in a criminal case, and focuses on RPC 1.2, 1.6, and 1.14.

The lawyer points out that there may be circumstances in which the client appears to be legally incompetent to participate in the proceedings. The question this raises is what, if any, information the lawyer is impliedly authorized to disclose. There is a prior opinion on a related question, Ethics Inquiry 2099 (2005), but the lawyer points out that there have been changes to former RPC 1.13, presently composed as RPC 1.14.

The lawyer then asks:
“Under RPC 1.14 (b), is harm to the client’s constitutionally protected interest in competence during the criminal process one that is envisioned by the rule as an “other harm”?

“If so, under RPC 1.14(c), may counsel disclose information gained during the course of representation when raising competency?

“May counsel disclose statements made by the client?

“May counsel disclose observed behaviors?

“Should counsel seek appointment of a guardian ad litem prior to making such disclosures?

“If counsel is authorized to make disclosures under RPC 1.14(c), are the Courts, prosecutors, and psychological professionals employed by the State of Washington proper parties to those disclosures?”

2. Brief Response

If, in a criminal case, a lawyer representing a defendant is legally obligated to raise a concern about the defendant’s competency to the court, then the lawyer is ethically obligated to raise the concern with the court. Such a disclosure, however, reveals information relating to representation of a client under RPC 1.6, and the lawyer should limit the disclosure only to that information necessary to address the reason for the disclosure. In some circumstances, the lawyer may be able to state only that there is an issue with the client’s competency. As a result, the facts presented do not require the Committee to answer whether harm to a client’s constitutionally protected interest would constitute “other harm” for purposes of RPC 1.14.

3. Discussion and Analysis

3.1. Whether a lawyer representing a person charged with a crime has a legal obligation to raise a concern about competency with the court is a legal issue on which the Committee cannot opine. In order to provide guidance to the inquirer, and to be consistent with Informal Opinion 2099, the Committee will assume that a lawyer representing a person charged with a crime has an obligation to raise a concern about that person’s competency to the court. 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).

3.2. Assuming a lawyer has such an obligation, the lawyer is ethically obligated to raise the concern with the court. See Washington RPC 8.4(d) (conduct prejudicial to the administration of justice); RPC 3.4(c) (knowingly disobey an obligation under the rules of a tribunal); RPC 8.4(c) (dishonesty, fraud, deceit or misrepresentation).

3.2.1. The disclosure of a client’s competency is “information relating to the representation of a client” under RPC 1.6. See RPC 1.14 cmt [8]. This would be considered a “secret” since it is “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.” See RPC 1.6 cmt [17].

3.2.2. When a disclosure is legally required to be made, a lawyer should limit disclosure only to that information necessary to address the reason for the disclosure. Because a lawyer could simply inform the court of the existence of a competency issue, the lawyer should not disclose any communications that would be protected by the attorney-client privilege, and should not disclose any other secrets, including non-verbal gestures and observations. If asked by the court why the lawyer has formed the opinion, the lawyer should refuse to disclose that information due to the lawyer’s obligations under RPC 1.6(a).

3.2.3. Because, however, a lawyer is obligated to obey court orders, the lawyer is required to inform the court how it formed its opinion if the court so orders. The lawyer should attempt to mitigate any necessary disclosure by asking that the disclosure be made under seal or in chambers.

3.3. The only question remaining then is when, and under what circumstances, the lawyer will conclude that there are issues of competency that must be raised to the court. The Committee cannot opine on whether, and what type of, conduct should raise a concern of competency. The following points, however, are relevant to the ethics analysis:

3.3.1. A lawyer is required to discuss competency with the client and seek the client’s input about how to proceed. See RPC 1.2(a) (requiring a lawyer to abide by a client’s decisions concerning the objectives of representation and consult with the client as “to the means by which they are to be pursued”). See also RPC 1.4(a)(2) (requiring a lawyer to consult reasonably with the client about the means by which the client’s objectives are to be accomplished); RPC 1.4(a)(5) (requiring the lawyer to consult with the client about any relevant limitations on the lawyer’s conduct when the lawyer knows that the client expects assistance not permitted by the RPCs); RPC 1.4(b) (requiring a lawyer to explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation).

3.3.2. If a defendant informs the lawyer that he or she does not want competency raised in his or her case, a lawyer may take that statement into consideration as one of a number of factors that the lawyer weighs when determining competency. Stated differently, a lawyer may reasonably conclude, based on a consideration of all of the facts, that a defendant’s articulation that competency should not be raised is an indication that the defendant is at least competent enough to stand trial. Other considerations may include whether the defendant has a history of mental illness, whether the defendant has a history of involvement with the criminal justice system and may therefore be familiar with the various procedures, and whether the defendant is otherwise able to give informed consent to proceeding in this manner. See RPC 1.0(3) (stating that informed consent “denotes 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”). Lastly, a lawyer may also wish to obtain an early mental health evaluation to assess client’s competency, which may be especially helpful in the case of a defendant who does not wish competency to be disclosed.

3.3.3. Lawyers should also be aware of RPC 1.14, which requires a lawyer to maintain a normal attorney-client relationship with the defendant. Under the rule, the lawyer may take reasonably necessary protective action if the lawyer reasonably believes that the client has diminished capacity, is at risk of substantial physical, financial or other harm unless action is taken and cannot adequately act in the client’s own interest. If a lawyer believes this to be the case, the lawyer may choose to consult family members or medical providers for assistance in maintaining as normal a relationship as possible with the defendant.

3.3.4 The inquiring lawyer also asks whether harm to a client’s constitutionally protected interest would constitute “other harm” for purposes of taking protective measures under RPC 1.14. Due to the above analysis, it is not necessary for the Committee to reach a conclusion on this point. It is worth noting, however, that there is a dearth of case law and no comments to the rule to clarify this point. Because the broad language of the rule, it would not be unreasonable to assume that “other harm” did constitute harm to a client’s constitutionally protected interest.

4. Recommendation
All of the above.