Opinion 1204

The Committee agreed with the opinion of the Committee members memorandum which follows:

This is a potential ethics question which never came to pass. Client went into attorney's office to keep her out of jail. She was suffering from at least a partial mental disability. She was receiving disability benefits as a result of her mental condition and is without funds to retain counsel. Attorney went to arraignment and obtained discovery. Prosecutor wanted client to obtain treatment or leave town and was willing to dismiss any charges with no restitution to be made if she would keep appointments with her mental health counselor.

Client indicated that this was okay with her but she didn't understand it. Attorney asks whether he has authority to enter into a plea agreement when the client is not capable of understanding it or does he have to obtain a Guardian Ad Litem pursuant to RPC 1.13.

This particular attorney has had two or three requests over the past 15 months and is great at setting up straw men. It should be pointed out to him that the Rules of Professional Conduct PREAMBLE provides "that justice is based upon the rule of law grounded in respect for the dignity of the individual ..." and a "lawyer's ... role requires an understanding by lawyers of their relationship with and function in our legal system.' "

Under TERMINOLOGY we find that "consult" or 'consultation' denotes communication of information reasonably sufficient (emphasis added) to permit the client to appreciate the significance of the matter in question." Further, "reasonable" or "reasonably" when used in relation to conduct by a lawyer denotes the conduct of a reasonably prudent and competent lawyer. RPC 1.1 as it relates to competence states "a lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation." RPC 1.4 (b) states "a lawyer shall explain the matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation."

Last, but not least, RPC 1.13 - Client Under Disability - provides that: "(a) When a client's ability to make adequately considered decisions in connection with the representation is impaired, whether because of a 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) goes on to provide that: " When the lawyer reasonably believes that the client cannot adequately act in the client's own interest, a lawyer may seek the appointment of a guardian or take other protective action with respect to a client."

In light of the foregoing and the fact that the permissive "may" is used, it is respectfully suggested that where the attorney undertook to be the agent of the client, he would violate his responsibilities not to accept a no strings attached dismissal of the charges on behalf of the client - even if the client were incapable of understanding. The reasoning behind this is that it is in the client's best interests and there can be no dispute by anyone that nothing is being given up on behalf of the client.

It is suggested that had the attorney not done so, he could very well be subject to discipline for violation of the foregoing rules.