Fordham Law Review
This Article has argued that the defense attorney has a multifaceted fiduciary duty toward the client with mental disability. That duty requires, first and foremost, respect for the autonomy of the client. The lawyer shows that respect not only by heeding the wishes of the competent client but by refusing to heed the wishes of the incompetent client. A coherent approach to the competency construct is therefore important. Following the lead of Professor Bonnie, this Article has broken competency into two components: assistance competency and decisional competency. It has defined the former concept in traditional terms, as an understanding of the criminal process and an ability to communicate relevant information, while arguing that the latter concept should be defined in terms of basic rationality and self-regard. If the defense lawyer's fiduciary duty to respect client autonomy is assumed, it' follows that the lawyer with a mentally ill client must assess the client's competency in both the assistance and decisional senses. Furthermore, if the client appears to be incompetent in either sense, the lawyer must assure that attempts are made to restore competence; if doing so requires alerting the court to the defendant's mental problems, that step must be taken. If, on the other hand, the client is competent, the attorney should generally accede to his or her wishes, at least with respect to pleading guilty, assertion of mental state defenses, and waiving the right to counsel. Occasionally, however, the lawyer's fiduciary duty to the client merges with society's interest in assuring a reliable and dignified process; in the extremely rare instances when these interests are compelling (for example, it is clear that the client who wants to plead guilty is factually innocent, or the trial of the client will make a complete mockery of the system and of the defendant), the attorney is ethically obligated to override the competent client's wishes. Furthermore, the lawyer should act as a surrogate decisionmaker when a defendant is competent in the assistance sense but unrestorably incompetent in the decisional sense.
Christopher Slobogin and Amy Mashburn,
The Criminal Defense Lawyer's Fiduciary Duty to Clients With Mental Disability, 68 Fordham Law Review. 1581
Available at: https://scholarship.law.vanderbilt.edu/faculty-publications/281