Practice Points
June 2007, Page 25

How to Deal With Difficult Clients From a Mental Health Perspective, edited by Elizabeth Kelley
By John Matthew Fabian

How to Deal With Difficult Clients From a Mental Health Perspective

A criminal defense lawyer has an ethical obligation to best serve the interests of his or her clients. When a client has a mental impairment, it is critical for counsel to understand the client and how the impairment affects the client’s ability to functionally participate in the legal proceedings.
This article addresses difficult clients from a psychological and psychiatric perspective. The focus is on mental health issues that may lead to conflicts in the attorney-client relationship as well as suggestions to better serve clients. This information is relevant in various legal contexts, including competency to waive Miranda rights, competency to stand trial, and issues regarding not guilty by reason of insanity pleas. Understanding a client from a mental health perspective assists in improving an attorney’s legal representation of the client.

Prevalence of Mental Disorders

Before discussing potential difficulties a defense attorney may encounter with mentally ill or personality disordered clients, it is helpful to understand the plethora of mentally ill defendants in the criminal justice system.
The U.S. Department of Justice Bureau of Justice Statistics1 has published data relevant to mental illness within the criminal justice system (see Figure 1).

Once admitted to state prisons, over 70 percent of inmates receive mental health treatment and 50 percent receive psychiatric medication.2 In addition, over 40 percent of jail inmates receive mental health treatment after admission to jail.3 Criminal defense attorneys have some doubt about the mental capacity of their clients in about 8 to 15 percent of felony cases, although forensic mental health assessments are only sought in about half of these cases.4 Attorneys doubt a client’s competence more often in felony than misdemeanor cases.5
In addition, most defendants who are ultimately found incompetent to stand trial suffer from serious psychotic disorders such as schizophrenia or the developmental disorder mental retardation. Defendants with prior hospitalizations, older offenders, minority offenders, single offenders, those with speech disorganization, delusions, hallucinations, and poor interactional behavior with their attorneys are more likely to be adjudicated not competent to stand trial.

Interestingly, some research has indicated that defendants without diagnosed mental disorders also display relatively poor comprehension concerning their understanding of elements of interrogation warnings and competence to stand trial. Often, IQ scores are among the strongest predictors of a defendant’s capacity to understand legal concepts.
When encountering a mentally ill client, there is a 50 percent chance he or she is non-compliant with medication.6 Forty to 70 percent of these individuals go undiagnosed and untreated.7 Therefore, the attorney might have to initiate a psychiatric assessment for the client while he or she is in jail. Finally, about 57 percent of all mentally ill individuals are unaware or moderately un-aware of their mental condition.8 Given this fact, many mentally ill defendants will refuse to agree to participate in or exercise legal rights relevant to examinations of their legal sanity.

Potential Difficulties

The criminal defense attorney has spent countless hours in law school, continuing education classes, courtrooms, and jails learning how to best represent clients. The criminal defense attorney often does not have extensive background and training, however, regarding how to deal with clients who have mental illnesses, psychiatric diagnoses, and other impairments. Such client difficulties are present when the following situations arise:

v Counsel has to repeatedly explain courtroom procedure to the defendant;

v Client has difficulty explaining the facts of the case;

v Client makes unrealistic requests for the attorney to file motions that lack merit (violating an attorney’s ethical obligations to not file frivolous motions);

v Counsel communicates to the judge and the prosecutor that the defendant is limited in intellectual functioning and was not the primary offender;

v Defendant is angry, distrustful, and will not cooperate with attorney requests, i.e., writes letters to the prosecutor and judge, or writes motions in which he or she makes admissions;

v Defendant is passive and not involved in decision making;

v Defendant refuses to accept the lawyer’s advice;

v Due to a fear of being labeled “crazy” or “mentally ill,” the client is hesitant to undergo a pretrial psychological evaluation;

v Defendant refuses a plea bargain or the insanity defense, which the attorney believes is in the client’s best interest; and

v Defendant exhibits radical beliefs, i.e., religious beliefs (not necessarily due to mental illness) that affect his or her legal decision making.

The difficulties in dealing with a client who has mental health issues may stem from various psychiatric or psychological elements. For example, the client might be distrustful, angry, and hostile due to life experiences, the current situation, and historical attitudes about attorneys. Feelings of anger, distrust, and hostility also might be the result of a personality disorder (often antisocial personality disorder and borderline personality disorder).

Moreover, difficulties can arise when the client is exhibiting psychiatric symptoms, i.e., delusions and disorganized thinking in which he or she is unaware and is unyielding in these beliefs despite evidence to the contrary. Also, a lawyer might face challenges when a client has a history of organic, neuropsychological, and neurological impairments, is learning disabled, or is still under the influence of substances and might be experiencing a substance-induced psychotic or mood disorder.

Is It an Attitude or an Illness?9

Even for the forensic mental health expert, sometimes it is challenging to initially distinguish whether a defendant’s behaviors and attitudes are due to his or her life experiences, character, and personality versus genuine mental illness and psychiatric disorder. In competency to stand trial evaluations, for example, not infrequently a defendant will have both personality disorder and attitude issues in addition to psychiatric symptoms. The expert is challenged and will ultimately assess whether the individual is unwilling or incapable of functionally assisting in his defense. For the attorney, this confusion can be quite frustrating when attempting to represent a client.

The Need to Gather Data

An attorney should gather as much collateral information as possible to learn more about the client. When the client’s competence or mental stability is in doubt, the attorney should attempt to gather information including social security disability records, past psychiatric records addressing inpatient treatment, and current jail medical and psychiatric records. Substance abuse assessment and treatment records are another source of information, as well as information from family members and academic records that highlight a history of learning disabilities. In addition, an attorney should consult with forensic mental health professionals to learn what assessment is required, what assessment instruments should be considered to determine competence to stand trial or waive Miranda rights, and what psychiatric medication issues are relevant.

The defense lawyer should attempt to discern the accuracy and completeness of the information conveyed by the client. If possible, it is helpful to verify details provided by the client with information supplied by a supportive family member or information gathered by the social work staff of the public defender’s office. This connection with family will assist counsel in building rapport with the client.
Further, defense counsel should monitor the stability of the client’s mental status as contacts with the client progress in jail. Importantly, the stressful jail setting may exacerbate existing symptoms or cause a predisposed mental health condition to surface. For example, incarceration may exacerbate an underlying long-term depression to the point that the client is suicidal and cannot focus on the case or participate in the defense. Critically, a defendant’s competency to stand trial is not a fixed state. Rather, it may fluctuate as a function of the course of illness, a response to treatment attempts and effects of medications, and a reaction to his or her legal situation.

Legal Strategies With the Disturbed Client

When an attorney suspects that a client is mentally ill, dependent on substances, or low functioning, the attorney should consider these deficits relevant to the legal strategy from the pretrial to presentence phases. The attorney should consider the statements the client made to police and question whether the client was competent to make these statements. When doubting a client’s competency to stand trial, function rather than diagnosis is the key issue. When an attorney suspects that a client is mentally ill and is either unable or unwilling to assist in his or her defense, a motion for a competency assessment should be made. Attorneys must document communication problems relevant to the progression of the psychiatric decompensation of clients and share this information with their experts. Additionally, they may wish to discuss with the experts the legal complexities and nuances of the case and their difficulties with their clients. This author recommends that the expert consider assessing the interaction between lawyer and client in order to examine the client’s functional legal abilities relevant to him or her assisting in the defense.
The defense attorney who inherits a mentally ill client should also consider taking the following steps:

v Refer for a competency to stand trial evaluation whenever the attorney has a “good faith doubt” about the client’s competence;

v Pursue a competency evaluation when the attorney perceives the client as being passive and uninvolved in the legal decision making process;

v Refer for competency evaluation when the client has a history of mental illness and wishes to represent himself or herself pro se;

v Pursue a competency evaluation with a delusional client who otherwise is competent to stand trial, but refuses a viable insanity defense based on his or her delusion;

v Consider a competency to stand trial evaluation when the defendant has a history of mental illness and there is a significant impairment in the interactional process between attorney and client;

v Pursue a competency evaluation when the defendant has a history of mental illness and currently refuses legal advice when it is clearly in his best interests;

v Work with an expert witness to persuade the client to consider pursuing mental illness defenses if the client is not aware of his or her mental illness; and

v Try to establish a record during the pretrial phase that the client is mentally ill; the condition (if established) might be used later as mitigation during the sentencing phase to establish a nexus with the offending behaviors.

Substituted Judgment for the Mentally Ill Client

Every lawyer is different and every client is unique. When representing a mentally ill client, should defense attorneys exercise their autonomy and substitute their judgment as a “de facto guardian?”10 According to the ALI’s Restatement (Third) of the Law Governing Lawyers, “A lawyer’s failure to follow valid client instructions in a criminal case does not necessarily constitute ineffective assistance of counsel rendering a conviction invalid.”11 The ABA’s Model Rules of Professional Conduct and Model Code of Professional Responsibility provide that in the representation of a client, a lawyer may, where permissible, exercise his or her professional judgment to waive or fail to assert a right or position of the client.12

There is a tendency for an ambiguous ethical norm related to an attorney’s obligation to facilitate client participation and an attorney’s paternalistic attitude relevant to decision making in cases involving defendants with mental health histories. Accordingly, it may be tempting for a defense lawyer to usurp a client’s authority, especially if the client is difficult to work with, mentally ill, or lacks insight into his mental illness. Circumstances such as these can detrimentally affect both the attorney-client relationship and the effectiveness of mental illness defenses. The criminal defense attorney who does encounter mentally ill clients must be mindful, however, of the U.S. Supreme Court decisions in Jones v. Barnes13 and Florida v. Nixon,14 holding that a defendant must make various legal decisions on his or her own, including whether to plead guilty, waive a jury, testify, and appeal. A lawyer is ineffective if he supplants the client’s right to decide in these areas.
For purposes of this article, there is no ethical quandary, however, concerning the duty of criminal defense attorneys to best serve the interests of their clients. Therefore, it is imperative for these professionals to attempt to understand not only the legal situations of their clients, but also their inherent mental deficiencies.

Notes

1. U.S. Department of Justice, Bureau of Justice Statistics, available at http://www. ojp.usdoj.gov/bjs/pub/press/mhppjipr.htm.
2. Paula M. Ditton, Mental Health and Treatment of Inmates and Probationers, U.S. Department of Justice, Office of Justice Programs (1999).
3. Id.
4. Norman Poythress et al., Attorney-Client Decision Making in Criminal Cases: Findings From Three Studies, 18 Law & Human Behav. 437 (1994); Steven K. Hoge et al., Attorney-Client Decision Making in Criminal Cases: Client Competence and Participation as Perceived by Their Attorneys, 10 Behav. Sci. & L. 385 (1992).
5. Id.
6. Xavier Amador, Recognizing and Explaining Mental Illness, Address at Making the Case for Life IX (September 2006), seminar sponsored by NACDL.
7. Id.
8. Id; see Insight and Psychosis (X. Amador & A. David eds., 1998).
9. See Figure 2.
10. Model Code of Prof’l Responsibility EC 7-12 (1978); see Rule 1.14, Model Rules of Prof’l Conduct.
11. Restatement (Third) of the Law Governing Lawyers § 32 (proposed Final Draft No. 1, Mar. 29, 1996).
12. Model Code of Prof’l Responsibility Dr 7-101(b)(1).
13. Jones v. Barnes, 463 U.S. 745 (1983).
14. Florida v. Nixon, 543 U.S. 175 (2004).


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