AuthorNaomi M. Weinstein
Naomi M. Weinstein
In his seminal book Professional Responsibility in Criminal Defense Practice,
John Wesley Hall cites his mother’s advice: “If in doubt, don’t.” When rep-
resenting people with mental disabilities, this is particularly difficult because
often, any option has drawbacks. In this chapter, Naomi Weinstein discusses
the American Bar Association Model Rules of Professional Conduct as they
pertain to representing people with mental disabilities, and suggests ways of
balancing seemingly competing provisions. She also discusses the recently
amended ABA Mental Health Standards. Solutions to ethical dilemmas are
not clear-cut, and applying words on a page to real world circumstances
is not always easy, particularly when the criminal justice system does not
understand your client, when your client is difficult to deal with, and the
proper support services are not available in order to help him or her and to
keep the community safe.
• • •
Criminal defense lawyers have primary a duty to protect their clients’
rights, represent their wishes, and respect client autonomy. However, law-
yers also have a duty of candor toward the court and the law prohibits
incompetent defendants from being prosecuted. Merely having a mental
disability diagnosis, does not mean the client is incapacitated and cannot
make decisions regarding his or her own defense. Yet there are situations
that attorneys may face when representing someone with mental disabil-
ity where the ethical choice is not always clear. Some of the pivotal eth-
ical questions are whether to raise the issue of competency over a client’s
316 Representing People with Mental Disabilities
objection, how to maintain a normal attorney-client relationship when a
client’s mental disability may be interfering with effective representation,
when to consult other parties involved in the client’s life, how to distin-
guish between a client’s poor judgment verses incapacity due to a mental
disability, and when to take protective action. Representing this popula-
tion requires a balancing act between preserving client autonomy within
the ethical bounds of the law.
The following scenarios, based on a compilation of actual cases, illus-
trate some of the complex ethical issues that may arise when representing
a criminal defendant with mental disability. These scenarios should be
kept in mind throughout this chapter.
Scenario 1: You represent Roslyn who is facing a felony assault charge.
She attacked a postal worker because she believes there is a conspiracy
involving the post office stealing her letters from the president. Roslyn
has no psychiatric history. However, Roslyn has a very involved family
who has tried to get her hospitalized in the past. Roslyn does not want
you talking to any of her family. Roslyn has a basic understanding of the
court process, but is insisting that she is innocent because she was merely
defending her rights when she assaulted the postal worker. She insists on
going to trial, and if convicted faces a prison term of seven years. She is
also insisting that you subpoena the president and various members of the
postal service who have nothing to do with the assault. Do you raise the
issue of competency? Do you contact her family? What happens if Roslyn
tries to fire you for refusing to subpoena the president and other postal
workers? Do you seek to be recused? What if the court refuses to let you
recuse yourself? (See Chapter 1, “Competency to Stand Trial.”)
Scenario 2: You represent Apollo who is facing a misdemeanor charge
for assault. The offense occurred while Apollo was receiving treatment in
a psychiatric hospital, where he hit a staff member while being restrained.
At the time of the assault, Apollo was not taking his medication. When
you first met him, he was taking his medication and doing much better.
He told you he wants to face his charges said he would rather stay in
prison than go back to the hospital. He faces up to a year of imprisonment.
Since that time, he stopped taking his medication. He is still insisting that
he would rather stay in prison than go back to the hospital. If you raise the
issue of competency, although his criminal charges will be dismissed, he
could face indefinite commitment at a psychiatric hospital. The client has
already spent half a year in prison waiting for trial and will likely get time

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