Oregon State Bar Bulletin — AUGUST/SEPTEMBER 2011


Related Sidebar Articles
Rule 1.14 Client with Diminished Capacity
Fighting to Get Off Death Row

Oregon death row inmate and convicted two-time murderer Gary Haugen just wants to be executed.

State law allows inmates like him to end their appeals and accept execution, he told The Oregonian in an interview in July. So he finds it ironic and absurd that people, including two of his court-appointed attorneys, question his mental competency to make that choice.

Needless to say, those attorneys disagree.

“The bottom line, with the criminal-justice system, is criminal practice is mental-health practice,” one of his now-former lawyers, W. Keith Goody of Washington, told The Bulletin. “If you don’t have a good foundation in mental health, you’re not doing your job as a lawyer.”

Experts on diminished capacity say that lawyers like Goody are doing the right thing when they press to have their clients evaluated. In fact, they say that lawyers should ask themselves whether their clients may have diminished capacity much more frequently than they do, given the increasing number of Middle East war veterans with diagnosed or undiagnosed brain injuries and aging baby boomers.

“Delusions and hallucinations are easy to spot,” says Alex Bassos, training director for Metropolitan Public Defender Services, Inc. (MPD) in Multnomah and Washington counties and co-author of the book Mental Health and Criminal Defense. “It’s tough to miss when someone is adamant about aliens or distracted by conversations with people who aren’t there. As a result, psychosis is likely to be identified by the defense attorney, acknowledged by the district attorney and understood by the judge.”

“But,” says Bassos, “many folks with delusions or hallucinations are still competent. So psychosis ends up being over-diagnosed in the criminal-justice system. What goes under-diagnosed are cognitive disabilities and head injuries. Traumatic brain injuries, for example, can be difficult for a lay person to identify. But if an attorney can identify the red flags, an expert can do some testing. You may find that the person is quite incapacitated.”

With older clients, “About one-half of all 90-year-olds have some degree of dementia, says Dr. Linda Ganzini, professor of psychiatry and medicine at Oregon Health & Science University whose research interests include geriatric mental health. “It really increases after age 70 and is very common in the 80s and 90s. It also increases as people develop certain kinds of illnesses, such as strokes or other neurological disease. Primary-care providers, such as doctors and nurse practitioners, miss about one-half of the cases of early dementia.”

What a Lawyer’s Duty Is
Bassos’ colleague Lane Borg, who is the executive director of MPD’s Multnomah County office, also teaches ethics at Lewis & Clark Law School.

In that class, he says, “We start with duties to clients.”

Under Oregon Rule of Professional Conduct 1.14, when a client’s capacity to make “adequately considered” decisions is diminished because the client is under-age, mentally impaired or for some other reason, the lawyer is required to maintain a normal client-lawyer relationship “as far as reasonably possible.” (See sidebar for actual text of ORPC 1.14.)

According to Oregon State Bar General Counsel Helen Hierschbiel, this means that “the lawyer owes the impaired client, just like any other client, the duty to communicate, the duty of zealous representation, the duty to preserve confidentiality and the duty of loyalty, to mention a few.”

“In the normal lawyer-client relationship,” she explains, “the lawyer acts as the client’s agent to carry out the client’s lawful wishes. The lawyer advises the client on the law, presents options and ultimately leaves the important decision-making to the client. The smooth operation of this relationship presumes the client is capable of understanding the options presented and of making important decisions. The lawyer should start with the assumption that the client is competent.”

But with some clients, more than others, the lawyer cannot rely on this presumption.

In his ethics class, Borg says, he distinguishes between various kinds of diminished capacity.

“One thing we focus on a lot is when someone has permanent or sustained diminished capacity, such as Alzheimer’s,” he says.

“The next thing is evolving limited capacity, e.g., minors. At what point, between infant and teenager, can the lawyer say, ‘I can rely on my client’s decision?’ ”

Then there’s diminished capacity caused by everything from substance abuse to undiagnosed cognitive disability.

“In my experience,” says Borg, “the most common way to identify a client as potentially having a cognitive deficiency is that he can’t read. I don’t think that in itself is the type of impairment that would be diminished capacity, but today, if a person in his 20s or 30s can’t read…”

“The more subtle client impairment issues are typically with clients who are out of custody,” Borg continues. “You have to dig for their history: past psychiatric hospitalizations, etc. HIPAA (the federal Health Insurance Accountability and Portability Act) has certainly complicated that. And there are ethical implications in going to a potentially impaired client and asking him to sign a waiver.”

In both the criminal and civil law arenas, OHSU’s Ganzini says, “Lawyers should have a high degree of suspicion as clients gets older.”

Ganzini also notes that some kinds of legal representation are more affected by diminished capacity than others.

“Look at the context in which the legal event — a change in a will or a trust — is occurring,” she suggests. “People with dementia become much more susceptible to undue influence. They may have trouble understanding the risks of certain transactions to themselves.”

What is the Required Capacity?
Context also is crucial to answering the question: What does my client need to have the capacity to do?’

For a criminal defendant (excluding the issue of whether he has a mental disease or defect that mitigates or negates his criminal culpability) the answer is: be fit to proceed.

Under ORS 161.360, a defendant may be found incapacitated before or during trial if, as a result of mental disease or defect, he is unable to understand the nature of the proceedings against him, assist and cooperate with his attorney or participate in his defense.

Inherent in these requirements is the defendant’s ability to make decisions.

“There are certain decisions that a lawyer can’t make for the client,” says MPD’s Bassos. “Whether to plead guilty, to have a jury trial, to testify, to assert a guilty-except-insane defense, to appeal.”

On the civil side, Stephen Owen, a litigator with Fitzwater Meyer in Portland, says that “the first thing I ask myself is, ‘What action am I taking on behalf of my client? What level of capacity is required?’ ”

Even within his own field, Owen notes that different levels of capacity are required for different client decisions.

“Capacity is a sliding scale,” he says, “from testamentary (e.g., making a will) to contractual.”

So, for making a will, “The statute [ORS 112.225] says that you need to be of a sound mind. The tests come from case law1: Do you know what a will does? Do you know what your will does? Do you know, generally, what you own? Do you know the natural objects of your bounty?”

Owen says that “one reason there is such a low level of capacity for making a will is it’s not an adversarial process.”

At the other end of the “sliding scale” for capacity in civil law are such things as entering into contracts and deeding over property.

“A person must possess greater competency to execute a deed than to execute a will,” the Oregon Supreme Court stated in First Christian Church v. McReynolds, 194 Or 68, 72 (1952).

A deed, it pointed out, is irrevocable; a will is not.

How to Collect Client Information
Once a lawyer understands her ethical duty to clients with diminished capacity and has identified the standard for capacity appropriate to the case at hand, she should collect information from her client.

But that, says MPD’s Bassos, requires some finesse.

“Your job as a criminal defense attorney,” he says, “is as much about being a social worker as a legal advocate.”

For example, Bassos says that “as an attorney, both in terms of exploring the person’s illness and story, you don’t want to accuse your client of being stupid. You want to do it without being insulting. Competent people make bad decisions all the time, and then rationalize them, and those explanations can be pretty bizarre. But you can’t say, ‘You know that’s crazy, right?’ So you explore the story. Anybody who’s been in practice any period of years knows of bizarre stories that turned out to be true.”

“Sometimes,” says Bassos, “clients shade stories in ways that they think will sound better but actually are worse for their defense. Explore. Drop whatever judgment you may have about the client or the client’s situation, and don’t be accusatory in even subtle ways. If you sound judgmental or accusing, you get off on a bad foot and will have a completely different relationship with the client.”

“I’ve definitely worked with attorneys who thought their clients were being jerks,” Bassos continues. “I said to the attorneys, ‘Here’re some red flags.’ After we did some investigation, we found out the clients were profoundly disabled. They were using the defense mechanism of being jerky. It pushes people away and they don’t explore. They would rather be thought of as mean or jerky than powerless or disabled.”

Bassos says the attorney also has to make sure his client understands the information the attorney is providing to the client.

“Factual understanding — the client’s ability to understand facts — plays so prominent a role that it sometimes overwhelms everything else,” says Bassos.

To make his point, Bassos recites a frequently heard courtroom exchange between a judge and a defendant.

“‘Judge: ‘Do you know who I am?’

Defendant: ‘You’re the judge; you’re in control.’

Judge: ‘Do you know who he is?’

Defendant: ‘He’s my attorney; he stands up for me.’ ”

“That’s factual understanding,” says Bassos. “That’s really different from the ability to make a decision: to hold two abstract concepts and make a choice. Some people find it very difficult to hold two abstract possibilities in their mind and choose between them: ‘If you go to trial, these kinds of things will happen but, more importantly, the result will be up in the air, and if you are convicted the judge can do whatever he wants to do within a fairly broad range.’ That’s really hard to understand because it is several abstracts down the road, versus a plea deal, where you know what kind of jail time you’ll get, and that you’ll be on probation.”

But, as elder-law litigator Owen observes, “However you explain things, no matter what your client’s capacity is, your explanation will influence his decision.”

“Is your advocacy steering the client to make a decision he is unsure of?” he asks rhetorically. “Attorneys struggle with that all the time. We’re fooling ourselves if we don’t think how we put information out there influences people. You hope that when you lay it out as neutrally as possible, the client will make the right decision. Then he doesn’t. Then you start shifting the emphasis of certain information. I think everybody does that. It’s tough dealing with clients in general: adding in diminished capacity makes it that much harder.”

Michelle R. Guyton, associate professor of psychology at Pacific University’s Hillsboro campus, says that when a lawyer is collecting client information with an eye to diminished capacity, “One good test is to give a simple set of statements and ask the person to repeat it back.”

“For example,” she says, “the lawyer could give a simple definition of possible legal outcomes, based on current charges, and see if the person could repeat it back. If he cannot, that can signal attention or memory problems.”

Guyton adds, “Another warning sign is the inability to switch topics mentally.”

“Some folks with cognitive problems will keep talking about the same thing over and over, and have real trouble moving to new things,” she says.

Finally, says Guyton, an individual with impaired cognition also may talk about things in a very vague and general way.

“He may use a lot of colloquial phrases to fill in his speech, but provide little data or substance,” she says. “His language skills likely are not impaired, so he may sound fine, but the thoughts behind what he says may be very hazy and disorganized.”

OHSU’s Ganzini stresses that with an elderly client, it is important to “Let the client fully explain.”

“Don’t finish his sentences for him,” she says. “Lawyers work hard to develop rapport with clients, but it means they end up doing all the talking. People with Alzheimer’s often have pretty good language skills, but after about five minutes, you should ask yourself, ‘Does what the client is saying completely make sense to me? Does this story make sense to me?’ ”

Ganzini says that a lawyer also should note whether his client has picked up information about what is going on in the world from outside sources.

“If he’s not getting those clues,” she says, “it’s often a sign that something’s wrong with his brain. A person who used to watch TV news or read the newspaper but no longer does may have changed his habit not because he’s not interested, but because he no longer can understand the information.”

Where to Get Help
An attorney who suspects that his client may have diminished capacity can get help from multiple sources, including the bar and mental-health professionals.

“Our office gets quite a few inquiries about dealing with clients with diminished capacity,” says General Counsel Hierschbiel, whose office fields most such calls to the bar.

“Occasionally there are questions about representing children,” she says, “but a typical call would be a lawyer who did estate planning for a now-elderly couple a number of years ago. One of the clients’ children contacts the lawyer and says, ‘We’re worried about our parents. They’re making bad financial decisions. We think they no longer are capable: what should we do?’ The question is, ‘What can the lawyer do about that?’ ”

What the lawyer would liketo do, say Hierschbiel and her bar colleague Chris Mullmann, is represent the children to petition for conservatorship and/or guardianship.

But, says Mullmann, who is in charge of the bar’s Client Assistance Office, “The lawyer has to act in his client’s best interest. Representing the client’s children is not in his client’s best interest from the client’s point of view, so someone else has to do it.”

What we tell the lawyer is, “‘Look at ORPC 1.14,’ ” says Mullmann. “Treat the client as much as possible like a regular client. Then, if the lawyer gets down the road and says, ‘My client really needs a conservator,’ someone else has to handle that.”

In addition to providing ethical guidance, the General Counsel’s Office refers lawyers to outside lawyers for practical advice.

Mullmann says that questions to the bar about diminished capacity and estate planning often come from general practitioners.

“We refer them to experts in that area at the bar’s Lawyer Referral Service or to officers of the Elder Law Section,” he says. “We aren’t allowed to refer to specific lawyers.”

Mullmann says that because of the job market, “We’re now seeing more young lawyers hanging out shingles without mentors. We encourage them to call us.”

Another practical resource is a professional who can consult with the attorney and/or evaluate the client.

“Some disabilities,” notes the MPD’s training director, Bassos, “are really hard to flesh out if you are not a professional.”

While the Oregon State Hospital’s Forensics Psychiatric Services Program provides court-ordered psychological and psychiatric evaluations, experts for evaluations that aren’t court-ordered can be obtained privately and paid with public funds — even if the lawyer is retained — if the lawyer can establish the need for the evaluation, the reasonableness of the cost and the client’s inability to pay for the evaluation himself.

Psychologist Guyton, who has a part-time practice doing lawyer consultations and criminal-defendant evaluations, says that recently she’s had more than one case where the defendant’s attorney said of his client, ‘Something’s not quite right. He can’t weigh the information to make decisions.’

“It turned out his client is mentally disabled,” she says.

Guyton says that she, Bassos and others are starting to look at ways to increase lawyers’ ability to recognize potentially incapacitated clients, including training their legal assistants.

“We want to give them the correct language to voice their concerns,” she says of legal assistants and attorneys, “rather than just ‘There’s something weird about this guy.’ ”

When Bassos would like a client to be evaluated by someone like Guyton without court order, he says he tells him, ‘We need to get an evaluation to show that you are not mentally ill. This issue may come up at trial, and we have to be prepared for it.’

“Who knows?” he says. “Maybe the client is right and he’s not ill.”

Ganzini says that if a lawyer sees potential diminished capacity in an elderly or other client, he should arrange for the client’s primary medical-care provider to test his cognition.

“Simply explain to the client that wills get challenged as people get older,” she suggests. “Ask if you can have his primary medical-care provider do a simple cognition test. The client should ask the provider, but the lawyer should follow up with the provider to see that that happened and to get the results.”

“The more cognitively impaired they are,” Ganzini warns, “the more resistant they are going to be to testing. You’ll maybe lose a client once in a while by requesting testing, but you’ll save yourself a very difficult court battle.”

Interacting With the Court
Representing a client with diminished capacity presents a criminal defense attorney with some unique challenges compared to estate-planning or other practitioners.

For example, says MPD’s Borg, a criminal defendant may come to court while under the influence of alcohol or controlled substances.

“Some judges will ask a few questions to get at whether the defendant seems to be tracking,” he says. “The dilemma for the criminal defense attorney is if he knows his client is impaired. He can’t let the proceeding go forward: if the client is high, it seems like a good deal; then later he’ll say, ‘I didn’t want to plead out.’ ”

Borg says that in such situations, “Often you’ll hear the attorney say to the court, ‘My client isn’t feeling well; can we set this over?’ ”

“But,” Borg continues, “if the judge makes an inquiry of the attorney, you can’t make something up.” Fortunately, he says, “Most experienced judges go right to the client for information. If he’s impaired, he’s taken into custody for detoxification.”

Borg says a criminal-defense attorney also may face an ethical dilemma if his client’s capacity is impaired by legal substances, such as prescribed anti-psychotics.

“I think I’m OK saying to the judge, ‘Don’t take my client into custody, he’s been seeing a psychiatrist and had a recent change in medications,’ ” says Borg, “because I’m protecting my client from being taken into custody.” (Under ORCP 1.14, if a lawyer reasonably believes that a client has diminished capacity, is therefore at risk of “substantial” physical, financial or other harm unless action is taken and cannot adequately act in his own interest, the lawyer is required to take reasonably necessary protective action and may reveal information about the client to the extent reasonably necessary to protect his interests.)

The trial court also may order a criminal defendant to undergo a “fitness to proceed” evaluation under ORS 131.360.

“‘Fitness to proceed’ is an emerging area,” says Borg, noting, “There’s been a change in terminology. In the old days it was whether you were unable to ‘aid and assist’ your lawyer. Now it’s ‘fitness to proceed’: do you understand the nature of the proceedings?’

“‘Aid and assist’ requires the lawyer to bring the issue of diminished capacity to the attention of the court,” Borg says. “In some ways, it’s easier for criminal defense lawyers than for other lawyers because they have that obligation. What they struggle with is when a client is going to drop an appeal or proceed with a guilty but insane defense. It’s within the client’s purview to make those kinds of decisions. If you simply don’t agree with the decision, but he is competent, you don’t have much of an option. But if you believe the client is incompetent, there may be ways to bring that issue to the attention of the court so the client’s competency is addressed. That’s where the client’s constitutional rights get folded into the lawyer’s ethical obligations. That’s exactly what’s happening in the Haugen (death row) case.” (See sidebar.)

Err on the Side of Caution
The bottom line, say the experts, is to err on the side of suspecting diminished capacity.

“It’s critically important that the lawyer doesn’t draw conclusions about a defendant and his mental health without doing his homework,” says one of Haugen’s former lawyers, Goody, a trial and appellate attorney with an interest in mental health issues.

“A great many people who appear to be entirely normal are profoundly ill,” says Goody. “I have repeatedly seen lawyers come in — this is the exception rather than the rule — and say, ‘He (the defendant) seems fine to me.’ Lawyers are not trained to see mental illness. I’m not saying that I see it. I just know what I don’t know.”

 

Janine Robben has been a member of the Oregon State Bar since 1980 and is a frequent contributor to the Bulletin. She is legal director of the Oregon Crime Victims Law Center. She notes that quotations from OSB general counsel Helen Hierschbiel are from Hierschbiel’s May 2004 Bulletin article, “Impaired Clients: Challenging and unique ethical considerations,” and from an interview with her for this article.

Endnotes

1. Kastner v. Husband, 231 Or 133, 135-136 (1962) 


ABOUT THE AUTHOR
Janine Robben has been a member of the Oregon State Bar since 1980 and is a frequent contributor to the Bulletin. She is legal director of the Oregon Crime Victims Law Center.

© 2011 Janine Robben


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