Competent but compromised: Representing clients on the spectrum between mental health and mental illness

The first time I tried to write this article, the deadline was March 2020. A year later, it’s probably fair to say that we all have a better understanding of what it’s like to feel your personal security and emotional well-being under siege on a continuing basis. In 2020 our society experienced a collective foreboding the likes of which we hadn’t felt in years—generations, really. We experienced, in other words, something that people with anxiety disorders experience on a daily basis. As one writer noted in the magazine Psychology Today, “For billions out there now, panic is novel, new: like some strange toy as yet unfondled that spits tacks. To us, the chronically afraid, this is just one more terror, teetering contagiously atop the rest.”¹

In early September 2001, I was a new sales manager at a luxury hotel in St. Louis. Working in flyover country when all flights were grounded on 9/11 meant lost business and lost jobs—including mine. I remember the crushing loss, the economic burden, and the uncertainty I felt not only personally, but as a sheltered American kid whose country had not been attacked on its own soil since 1814. That experience led to my finally being diagnosed with generalized anxiety disorder and major depression. I say “finally” because I am certain I suffered with anxiety and depression beginning in junior high, and only marginally functioned without the aid of my serotonin until I was over 30. 

I tell you this not to garner sympathy or to make myself sound brave, but because I can assure you I am not the only attorney with the same or similar diagnosis. And I say with all certainty, if you haven’t already, you will have a client similarly situated. 

We are everywhere 

According to the National Surveys on Drug Use and Health 2014 to 2015 report, almost 19 percent of Minnesotans age 18 and over met the criteria for a mental illness in the prior year.² An estimated 17.3 million adults in the United States (about 7.1 percent) had at least one major depressive episode.³ Harvard Medical School estimates that over 30 percent of U.S. adults experience an anxiety disorder at some time in their lives.⁴ When juxtaposed with the number of Minnesotans involved in some kind of litigation (1,230,516 new cases filed in 2018),⁵  mental illness and lawyering are bound to cross paths. And all that data is pre-pandemic.

Mental illness can be genetic, created by a chemical imbalance in the brain, or caused by environmental exposures to substances or experiences.⁶ Trauma, quantified by the CDC in its Adverse Childhood Experiences (ACEs) study, is directly linked to not only mental disorders, but also to physical illnesses such as heart disease, diabetes, and cancer.⁷

This is not to say that every actionable issue has a mental health element. Sometimes a contract is just a contract. But just as dissolution clients are screened for domestic violence, it is prudent to screen all clients for mental health issues that might go beyond personality traits or mere quirks. Knowing what to look for and how to respond can save your relationship with your client.

Points along a spectrum

Mental health and mental illness are not binary states. They represent more of a continuum, a bell curve, a spectrum—and we are all on it.

At one end of that spectrum, Minn. Stat. §524.5-102, Subd. 6 defines an “incapacitated person” as one who “is impaired to the extent of lacking sufficient understanding or capacity to make or communicate responsible personal decisions, and who has demonstrated deficits in behavior which evidence an inability to meet personal needs for medical care, nutrition, clothing, shelter, or safety, even with appropriate technological assistance.” Effectively, an incapacitated person is one who requires commitment due to severe mental illness or chemical dependence, or guardianship and possibly conservatorship due to a mental or cognitive impairment.

Most attorneys understand the challenges and ethical obligations involved in representing clients with diminished capacity. Rule 1.14 of the Model and Minnesota Rules of Professional Conduct is quite clear. We are, in a nutshell, to maintain a normal relationship as far as possible; adequately act in the client’s interest; take protective action; seek appointment of a guardian ad litem, conservator or guardian; and protect the client’s interests. 

The gray area lies where a client does not meet the definition of diminished capacity, but has diagnosed or undiagnosed mental health struggles that affect their daily life and, more pertinently, their legal matters. In my own experience, representing an incapacitated person is much easier than working with a client who is capable of making their own decisions—yet whose judgment has struck me as faulty. Rule 1.14 addresses communicating ethically. Working with a competent but compromised client, on the other hand, requires communicating with empathy. 

The mental health/illness spectrum includes a plethora of diagnosed and undiagnosed conditions.⁸ Our clients may experience everything from depression and anxiety to bipolar disorder, psychoses, or sociopathic behavior. They may be on the autism spectrum, have a sensory processing disorder, or be otherwise neurodiverse. I can’t help thinking of the exchange between Lucy Van Pelt and Charlie Brown when she offers up a litany of phobias, eventually “diagnosing” Charlie Brown with pantaphobia—the fear of everything.

The sorts of conditions that compromise mental health but do not amount to diminished capacity can be so nebulous, the National Institute for Mental Health (NIMH) has a general web page named simply “Any Anxiety Disorder.”⁹ While it is definitely not in the scope of our professional expertise as attorneys and counselors to diagnose such conditions, identifying and accommodating a client’s mental status is in our own best interest. (See the wellness sidebar for information about the impact on you.) As Vivianne Mbaku of the National Center on Law & Elder Rights has written, “Trauma-informed lawyering leads to better communication between the lawyer and client, discovery of additional legal issues, and better referrals.”¹⁰ 

High-incidence practice areas

Beyond civil commitment and guardianship cases, a number of other areas of law include a high incidence of clients with mental illnesses of varying severity.

• Criminal. More and more, courts are recognizing mental health as a critical part of corrections.¹¹ A pre-sentencing investigation is essentially a mental health diagnostic assessment. Whether our jails and prisons should offer greater access to mental health diagnosis and treatment is a subject for a whole other article, but suffice it to say that if a person enters incarceration with no mental health issues, they likely leave with some.¹² Prosecutors and defense attorneys alike must be aware of a defendant’s mental state—both at the time of the alleged crime and also in the years, months, days, and minutes leading up to it. While not an affirmative defense, a person’s long-term mental illness can help fact-finders understand a defendant’s motivations and can be used to mitigate plea bargaining, sentencing, and probation.¹³

• Juvenile. The juvenile statutes (Minn. Stat. §260 and its progeny) encompass child protection, delinquency, truancy, reporting of maltreatment of minors, and the lesser-known voluntary foster care for treatment. Each of these areas has a mental health component and the statutes and corresponding rules are written in such a way that social services, parent attorneys, and the courts can and frequently do recommend or order mental health and chemical use assessments. A typical CHIPS case will result in diagnostic assessments of both parents (and sometimes the children), a chemical use assessment of both parents, and potentially a domestic violence assessment or parental capacity assessment. 

It has also been my experience that truancy and delinquency are rooted in mental illness. More often than not, a mental health issue is keeping a kid from wanting to be in school, or keeping a parent from getting them there. I have seen a child as young as 11 placed in-patient due to the intensity of his trauma. I’ve seen a child of four diagnosed with an attachment disorder caused primarily by her mother’s untreated mental health issues. You can avoid this practice area, but the kids involved may grow up to be your future clients.

•  Family. If any area of the law uses claims of mental illness as a weapon, it is family law. Soon-to-be-former partners and co-parents frequently accuse each other of having some sort of mental illness. Because Minnesota is a no-fault state for dissolution, it takes the wind out of some clients’ sails to learn the other party’s diagnosis doesn’t equate to default judgment in their favor. As regards the minor children, however, domestic violence and certain criminal convictions can preclude a parent from sharing legal custody or having a parenting plan.¹⁴ If a parenting consultant or guardian ad litem is appointed, mental health assessments will likely be ordered. Even when parents are able to mediate and use a tool such as child-inclusive mediation, the mediator who gathers the child’s input may be a trained social worker or licensed therapist.

Other areas of the law may not seem as rife with the potential for mental illness, but bankruptcy, to take one example, involves ample potential for stress, shame, and broken relationships; elder law often confronts the varied symptoms that accompany the onset of dementia; military and veterans’ law regularly runs up against the hard fact of PTSD; wills and trusts law frequently encounters pathological dynamics between family members.¹⁵ A client’s mental health can impact any kind of legal matter; learning to screen for signs of trouble—and doing so early in the client relationship—is eminently useful.

Screening for potential mental illness

Screening for mental illness need not involve a detailed or invasive process. Paying attention to your own judgment and common sense about what is “normal” is invaluable. Generally speaking, here are some things to look for in conversations with your client or potential client.

• Speech or thought patterns, such as circular or tangential thought. If a person just cannot get to the point or doesn’t seem to really hear or understand what you are explaining to them, you should take note. These traits may reflect a high level of anxiety, the influence of a controlled substance, or even schizophrenia.
• Fixation on certain facts. Recounting events repeatedly—especially with certainty that if the court knew the information, it would transform the case—can indicate delusions, paranoia, or phobias.
• Irrational fears or misperceptions. A client may have visual or auditory hallucinations and send recordings or screenshots to you as “proof” of their delusions. They may insist an opposing party is “obsessed” with them or making “violent” statements that, when read objectively, are harmless. These traits may be further indicative of psychosis. 
• Lack of insight into their own actions or behaviors. A person may rationalize inappropriate responses to family or professional issues, or to current events. They may exhibit inappropriate or discordant reactions or emotions, such as hostility, anger, excitement, severe anxiety, suggestibility, belligerence, isolation, or lack of inhibition. They may be easily distracted or may substitute inappropriate words for other words. People with borderline personality disorder exhibit many of these traits.
• Mental or behavioral health lexicon. A client who has been treated or hospitalized for mental illness may discuss specific medications, their case worker, treatment modalities, or other terms specific to mental health treatment. 
• Physical symptoms. Your client might describe physical issues that may be caused by mental illness, including insomnia, hypersomnia, headaches, or nausea. You may observe bandages or scarring from self-mutilation.

Some of these behaviors or characteristics can be the result of traumatic brain injuries, learning or developmental disabilities, side effects of certain medications, or substance abuse. Distinguishing between these other issues and mental illness is best left to medical or mental health professionals. Encouraging a client to seek out an actual diagnostic assessment may be a delicate but necessary conversation, especially if the behaviors could affect the outcome of their case.¹⁶

Your role: What does it mean to be a counselor-at-law?

In the comments to MRPC 2.1 at number 4, the rules state, “Matters that go beyond strictly legal questions may also be in the domain of another profession. Family matters can involve problems within the professional competence of psychiatry, clinical psychology, or social work; business matters can involve problems within the competence of the accounting profession or of financial specialists. Where consultation with a professional in another field is itself something a competent lawyer would recommend, the lawyer should make such a recommendation.” You may be one professional among many dealing with the needs of your client; yet you also may be the one professional called upon to synthesize multiple opinions into a coherent solution. As the comments on MRPC 2.1 go on to note, “…a lawyer’s advice at its best often consists of recommending a course of action in the face of conflicting recommendations of experts.”

Here are five things you can do when you suspect your client is struggling with mental illness:¹⁷

1. Recognize that intellectual or developmental disabilities are not the same as mental illness. Though they may cause some of the same impacts on a client’s case, the statutes treat them differently and they must be handled differently. If you are communicating a legal concept or strategy and your client is struggling to understand, it may not be related to mental health. You may need to take the time to better “translate” from legalese to layperson.

2. Check any preconceived notions at the door. The stigma surrounding mental illness and neurodiversity contributes significantly to many people going undiagnosed and untreated. Many people have a pervasive fear that being diagnosed with a mental health disorder and taking medication will jeopardize the outcome of their legal matter. Quite the opposite. From working in high-incidence areas of law and from my own life experience, I can attest that seeking treatment and complying with a medication regimen is far healthier than denial. Encourage your client to get the help they need.

3.  Set them up for success. In criminal and juvenile law, there is an ongoing concern about recidivism. Taking the opportunity to get a client into drug court—or treatment or counseling during probation—may be the thing that keeps them from reoffending. Civil matters have a similar revolving door. You can identify whether your client’s mental illness contributed to their legal matter or adversely affected it and help them correct their path to avoid future issues. You can also approach settlement and craft stipulations and proposed orders to ensure that your client can follow through—that is, you may need to help them lower the bar for themselves. 

4. Remember whose side you’re on. You have an ethical and professional obligation to represent your client. That may include advising them to seek help for mental or behavioral issues. It may include bringing specific motions or approaching settlement creatively if their mental health has already adversely affected their case. Some people with mental illness are very difficult to work with and can be wearing on your patience and your own sanity. If you reach a point where you can no longer zealously advocate, you may need to withdraw.

5. Be on the lookout for incapacity. If your screening indicates that your client has mental health issues, be mindful that if those issues cross the line to incapacity or incompetence, you have an ethical obligation to act. Revisit Rule 1.14. Maintain a normal relationship as much as possible, but, if necessary to protect your client’s interests, take protective action. It is not an easy decision to make, but you may need to request appointment of a guardian ad litem, conservator, or guardian for your own client.

Understanding a client’s mental health is not just a tool to improve client relations or ferret out additional legal issues. We have an ethical and professional obligation to represent the whole client by “render[ing] candid advice.” We are empowered to comment on “moral, economic, social, and political factors that may be relevant to the client’s situation.” (MRPC 2.1) We owe it to our clients to understand the totality of their circumstances, and if those circumstances include mental illness, to factor it into our counsel.