ETHICS OPINION 657-1994

NUMBER 657 JUNE 28, 1944

Question. The inquiring attorney has a client who is not of the soundest mind. About two years ago, she was confined to a sanitarium for one month; the Children’s Court has deprived her of the custody of her child; and in a proceeding before the Surrogate, he appointed a special guardian, as he may do where a party “is mentally incapable adequately to protect his rights, although not judicially declared to be incompetent to manage his affairs” (Surrogate’s Court Act, Section 64). Nevertheless, the attorney considers that in ordinary matters the client is competent and able to protect her interests, although inclined to be “persnickety.”

The client now wishes the attorney to handle certain matters; in some, the attorney considers the client’s position meritorious, in others, dubious.

The attorney asks whether he may properly represent the client in the proposed proceedings; whether he may properly arrange for a fee commensurate with the work, also whether we have any suggestions to guide him in his professional relationship with this client.

Answer. This Committee cannot pass upon the questions of law and fact involved in determining whether the client is competent to contract with the attorney. But if the attorney honestly believes that the client is competent, and if he is prepared to accept the risk that a Court might hold otherwise, we are of opinion that the attorney may accept employment in matters where the attorney honestly believes the client’s position is meritorious. Obviously, in dealing with such a client, the attorney owes a special duty not to overreach the client. The attorney must not, because of the client’s insistence, undertake any litigation or defense that he considers unjustifiable (Canons 30 and 31). In case of doubt, the attorney “must obey his own conscience and not that of his client” (Canon 15). These, we think, are the principles which must guide the inquiring attorney.