92-F-129 - Criminal Defendant Waiver of Rights in Appointed Case

Formal Ethics Opinion 92-F-129

Inquiry is made as to the ethical obligation of a court appointed attorney for a death sentenced person in a proceeding for post conviction relief, where the client with a history of being treated for mental illness has filed a pro se motion seeking to dismiss his petition, waive all his rights and to reinstate the execution date.

The inquiry raises a three prong inquiry (1) What is the obligation of the attorney to the court and public (2) What is an attorney's duty to his perception of his death sentenced client's best interest and (3) What is the attorney's duty to his death sentenced client when the client, who has a history of being treated for mental illness, evinces an intent to terminate his past conviction and be executed.

(1) What is the attorney's duty to the court and public? Defense counsel has an independent professional responsibility toward the court and the fair administration of justice, as well as allegiance to his client and should move for an independent evaluation whenever a good faith doubt arises as to defendant's competence to stand trial, notwithstanding defense counsel's doubts as to what is in the defendant's legal best interest. ABA Standards for Criminal Justice 7- 4.2 (2nd 1980 E 1986 Supp.). Because the trial of an incompetent defendant is necessarily invalid as a violation of due process, a defense lawyer's duty to maintain the integrity of judicial proceedings requires that the trial court be advised of the defendant's possible incompetence. The appointed counsel in the inquiry is obligated to inform the court of any good faith belief that the death sentenced client may be incompetent.

(2) What is the attorney's duty to his perception of his death sentenced client's best interest? The general rule is that in absence of the consent of his client, an attorney has no authority to institute or maintain an appeal from a judgment against the client. However, where as in this case the client has a history of being treated for mental illness and there is an issue of competence the lawyer has an additional duty. EC 7-12 states:

Any mental or physical condition of a client that renders him
incapable of making a considered judgment on his own behalf casts
additional responsibilities upon his lawyer. Where an incompetent
is acting through a guardian or other legal representative, a
lawyer must look to such representative for those decisions which are
question or of contributing to the advancement of his interests,
the lawyer should consider all circumstances then prevailing and
But obviously a lawyer cannot perform any act or make any decision
for himself if competent, or by a duly constituted
representative if legally incompetent.

Because a death sentenced person's waiver of rights invoking the post conviction process may result in execution, the attorney must ensure that that decision is a knowing and competent one. A waiver of post conviction relief must be knowing, voluntary and competent. Groseclose ex rel Harris v. Dutton 594 F.Supp. 949, 952-53 (M.D. Tenn. 1984). An attorney appointed in a death sentenced case has a duty to investigate all potential claims available for post conviction relief irrespective of a client's desires. ABA Criminal Justice Standard 4-8.5. Thus the inquiring attorney has an obligation to investigate the mental competence issue.

(3) What is the attorney's duty to his death sentenced client? The appointed counsel owes a duty to his death sentenced client to investigate whether the client's decision to waive post conviction is voluntary. A death sentenced person's knowing decision to waive the post conviction process and be executed can be invalid if it is not voluntary. Groseclose ex rel Harris 594 F.Supp. at 956-62. Counsel should look at the totality of the circumstances surrounding the decision, id. at 957. If the decision is knowing and voluntary an inquiry should be made whether the client is competent. Counsel should seek a mental health evaluation of the client to determine competency.

Any mental or physical condition of a client that renders him incapable of making a considered judgment on his own casts additional responsibility on his lawyer EC 7-12. Generally the attorney does not have authority to act without his client's consent. However, where the client's competence is questionable the attorney may act to preserve the client's rights. State v. Aumann, 265 N.W.2d 316, 318, EC 7-12.

The test for competency to stand trial is whether the defendant has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding and whether he has a rational as well as functional understanding of the proceedings against him. Thompson v. Wainswright, 787 F.2d 1477.

The inquiring attorney should conduct an independent investigation to determine if the client's decision to forego post conviction remedies and reinstate the execution date is knowing, voluntary, intelligent and competent.

This 11th day of June, 1992.


Harris A. Gilbert
Donna Simpson Massa
Barbara J. Moss