University of Miami Law Review
Attorneys who represent possibly incompetent defendants charged with criminal conduct face difficult ethical issues, implicating professional duties of loyalty, zealous representation, and confidentiality-as an ethical question and as a matter of the law of evidence. The principles of agency underlying the attorney-client relationship are also implicated when the defendant's capacity is in doubt. In the ordinary criminal case, the client has at least implicitly authorized his lawyer's conduct. But if the defendant is impaired, the client may not have the mental capacity to authorize the attorney's actions. Defense counsel representing the possibly incompetent criminal defendant will often be the only one with relevant information about her client's incapacity. This information, related in confidence, may suggest that the client has difficulty in rationally understanding the charges against him and cannot assist his counsel. Under current rules, limited options are available to the defense attorney. She is required to alert the court to the possibility that her client is incompetent, but the attorney- client privilege, ethical rules, and the criminal defense attorney's role, as presently understood, do not allow the attorney to disclose her client's confidences. This prohibition results in trials or in guilty pleas by defendants who may not be competent to proceed, thus, violating due process. Such an outcome is contrary to the fundamental values of justice in our criminal adversary system. This Article argues that the importance of competence to the proper functioning of the adversary system requires that the criminal defense attorney be permitted to disclose client statements for the purpose of determining incompetence. Part II reviews Medina v. California, in which the Supreme Court suggested that a criminal defense attorney could testify about a client's competency at competency hearings. Part III explores the legal standard of competency, its application to the criminal defendant, and the elusiveness of the concept of rationality. Part IV examines the attorney-client relationship. Part V discusses the attorney- client privilege and the ethical rules relative to competency proceedings. Finally, Part VI argues that an exception to the attorney-client privilege and the ethical rules is warranted in order to permit the criminal defense attorney to disclose client confidences which impact the client's competence and explores the implications of this exception.
52 U. Miami L. Rev. 529 (1997-1998)