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There are, however, some clients who are not competent to make decisions affecting their own welfare; and counsel may need to take special measures in these cases. If counsel reasonably believes that mental illness or an intellectual disability has so severely “diminish[ed]” the client’s “capacity to make adequately considered decisions in connection with the representation . . . [that] a normal client-lawyer relationship with the client” cannot be maintained, and if counsel furthermore “reasonably believes” that the client “is at risk of substantial physical, financial or other harm unless action is taken and [that the client] cannot adequately act in the client’s own interest,” then counsel may take “reasonably necessary protective action, including consulting with individuals or entities that have the ability to take action to protect the client and, in appropriate cases, seeking the appointment of a guardian ad litem, conservator or guardian.” ABA MODEL RULES OF PROFESSIONAL CONDUCT, Rule 1.14(a), (b). See also Christopher Slobogin, The American Bar Association’s Criminal Justice Mental Health Standards: Revisions for the Twenty-First Century, 44 HASTINGS CONST. L. Q. 1 (2016) (explaining the implications of ABA CRIMINAL JUSTICE MENTAL HEALTH STANDARD 7-1.4 for defense attorneys); W. Bradley Wendel, Autonomy Isn’t Everything: Some Cautionary Notes on McCoy v. Louisiana, 9 ST. MARY’S J. LEGAL MALPRACTICE & ETHICS 92 (2018). Even when a mentally ill or intellectually disabled client is competent for purposes of steering his or her own course, the client’s limitations may present special difficulties for defense counsel. And whether or not a client’s impairments impact the attorney-client relationship, they may also give rise to claims and defenses that would not otherwise be available. See Slobogin, supra at 4 (“Defense attorneys may fail to adjust their style of communication to take into account impairments of their clients, . . . or may focus solely on narrow legal issues when a more holistic approach might prove both more beneficial to their clients and less likely to miss key aspects of the relevant legal or psychological problems.”). The following subsections identify the stages of a case at which a client’s mental illness or intellectual disability is likely to be relevant for one purpose or another.

First Page

486

Source Publication

Trial Manual 11 for the Defense of Criminal Cases

Source Editors/Authors

Anthony G. Amsterdam, Randy A. Hertz

Publication Date

2026

Document Type

Chapter

Edition

11

Rights & Restrictions

CC BY-NC-ND 4.0, https://creativecommons.org/licenses/by-nc-nd/4.0/

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