CBA Record

ETHICS EXTRA

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BY MICHAEL P. SANDUSKY

A Case of First Impression Regarding an Incompetent Client

I n People v. Holt, the Illinois appellate court for the second district decided a case of first impression regarding how a lawyer should treat a client’s refusal to accept her incompetence to stand trial. 998 N.E.2d 933 (2013). Lawyer and client typically work together to achieve the client’s goals. While the client typically decides the strategy and the lawyer the tactics, on occasion they differ so greatly as to how to proceed that the relationship is ruptured. On rare occasions, the lawyer’s failure to heed the client’s wishes regarding tactics may result in a violation of the rules of professional conduct. What happens in Illinois when an incompetent client charges her lawyer with ineffective assistance of counsel when the client herself is found unfit to stand trial? Holt addresses that issue. In Holt, the defendant was charged with criminal trespass to a residence. During that proceeding, the State “advised the trial court that there was a bona fide doubt as to Holt’s fitness to stand trial.” When a bona fide issue of a defendant’s ability to stand trial is raised, the State has the burden to prove that no such issue exists. Here, the State conceded that it could not meet its burden, and a directed verdict was grant in favor of defendant. The court concluded that, with proper care, Holt was likely to attain fitness within one year Mike Sandusky is a Morrissey Scholar at the John Marshall LawSchool, with an anticipated JD in January 2016

Illinois court in Holt held that a lawyer has not rendered ineffective assistance of counsel when a mentally unfit defendant/ client demands that the defendant/client not be declared unfit to stand trial. The court stated that if a lawyer has a bona fide reason to believe that the client is mentally unfit to stand trial, the lawyer must act diligently to see that the court decides whether the client is incompetent. A client who is unfit to stand trial cannot make a competent decision as to what is in her best interest. In such a situation, if the lawyer follows the client’s erroneous demand to stand trial, the lawyer commits error that is prejudicial to the client. The court thus concluded that the assistance provided by counsel in Holt was effective and that law- yers facing similar dilemmas in the future should act accordingly. The CBA’s LawPracticeManagement &Technol- ogy Division regularly sponsors demonstrations of hardware and software geared to legal professionals. In an hour or less, you will learn how to use common technologies to be more productive, efficient, and tech savvy! Live demos are held in-person at the CBA or join us virtually from your desktop (see upcoming live sessions at www.chicagobar.org/cle). Com- plimentary for CBAmembers. $50 Nonmember. No MCLE Credit. Law student members and associate members are welcome. More than 70 titles are available now. See our video on demand library at www.chicagobar.org/HowTo.

and remanded her to the Department of Human Services for in-patient mental health treatment. Holt appealed from the court’s finding that she was unfit to stand trial. She alleged that her lawyer did not comply with her demands, did not present an argument as her advocate, and therefore failed to provide effective assistance of counsel for failing to argue she was competent. The Department of Human Services determined Holt to be mentally fit to stand trial between the time of the lower court’s finding and the appeal, which thus became moot. Nonetheless, the appellate court proceeded with the appeal because of the stigma attached to being unfit to stand trial because of mental illness. The appellate court held that the public defender had provided Holt with effective assistance. The appellate court then addressed whether a lawyer is bound by a client’s demand that the client is fit to stand trial despite evidence to the contrary. The court held that an attorney is not bound to abide by the client’s demand in such a situa- tion. The Illinois appellate court followed the rationale of the California Court of Appeals in People v. Bolden, 99 Cal. App. 375 (Cal. Ct. App. 1979). In Bolden, the court articulated that “When the attorney doubts the present sanity of his client, he may assume his client cannot act in his own best interest, and [the lawyer] may act even contrary to the express desires of his client.” The Bolden court held that to do otherwise would lead to a violation of the defendant’s right to due process (which prohibits conviction of persons who are adjudicated unfit to stand trial). In accord with the California court in Bolden , the

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