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Lawyer Must Follow Impaired Client’s Wishes In Most Cases

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Lawyers who represent mentally impaired clients often wonder: is the lawyer’s duty to advocate the client’s wishes, no matter how peculiar, or to act in the client’s best interests? That was the dilemma facing New Hampshire attorney Tony Soltani after his client was committed to a mental hospital.

Richard A. (his full name is withheld in the official court proceedings) was the subject of a commitment proceeding. Evidence at his trial indicated that he was severely psychotic. He believed that the FBI had implanted monitors and transmitters in his body, and he threatened to swallow coins in order to force medical personnel to x-ray him—which he hoped would reveal the implants. More distressingly, he barricaded himself in a room with a hatchet and refused treatment.

Richard A. was represented by a court-appointed attorney. The attorney made his best arguments, but the evidence was strong and the trial judge committed Richard A. to the New Hampshire Hospital for up to one year of treatment. Richard A. instructed his lawyer to appeal.

The lawyer’s dilemma was immediately clear. In his view there was no basis for an appeal, and lawyers’ ethical rules prohibit filing frivolous actions. The lawyer could not follow both his client’s wishes and the rules governing the profession.

A similar problem often arises in criminal cases when a defendant has been convicted and insists on an appeal. In a 1967 case arising in California the U.S. Supreme Court decided that the defendant’s right to an appeal was more important than the lawyer’s ethical limitations, and authorized the filing of a so-called “Anders” brief—in which the lawyer lists all the possible arguments the defendant might have made without arguing that the appeal should be granted. Richard A.’s attorney suggested that maybe he should be directed to take a similar approach.

The New Hampshire Supreme Court decided that Richard A.’s attorney must first try to dissuade him from appealing his commitment. If that is unsuccessful, however, the lawyer is permitted to file an appeal without arguing for reversal, similar to the criminal rules governing Anders briefs. The Court noted that it might summarily dismiss any appeal if it decided the appeal lacked merit. In re Richard A., April 18, 2001.

The case of Richard A. points to ethical problems faced by lawyers for the mentally impaired every day. It can be difficult to balance the client’s wishes with his or her legal interests, and following instructions can sometimes be harmful to the client. Generally speaking, the lawyer’s duty is to represent the client’s wishes. The lawyer’s job can be challenging in such a case; Richard A.’s case at least recognizes that challenge, even if does not resolve it.

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Robert B. Fleming


Robert Fleming is a Fellow of both the American College of Trust and Estate Counsel and the National Academy of Elder Law Attorneys. He has been certified as a Specialist in Estate and Trust Law by the State Bar of Arizona‘s Board of Legal Specialization, and he is also a Certified Elder Law Attorney by the National Elder Law Foundation. Robert has a long history of involvement in local, state and national organizations. He is most proud of his instrumental involvement in the Special Needs Alliance, the premier national organization for lawyers dealing with special needs trusts and planning.

Robert has two adult children, two young grandchildren and a wife of over fifty years. He is devoted to all of them. He is also very fond of Rosalind Franklin (his office companion corgi), and his homebound cat Muninn. He just likes people, their pets and their stories.

Elizabeth N.R. Friman


Elizabeth Noble Rollings Friman is a principal and licensed fiduciary at Fleming & Curti, PLC. Elizabeth enjoys estate planning and helping families navigate trust and probate administrations. She is passionate about the fiduciary work that she performs as a trustee, personal representative, guardian, and conservator. Elizabeth works with CPAs, financial professionals, case managers, and medical providers to tailor solutions to complex family challenges. Elizabeth is often called upon to serve as a neutral party so that families can avoid protracted legal conflict. Elizabeth relies on the expertise of her team at Fleming & Curti, and as the Firm approaches its third decade, she is proud of the culture of care and consideration that the Firm embodies. Finding workable solutions to sensitive and complex family challenges is something that Elizabeth and the Fleming & Curti team do well.

Amy F. Matheson


Amy Farrell Matheson has worked as an attorney at Fleming & Curti since 2006. A member of the Southern Arizona Estate Planning Council, she is primarily responsible for estate planning and probate matters.

Amy graduated from Wellesley College with a double major in political science and English. She is an honors graduate of Suffolk University Law School and has been admitted to practice in Arizona, Massachusetts, New York, and the District of Columbia.

Prior to joining Fleming & Curti, Amy worked for American Public Television in Boston, and with the international trade group at White & Case, LLP, in Washington, D.C.

Amy’s husband, Tom, is an astronomer at NOIRLab and the Head of Time Domain Services, whose main project is ANTARES. Sadly, this does not involve actual time travel. Amy’s twin daughters are high school students; Finn, her Irish Red and White Setter, remains a puppy at heart.

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Matthew M. Mansour


Matthew is a law clerk who recently earned his law degree from the University of Arizona James E. Rogers College of Law. His undergraduate degree is in psychology from the University of California, Santa Barbara. Matthew has had a passion for advocacy in the Tucson community since his time as a law student representative in the Workers’ Rights Clinic. He also has worked in both the Pima County Attorney’s Office and the Pima County Public Defender’s Office. He enjoys playing basketball, caring for his cat, and listening to audiobooks narrated by the authors.