It is not uncommon for a divorce lawyer to come to the conclusion that their opposing counsel and the adverse party are correct when they say “your client is crazy.”
What obligation, if any, does an Illinois divorce lawyer have when they suspect that their client is suffering from a severe mental illness or incapacity?
Illinois Divorce Lawyers Must Follow The Rules Of Professional Conduct
Illinois divorce lawyers must be thoroughly familiar with The Rules Of Professional Conduct. Those rules govern our duty to out clients.
The “Code of Professional Conduct, part of our Supreme Court Rules, have the force of law and embody the public policy of our state.” In re Marriage of Newton, 2011 IL App (1st) 090683, ¶ 40
Illinois divorce lawyers are supposed to treat their clients normally as much as possible under the circumstances.
“When a client’s capacity to make adequately considered decisions in connection with a representation is diminished, whether because of minority, mental impairment or for some other reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client.” Ill. Sup. Ct. R. 1.14(a)
If the Illinois divorce lawyer has a reasonable belief that the client cannot make their own decisions. The lawyer may take steps to investigate and possibly appoint a guardian ad litem for their mentally incapacitated client. Note that Rule 1.14(b) says “may”. An Illinois divorce lawyer is not under an obligation to take any further steps to address the client’s mental condition.
“When the lawyer reasonably believes that the client has diminished capacity, is at risk of substantial physical, financial or other harm unless action is taken and cannot adequately act in the client’s own interest, the lawyer 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.” Ill. Sup. Ct. R. 1.14(b)
If the Illinois divorce lawyer does wish to address their client’s mental incapacity, the lawyer must balance the client’s mental issues with the consequences of those mental issues. Just because someone has a mental issue does not mean their divorce will necessarily have a different result.
“In determining the extent of the client’s diminished capacity, the lawyer should consider and balance such factors as: the client’s ability to articulate reasoning leading to a decision, variability of state of mind and ability to appreciate consequences of a decision; the substantive fairness of a decision; and the consistency of a decision with the known long-term commitments and values of the client. In appropriate circumstances, the lawyer may seek guidance from an appropriate diagnostician.” Ill. Sup. Ct. R. 1.14 cmt 6
Illinois Divorce Lawyers Should Treat Their Clients As Having Their Full Mental Faculties Or They Should Withdraw
Until someone definitively proves that the client is not able to make decisions, the Illinois divorce lawyer must abide by that client’s instructions (to an extent).
“The law presumes every man to be sane and of sound mind until the contrary is proved” Morecraft v. Felgenhauer, 346 Ill. 415, 420 (Ill. 1931)
More likely, the Illinois divorce lawyer will not play psychologist/psychiatrist and will merely withdraw for one of a myriad of reasons as allowed by the Illinois Rules of Professional Conduct.
“[A] lawyer may withdraw from representing a client if:(1) withdrawal can be accomplished without material adverse effect on the interests of the client;(2) the client persists in a course of action involving the lawyer’s services that the lawyer reasonably believes is criminal or fraudulent;(3) the client has used the lawyer’s services to perpetrate a crime or fraud;(4) the client insists upon taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement;(5) the client fails substantially to fulfill an obligation to the lawyer regarding the lawyer’s services and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled;(6) the representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client; or(7) other good cause for withdrawal exists.” Ill. Sup. Ct. R. 1.16(b)
Mentally Incapacitated Divorce Clients Almost Always Get The Help That They Need
Once the withdrawal of representation is complete, the mentally incapacitated client is not like not just continue the same shenanigans with news counsel. The opposing counsel or the court itself is likely to ask for a mental examination of that party.
“In any action in which the physical or mental condition of a party or of a person in the party’s custody or legal control is in controversy, the court, upon notice and on motion made within a reasonable time before the trial, may order such party to submit to a physical or mental examination by a licensed professional in a discipline related to the physical or mental condition which is involved.” Ill. Sup. Ct. R. 215
The court is then within its rights to appoint a Guardian Ad Litem to represent the mentally incapacitated party in a guardianship capacity. In re Marriage of Tener, No. 1-22-0890, 3 (Ill. App. Ct. 2024)
Liability Of A Divorce Lawyer When Representing A Mentally Ill Client
I very much doubt that a former client could sue an Illinois divorce attorney for representing them in their diminished capacity.
“To state a claim for legal malpractice, a plaintiff must plead and prove that the defendant attorneys owed the plaintiff a duty of due care arising from the attorney-client relationship, that the defendants breached that duty, and that as a proximate result, the plaintiff suffered injury.” In re Estate of Powell, 2014 IL 115997
Only one non-binding Rule 23 case has found that a lawyer had breached their duty of care by not informing a probate court of their client’s diminished capacity. Estate of Christo v. Law Offices of Thomas Leahy, 2021 IL App (1st) 200575-U
In an Illinois divorce court, there is no duty to inform a court of a client’s diminished capacity. In fact, disclosing a client’s mental capacity would be a gross violation of attorney-client confidentiality. Anyways, impactful mental illness and incapacity is something that a person is rarely able to keep secret themselves.
For a former client to state after the case is over “you should have known I was too crazy to sign anything” rings very hollow to me.
If only a crazy person would have signed a particular final agreement, the final agreement is presumptively unconscionable and can be vacated as such.
“A settlement agreement can be set aside if it is shown that the agreement was procured through coercion, duress or fraud, or if the agreement is unconscionable.” In re Marriage of Gorman, 284 Ill. App. 3d 171, 180 (Ill. App. Ct. 1996)
If the settlement agreement is vacated because of unconscionability any alleged damage caused by allowing the client to sign the agreement is rendered moot.
Mental illness is extremely sad. Divorce lawyers are not in the business of diagnosing mental illness or treating mental illness. If divorce lawyers identify a mental illness which is severely impacting their client, that divorce lawyer should probably withdraw and possibly “consult[] with individuals or entities that have the ability to take action to protect the client and, in appropriate cases, seek[] the appointment of a guardian ad litem, conservator or guardian” per Illinois Rule of Professional Conduct 1.14(b)
If you are an Illinois lawyer who would like to discuss a case with a mentally incapacitated client, give me a call. Clearly, I think about this stuff all day, every day and would enjoy helping you through your issue.