Some Types of Difficult Clients - Mentally Ill Clients

Any time you take on a client (mentally ill or otherwise), you must consider whether the client is capable of giving you instructions and you must remain aware of the capacity issue throughout the relationship. Just because someone suffers from a mental illness does not mean they are not capable of instructing counsel. Similarly, when considering whether to take on a client who has mental illness, you cannot decide not to represent them merely because they have a mental illness. The Human Rights Code prohibits discrimination against the mentally ill. Be careful to assess your ability to represent the client, as you would with any client, and not solely by reason of the fact that they have a mental illness.

The general principle is that you cannot take on a new client who lacks the capacity to give you instructions unless you were appointed by a court or tribunal, operation of statute, or in a proceeding in which some aspect of the client's mental capacity is in issue (BC Code, Chapter 3, rule 3.2-9). You may, however, take on a client of marginal capacity if he or she is competent to give you instructions on some, but not all, matters.

The rules are different if you are dealing with an existing client. You must maintain a normal client-lawyer relationship (to the extent reasonably possible) with a client who cannot instruct counsel (BC Code, Chapter 3, rule 3.2-9).

In addition to ensuring all communications with a mentally ill client are well documented, make certain your staff is equipped to deal with the client. This is not a cookie-cutter issue, and you will need a flexible approach if you find yourself dealing with more than one mentally ill client.

When dealing with those who are mentally ill, remember that you are a lawyer, and are neither equipped nor licensed to provide counselling for mental illness. Familiarize yourself with the resources that are available for the mentally ill, such as the Motivation Power & Achievement Society that assists with advocacy and court services for the mentally ill (see the Additional Resources section).

When taking on clients, be sure to familiarize yourself with the rules regarding client capacity in the BC Code, Chapter 3, rule 3.2-9. In certain circumstances you may have special duties of confidentiality to a client who lacks capacity (BC Code, Chapter 3, rules 3.2-9 and 3.3-1).

Community Discussion

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I would suggest some edits to this section. Terminology like "people with mental illness" or "a client with a mental illness" is preferable to the terminology used here, "the mentally ill".