In Marisol Orihuela’s The Lawyer’s Quandary: Client-Center Lawyering in the Treatment Paradigm, we get an in-depth discussion about the dilemma criminal defense lawyers face when they are counseling individuals with atypical decision-making capacity. Specifically, Orihuela focuses on individuals with personality conditions who need to decide if they want to enter mandated treatment in lieu of prison. The lawyer’s role, she writes, “requires a candid and honest assessment of how best a client might achieve the client’s goals in their legal matter.” However, systemic flaws regarding accessibility to treatment for personality conditions, coupled with decision-making impairments caused by such conditions lead to an impasse. What is the lawyer supposed to say or do?
Legal ethical rules and lawyering models do not provide clear solutions. This article offers a thorough first step toward filling this gap. Further, Orihuela’s treatment of this kernel of an issue generates a much broader critique of the criminal legal system by highlighting systemic flaws and raising concerns about the fairness of criminal proceedings for individuals with personality conditions. Among the ways it does this is by demonstrating the limits of incremental reform in indigent criminal defense and by underscoring that the law and those in power consistently fail to consider, let alone accommodate, poor and disabled people.
Although decision-making capacity falls on a continuum, individuals with extreme impairments rooted in severe mental illness tend to receive the most attention. Rather than focus on this group, Orihuela instead offers a rich exploration of a much more common segment of the population: those with either an anti-social personality disorder or a borderline-personality disorder, each of which can affect decision making.
Orihuela shares an example of a woman who vacillates between wanting to enter mandated treatment to avoid prison and wanting to avoid treatment for fear of severe punishment if she fails. The trajectory of the criminal case for such individuals is fraught, and there are so many ways the lawyer and the system can fail them. There is the possibility the lawyer for these individuals is ignorant of these issues, doesn’t have the time or resources to figure out the dilemma, or does not understand that access to appropriate treatment for personality disorders is non-existent in the criminal system. Ethically, if the lawyer learns too much about the individual’s specific mental health conditions, they may no longer be able to advocate for them to enter treatment court. The lawyer may bypass the client altogether and decide on their behalf without consulting them first, but this raises serious ethical concerns.
In Orihuela’s example, the lawyer adheres to an ideal model of client-centered lawyering, which aims to maximize the client’s decisional autonomy. She writes, “the client-centered lawyer is not bound by a strict application of the rules, instead they prioritize the client’s authority and view the client as the best situated to make the decisions.” While this model originally urged lawyers to stay neutral, its more modern iteration promotes a collaborative decision-making process between lawyers and clients. But even if a lawyer can avoid limited resources, time, and jurisdictions with limited alternatives to incarceration, there is a problem. Collaborative decision-making requires that lawyers know how to counsel a client through the options the client may have and to empower them to decide among those options. Disabilities that affect decision-making can make this process challenging. Personality conditions can further make it difficult to assess the client’s ability to adhere to court-imposed conditions or understand the risks of failure. Further, even if lawyers can convey these risks clearly, atypical decision-making can also include a diminished ability for necessary foresight. As Orihuela writes, “[i]n simple terms, people with these conditions have difficulty weighing risks and benefits of different options, and in particular have difficulty in waiting for a bigger reward when a smaller reward is initially offered.”
There are no answers to what should happen in these cases in the ethical guidelines governing criminal defense. This is a huge problem. What, then, are lawyers representing these individuals supposed to do?
Orihuela provides hope toward an answer by discussing newer lawyering modalities that are better equipped to deal with this dilemma, albeit with limitations. One modality consists of multi-disciplinary defense teams, such as holistic defense models. A second is criminal defense lawyers working alongside social workers and community and family members to help clients navigate difficult decisions.
Orihuela also argues that lawyers in these cases might need a perspective shift. The more traditional goal of minimizing incarceration may not be the best objective. Instead, she urges lawyer to have a “more expansive view of the interests that should drive the aims of representation.” She, of course, also tells lawyers that deciding which objective to pursue requires a mental health expert who can give more clarity on a client’s ability to understand available options and to abide by any necessary conditions of compliance. Only after such an assessment can a lawyer have a more expansive view of a client’s best interests.
There are, of course, limitations to multidisciplinary models of representation and more expansive views of the goals of representation. But what Orihuela offers is a resource that practitioners can now consult to explore the complications and possible paths forward for individuals with atypical decision-making caused by personality disorders. Because this issue has not been covered by the literature, this article is a significant contribution.
Orihuela’s exploration of this problem also raises two important questions that should make lawyers consider what are we doing here?
The first question is whether it makes sense to have a criminal legal system in which we punish individuals who have a disability described as an “enduring pattern of inner experience and behavior that deviates markedly from the expectations of the individual’s culture, is pervasive and inflexible, has an onset in adolescence or early adulthood, is stable over time, and leads to distress or impairment.” What is the goal of imposing criminal punishment on an individual who fits this description?
This leads to a second quandary, highlighted by Orihuela and explored by other scholars: how can decisional autonomy be real when there are systemic flaws that leave individuals charged with crime with no real options? If neither improved lawyering models nor legal ethics guarantee a decision we should trust, then maybe this system is irreparable, and we need to start over.
