When Something is Not Quite Right: Considerations for Advising a Client to Seek Mental Health Treatment

Abstract

This Article advocates that a lawyer should consider counseling a client to seek mental health treatment where the lawyer has concerns about the client’s behavior, emotional state, or cognition. It stresses that mental health counseling should be presented within ethical bounds and only after adequate consideration is given to the legal matter, to the client’s goals, and to factors relating to identification of an appropriate mental health referral. Focus on the legal problem is a lawyer’s professional responsibility, and concern for a client’s mental health is part of a humanitarian function of lawyering. Advising a client to seek treatment should be considered supportive of the ethical-social values of the legal profession, part of what develops as part of a lawyer’s professional identity.

Lawyers have no specific guidance on what to say to the client with a mental health problem about seeking its resolution. This Article explores rules of professional responsibility, theory, and reasoning processes related to advising clients to seek mental health treatment. Furthermore, it looks at cultural and financial aspects of treatment, and concludes with recommendations on how a lawyer should counsel her client once she determines that mental health treatment is appropriate. It presents a framework for considering how evaluation and treatment for mental illness might affect the legal matter for which the attorney has been retained, and sets forth recommendations for how a lawyer should advise her client to seek mental health treatment, considering her professional role, the impact of treatment on the legal matter, and the effects of race, culture, and ethnicity and affordability of mental health treatment.