The Role of Counsel: Performance Standards for Attorneys in Civil Commitment and in Conservatorship Proceedings

• Performance Standards Governing the Representation of Clients in Civil Commitment Proceedings (Connecticut)
• Performance Standards Governing Representation of Clients in Conservatorship Proceedings (Connecticut)

The Performance Standards are published by the Office of the Probate Court Administrator in the Manual for Court-Appointed Attorneys in Courts of Probate. Both sets of Performance Standards were promulgated in 1997, in conjunction with the continuing education program for lawyers and judges, Probate Court Practice: Practical Representation of Persons with Psychiatric Disabilities, sponsored by the Office of the Probate Court Administrator, Connecticut Legal Rights Project, and the Health Law Clinic at Quinnipiac College School of Law. The standards were revised in 2016 in light of changes in the statutes.

Cases on the RIght to Effective Assistance of Counsel:

• In re the mental health of KGF, 29 P3d 485 (Montana 2001), a decision by the Montana Supreme Court
• In re Hutchinson, 454 A.2d 1008 (PA 1982), an older case from the Pennsylvania Supreme Court
• In re Marcus S., 2022 Ill. App. 3d 160710 (Ill. App. Ct. 2022), finding, among other failings, that counsel's failure to notify the trial court that the State's petition was defective amounted to ineffective assistance
• In re Marcus S., 2022 IL App (3d) 170014 (Ill. App. Ct. 2022)
• Gasque v. King, Maine Super. Ct., No. CV-04-565, 2005, a trial court decision on a habeas petition
• In re Leo M., 2022 IL App (5th) 190211 (Ill. App. Ct. 2022), finding ineffective assistance of counsel for failing to protect the patient's due process rights, noting the hearing took only 13 minutes, although 14 different drugs were requested, the lack of even a closing argument, and “multiple flagrant violations of the Mental Health Code’s requirements.”
• In re Harlin H., 2022 IL App (5th) 190108 (Ill. App. Ct. 2022) (“Blatant errors in this matter were so prejudicial as to render Harlin H.’s counsel ineffective…. counsel conducted a minimal cross-examination of Dr. Casey about whether Harlin H. was currently agreeing to take Luvox and whether he had objected to other medications but was taking them ‘on an enforced basis.’ The defense’s cross-examination took up less than one page of the transcript. We further note that the lack of any objections to the State’s omissions and errors in the medication order did not appear to be trial strategy, as counsel did not save any challenges to the State’s evidence for closing argument, because he did not make a closing argument.”)
• In re Tara S., 2017 IL App (3d) 160357 (Ill. App. Ct. 2017) (“[C]ounsel’s performance was deficient for not objecting” where State's sole expert witness had not personally examined respondent. “Counsel’s omission prejudiced the outcome of the proceeding as respondent could not be subject to involuntary admission without the testimony of an expert examiner who actually examined respondent.” In addition, counsel failed to raise the State’s omission of written information on lithium as required by the statute governing the administration of psychotropic medication.)

"We close by admonishing trial courts, the state's attorney, and all counsel who represent respondents in involuntary commitment and treatment proceedings to do better in future cases. Unfortunately, this is far from the first time we have encountered such a brazen disregard for the law in civil commitment cases. Our appellate court has repeatedly stressed the need for strict compliance with the legislatively established procedural safeguards for involuntary commitment proceedings. Nevertheless, our admonitions continue to go unheeded, and fundamental errors and omissions recur with disturbing regularity. This threatens to render involuntary commitment and treatment proceedings, which involve massive intrusions on respondents' liberty, pro forma proceedings. That cannot be tolerated. We hope that our supreme court will act to stop to these continuing, egregious violations of respondents' constitutional and statutory rights in these cases." -- In re Marcus S., supra