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27 J. Legal Prof. 37 (2003)
Ineffective Assistance of Counsel: A Call for a Stricter Test in Civil Commitments

handle is hein.journals/jlegpro27 and id is 47 raw text is: INEFFECTIVE ASSISTANCE OF COUNSEL: A CALL FOR A
Phyllis Coleman, J.D.
Ronald A. Shellow, M.D.*
Because involuntary commitment deprives a person of liberty and may
stigmatize him, an individual facing compelled hospitalization is entitled to
due process, including a lawyer. However, the possibility that such a client
is limited in ways others are not and the protective purpose of the proceed-
ings combine to create a need to define: (1) the proper role for the attorney
and (2) how to assess whether the attorney provided effective assistance of
counsel in these cases. This Article examines these important issues.
Part II is a summary of civil commitment. Part III examines Strickland
v. Washington,1 a 1984 decision in which the United States Supreme Court
established two criteria for deciding if a lawyer's performance in a criminal
prosecution was adequate.2 Part IV reviews cases that apply this test in
compelled confinements. It also identifies conduct that courts have found
sufficient to require remedy and actions they determined were not. Part V
discusses In re K.G.F., a recent Montana decision that breaks with prece-
dent and correctly rejects the use of Strickland.4 Part VI presents the debate
over an attorney's role in commitment proceedings and suggests that the
attorney must be zealous in advancing his client's position, just as he is in
any other professional relationship. Recognizing the unique nature of these
actions, this Article urges states to mandate specialized training for private
and appointed counsel who practice in this area. Finally, Part VII includes a
proposal for a new method of evaluating counsel's performance in com-
mitment cases.
*   Phyllis Coleman, J.D., Professor of Law, Shepard Broad Law Center, Nova Southeastern Uni-
versity. Ronald A. Shellow, M.D., private practice of psychiatry, Voluntary Professor of Psychiatry,
University of Miami. The authors thank Mark Dobson, Pearl Goldman, Robert M. Jarvis, and Doris
Shellow for their valuable comments and suggestions. The research for this Article closed April 2002.
1.   466 U.S. 668 (1984).
2.   Strickland, 466 U.S. at 687.
3.   29 P.3d 485 (Mont. 2001).
4.   K.G.F., 29 P.3d at 491.
5.   The vast majority of the 1.1 million civil inpatient admissions in 1980, seventy-three percent
(broadly construed), were voluntary. Darold A. Treffert, The MacArthur Coercion Studies: A Wiscon-
sin Perspective, 82 MARQ. L. REv. 759, 777-78 (1999). Of those which are not, many patients waive
their rights to an adversarial hearing. Rebecca S. Dresser, Ulysses and the Psychiatrists: A Legal and

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