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Representing a Criminal Defendant with Diminished Capacity: Ethical and Constitutional Issues 2026

Product ID: CA3904R6
Presented By: State Bar of Wisconsin PINNACLE

The competency conflict

When a criminal defendant struggles to understand the proceedings or make informed decisions, defense counsel faces an ethical balancing act. Wisconsin law requires defense counsel to notify the court if there’s reason to doubt a client’s competency, even when the client objects. But confidentiality rules prohibit revealing the reasons behind that concern. This tension between constitutional mandates and professional ethics tests defense counsel’s judgment, discretion, and duty to both client and court. 

Representing a Criminal Defendant with Diminished Capacity: Ethical and Constitutional Issues provides clarity on the ethical, procedural, and constitutional dimensions of competency and the practical guidance you need to meet your obligations. 

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Webcast seminar
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Pricing

Member $119.00

Non-Member $169.00

Credits

1 CLE, 1 EPR

Date and Time

Saturday, February 21, 202612:00 PM - 1:00 PM CT

Add to Calendar 2/21/2026 12:00:00 PM 2/21/2026 1:00:00 PM America/Chicago Representing a Criminal Defendant with Diminished Capacity: Ethical and Constitutional Issues 2026

The competency conflict

When a criminal defendant struggles to understand the proceedings or make informed decisions, defense counsel faces an ethical balancing act. Wisconsin law requires defense counsel to notify the court if there’s reason to doubt a client’s competency, even when the client objects. But confidentiality rules prohibit revealing the reasons behind that concern. This tension between constitutional mandates and professional ethics tests defense counsel’s judgment, discretion, and duty to both client and court. 

Representing a Criminal Defendant with Diminished Capacity: Ethical and Constitutional Issues provides clarity on the ethical, procedural, and constitutional dimensions of competency and the practical guidance you need to meet your obligations. 

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The competency conflict

When a criminal defendant struggles to understand the proceedings or make informed decisions, defense counsel faces an ethical balancing act. Wisconsin law requires defense counsel to notify the court if there’s reason to doubt a client’s competency, even when the client objects. But confidentiality rules prohibit revealing the reasons behind that concern. This tension between constitutional mandates and professional ethics tests defense counsel’s judgment, discretion, and duty to both client and court. 

Representing a Criminal Defendant with Diminished Capacity: Ethical and Constitutional Issues provides clarity on the ethical, procedural, and constitutional dimensions of competency and the practical guidance you need to meet your obligations. 

Read More ↓

B. K. Kempinen is a cum laude graduate of the University of Wisconsin Law School, where he taught from 1976 until his retirement in January of 2018. Professor Kempinen taught the first-year criminal law curriculum and several related courses (Trial Advocacy, Professional Responsibilities, and Advanced Substantive Criminal Law). He was also involved in several of the Law School's clinical programs, including serving as interim director of the Legal Defense Project; working as a supervising attorney in the Frank J. Remington Center's Legal Assistance to Institutionalized Persons Project (LAIP); and, from 1990 until his retirement, acting as director of the Remington Center's Prosecution Project. 

Professor Kempinen has experience in criminal trials and appellate litigation. He has taught at the National Institute of Trial Advocacy, participated in numerous conferences and continuing legal education programs over the past two decades, served on the Wisconsin Supreme Court Ethics 2000 Committee, and served as Chair of the State Bar’s Committee on Professional Ethics.

Timothy J. Pierce has been Ethics Counsel for the State Bar of Wisconsin since 2004. He received his undergraduate degree from the University of Wisconsin–Madison and his law degree, cum laude, from the University of Wisconsin Law School. Attorney Pierce was previously a Deputy Director at the Office of Lawyer Regulation in Milwaukee and Madison. He has also been employed as the Ethics Administrator for Milbank, Hadley, Tweed & McCloy, in New York, and as an Assistant State Public Defender in Racine. He is a member of the State Bar of Wisconsin.  

 

Attorney Pierce is a frequent speaker on matters of professional ethics and has given hundreds of CLE presentations to a wide variety of groups on professional responsibility law. He serves as reporter for the State Bar’s Committee on Professional Ethics and writes for the monthly Ethics column in Wisconsin Lawyer magazine. He has also taught Professional Responsibilities at the University of Wisconsin Law School since 2011, is a member of the ABA Standing Committee on Professional Ethics, and currently serves as a Volunteer Subject Matter Expert for the MPRE.

  • Make sound, defensible decisions when client competency is in question
  • Preserve client trust while meeting your constitutional and ethical duties
  • Avoid ethical missteps when confidentiality and court duties conflict
  • Reduce the risk of disciplinary complaints or ineffective assistance claims
  • Ensure your advocacy meets both constitutional and professional standards
  • Prosecutors
  • Criminal defense lawyers
  • Public defenders
  • Criminal appeals lawyers 
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