Ethical Issues Raised By Diminished Capacity Parties And Impaired Counsel

1. Ethical Issues Raised By Diminished Capacity Parties And Impaired Counsel Eric C. Lang ICLE Atlanta, Georgia February 14, 2013

2. Normal Processing Processor Clear Filter Action

3. Diminished/Impaired Processing Processor Pre-Processing Unclear Action Filter

4. General Statistics • Anxiety disorder – 18.1%. • Major depressive disorder – 9.5%. • Post-traumatic stress disorder – 3.5%. • Panic disorder – 2.7%. • Bipolar disorder – 2.6%. • Borderline personality disorder – 1.6%. • Schizophrenia – 1.1%. • Antisocial personality disorder – 1%.

5. Attorney Statistics • Suicide is the third leading cause of death of lawyers, after cancer and heart disease. • Lawyer suicide rates are up to six times as high as the rest of the population. • Rates for depression and associated symptoms also exceed the general population.

6. The Diminished Capacity Client

7. Rule 1.14: Diminished Capacity Client When a client's capacity to make adequately considered decisions in connection with a representation is diminished, whether because of minority, mental impairment or for some other reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client. When the lawyer reasonably believes that the client has diminished capacity, is at risk of substantial physical, financial or other harm unless action is taken and cannot adequately act in the client's own interest, the lawyer may take reasonably necessary protective action, including consulting with individuals or entities that have the ability to take action to protect the client and, in appropriate cases, seeking the appointment of a guardian ad litem, conservator or guardian. Information relating to the representation of a client with diminished capacity is protected by Rule 1.6. When taking protective action pursuant to paragraph (b), the lawyer is impliedly authorized under Rule 1.6(a) to reveal information about the client, but only to the extent reasonably necessary to protect the client's interests. The maximum penalty for a violation of this Rule is a public reprimand.

8. Comments to Rule 1.14 How to determine diminished capacity: • the client's ability to articulate reasoning leading to a decision; • variability of state of mind and ability to appreciate consequences of a decision; • the substantive fairness of a decision; and the consistency of a decision with the known long-term commitments and values of the client. • In appropriate circumstances, the lawyer may seek guidance from an appropriate diagnostician.

9. Comments to Rule 1.14 Possible protective actions: • consulting with family members; • using a reconsideration period to permit clarification or improvement of circumstances; • using voluntary surrogate decision making tools such as durable powers of attorney; or • consulting with support groups, professional services, adult-protective agencies or other individuals or entities that have the ability to protect the client.

10. Comments to Rule 1.14 Caution Disclosure of the client's diminished capacity could adversely affect the client's interests. . . . At the very least, the lawyer should determine whether it is likely that the person or entity consulted with will act adversely to the client's interests before discussing matters related to the client. The lawyer's position in such cases is an unavoidably difficult one.

11. What Do The Cases Say? • There are no Georgia cases; there are 28 total cases nationally that even mention this rule and only two of those cases provide guidance us on mentally impaired clients.

12. Truth Can Be Stranger Than Fiction(Part I: Cheney v. Wells) • Ms. Wells went through thirteen sets of counsel. • One lawyer’s motion stated “it is almost impossible to adequately describe the nightmare of representing Ms. Wells.” • Another motion stated “It is clear that Ms. Wells is a severely emotionally damaged person.” • Court concluded “it was apparent not only that Ms. Wells was incapable of managing the instant litigation, but also that she was unable to appreciate the consequences of that incapacity.”

13. Truth Can Be Stranger Than Fiction(Part II: Sturdza v. UAE – Client/Attorney) “Mr. Lewin is lying all the way and I will never accept a guardian ad litem.” “This is just a fabrication of Mr. Lewin. He fabricates things. It is all a fabrication.” “He hides behind a guardian his criminal acts against my case. He is sabotaging the case. He probably made an arrangement with the defendants to settle.”

14. Truth Can Be Stranger Than Fiction(Part II: Sturdza v. UAE – Client/Judge) THE MAGISTRATE JUDGE: Ms. Sturdza, you know you won in the Court of Appeals. MS. STURDZA: Excuse me? THE MAGISTRATE JUDGE: You won in the Court of Appeals. You won. * * * MS. STURDZA: So this, today’s session should not have existed. THE MAGISTRATE JUDGE: Well, it did. Thank you, Ms. Sturdza. MS. STURDZA: It did, and too bad. THE MAGISTRATE JUDGE: So be it.

15. Truth Can Be Stranger Than Fiction(Part II: Sturdza v. UAE – Client/World) “Well, it’s a problem of this Court, this Court is sympathizing too much with United Arab Emirates. United Arab Emirates is a friend of this county. But they should not steal from us. They are stealing. And they should not steal, and this county should not let them steal.” “But in any case, even if I believe something I might be totally wrong. I have no way of knowing. I don’t have any details, I don’t have any proofs, I didn’t hear anybody talking about it. It’s just my guess that maybe UAE is our friend.” “My mother was going to die because of her physician and I am not going talk to whoever that is.”

16. What Happens? • Guardians appointed. • Lawyer withdrawal permitted. QUESTION: What can you do if this arises as trial approaches. • Does admitting client’s condition prejudice the case. • What if client instructs not to communicate with others. • A withdrawal could prejudice the client.

17. Protective Steps • Get permission to communicate with others either in the engagement letter or thereafter. • Condition representation on objective, measureable steps: • Care • Compliance with care • Document and confirm regularly. • Seeking a guardian.

18. The Impaired Lawyer

19. Rule 4-104: The Impaired Lawyer • Want of a sound mind, senility, habitual intoxication or drug addiction, to the extent of impairing competency as an attorney, when found to exist under the procedure outlined in Part IV, Chapter 2 of these rules, shall constitute grounds for removing the attorney from the practice of law. Notice of final judgment taking such action shall be given by the Review Panel as provided in Rule 4-220(a). • Upon a finding by either panel of the State Disciplinary Board that an attorney may be impaired or incapacitated to practice law due to mental incapacity or substance abuse, that panel may, in its sole discretion, make a confidential referral of the matter to the Committee on Lawyer Impairment for the purposes of confrontation and referral of the attorney to treatment centers and peer support groups. Either panel may, in its discretion, defer disciplinary findings and proceedings based upon the impairment or incapacitation of an attorney pending attempts by the Committee on Lawyer Impairment to afford the attorney an opportunity to begin recovery. In such situations the committee shall report to the referring panel and Bar counsel concerning the attorney's progress toward recovery. • In the event of a finding by the Supreme Court that a lawyer is impaired or incapacitated, the Court may refer the matter to the Committee on Lawyer Impairment, before or after its entry of judgment under Bar Rules 4-219 or 4-220(a), so that rehabilitative aid may be provided to the impaired or incapacitated attorney. In such situations the committee shall be authorized to report to the Court, either panel of the State Disciplinary Board and Bar counsel concerning the attorney's progress toward recovery.

20. Lawyer Assistance Program • Exists to “confidentially identify and assist Bar members who are experiencing problems” • Responsible for “implementing an impairment program that provides education, referral and intervention.” • Impairment is a “psychological, emotional or stress-related disease or problem, or … abusing alcohol or other chemical substances, or has become dependent ….”

21. Lawyer Assistance Program • Takes referrals from, and communicates with, State Disciplinary Board. • Can request an “emergency suspension” if the“impaired attorney poses a substantial threat to the attorney, they attorney’s clients, or the public.” • “In order to help meet the needs of its members and ensure confidentiality, The Bar contracts the services of CorpCare Associates, Inc., Employee Assistance Program, a Georgia-headquartered national counseling agency.”

23. Another Lawyer’s Impairment – by the Rules • Rule 8.3(a): “A lawyer having knowledge that another lawyer has committed a violation of the Georgia Rules of Professional Conduct that raises a substantial question as to that lawyer's honesty, trustworthiness or fitness as a lawyer in other respects, should inform the appropriate professional authority.” • Comment: “Self-regulation of the legal profession requires that members of the profession initiate disciplinary investigations when they know of a violation of the Georgia Rules of Professional Conduct. Lawyers have a similar obligation with respect to judicial misconduct. An apparently isolated violation may indicate a pattern of misconduct that only a disciplinary investigation can uncover. Reporting a violation is especially important where the victim is unlikely to discover the offense.” • However, Rule 4-104 is not part of the Georgia Rules of Professional Conduct. You probably have no obligation here at all.

24. Impaired Lawyers Break Other Rules • In re Moody, 281 Ga. 608 (2007), two instances of mishandled cases, one instance of appearing intoxicated in court, in the presence of a diagnosis of bipolar disorder, resulted in a five year suspension, not disbarment. • In re Bagwell, 286 Ga. 511 (2010), five instances of failing to properly represent clients, coupled with “Bi-Polar Disorder, attention deficit hyperactivity disorder, major depressive disorder, and generalized anxiety disorder, and has undergone in-patient psychiatric evaluation,” resulted in two year suspension. (Suspension just lifted.) • In re Jaconetti, 732 S.E.2d 447 (2012), neglect of eight clients, due to bipolar disorder, resulted in three year suspension, not disbarment.

25. ESPECIALLY The Big One • In re Rand, 279 Ga. 555 (2005), five formal complaints of misuse of settlement funds, in the presence of a diagnosis of bipolar disorder, resulted in five year suspension, not disbarment. • In re Giallanza, 287 Ga. 257 (2010), six complaints of mishandling funds, coupled with diagnosis of ”significant cognitive impairments, meets the criteria for a diagnosis of dementia, and is not able to function at the level required of a practicing attorney” resulted in indefinite suspension, not disbarment. • In re LeDoux, 288 Ga. 777 (2011), financial irregularities, including bounced trust check, in the presence of “acute mental health episode that ultimately resulted in her hospitalization in two different mental health facilities,” resulted in a one year suspension, not disbarment.

26. Seeing Impairment in Yourself and Others – “Psych” Views Depression: • Depressed mood • Loss of interest or pleasure • Change in appetite or weight • Change in sleeping patterns • Fatigue or loss of energy • Speaking and/or moving with unusual speed or slowness • Feelings of worthlessness or excessive or inappropriate guilt • Diminished ability to think or concentrate, or indecisiveness • Recurrent thoughts of death or suicide • Suicide attempts Risk of Suicide: • Depression symptoms at a serious level. • Increased alcohol / drug use. • Impulsiveness. • Unnecessary risk taking. • Threats or expressions of suicidal wishes. • Planning, such as giving away possessions or obtaining means. • Unexpected fits of rage or anger.

27. Seeing Impairment in Yourself and Others – “Reality” Views • Change in work habits / productivity. • Change in attendance in office or functions. • Unprofessional behavior such as • Untimeliness • Unresponsiveness • Content of communications and writings. • Change in appearance / dress. • Financial stress. • Negative professional outcomes.

28. How to Help • Find professional help. At a minimum you can contact the Lawyer Assistance Program for suggested action. • Be an encouraging, engaged listener. • Be supportive of all efforts to obtain help. • Take threats and remarks about suicide very seriously. You can call a suicide prevention hotline; call 911; or even bring someone to an ER.

29. Being Proactive • Take steps to raise awareness. • Make resources available beyond the Lawyer Assistance Program. • Review your health insurance and make sure it has adequate mental health coverage.

30. Thank you. If you want a copy of this presentation, email me at elang@langlegal.com