Representing impaired clients: Challenge and opportunity

“True, we build no bridges, we raise no towers...we paint no pictures.  There is little of all that we do which the eye can see.  But, we smooth out difficulties; we relieve stress; we correct mistakes; we take up other men’s burdens and by our efforts we make possible the peaceful life of men in a peaceful state.”

~ John W. Davis (14th U.S. Solicitor General who served under Woodrow Wilson)

The ISBA Standing Committee on Women and the Law, in conjunction with the ISBA Standing Committee on Delivery of Legal Services, the ISBA General Practice Solo and Small Firm Section Council, and the Illinois Supreme Court Commission on Professionalism, presented a program entitled “Ethically and Effectively Representing Clients with Substance Abuse and Mental Health Problems” at the ISBA Mid-Year Meeting on December 12, 2008. The genesis of the program occurred at a regular business meeting of the Committee on Women and the Law several months ago. At the time, we discussed the challenges we faced when representing clients with impairments ranging from mental health disorders to addiction. We decided to develop a continuing legal education seminar which would educate other attorneys on the issue. The program provided an excellent introduction to the needs of these clients, as well as numerous practical strategies for managing clients with such impairments.

Dr. Beth Wilner, Ph.D., a licensed clinical psychologist and mediator, opened the program with a discussion of “Reducing Risks and Managing Mayhem: Recognizing and Managing Clients with Mental Health and Substance Abuse Problems.” Dr. Wilner began the segment with the quote appearing above. This clearly suggested that we, as attorneys, have the unique opportunity to assist in bringing peace to an impaired client. Dr. Wilner taught that stress exacerbates any type of functional impairment. Litigation, a clearly stressful life event, leads to an increased likelihood of seeing significant impairments.

Dr. Wilner educated attendees about several different types of impairments: mood disorders, substance abuse issues, addictive behaviors and personality disorders. Mood disorders include conditions such as depression and bipolar disorder. Dr. Wilner explained that “major depression” is characterized by a depressed mood or loss of interest in pleasure from daily activities for at least two (2) weeks. Symptoms may include depressed mood, diminished interest in almost all activities of life, weight loss or weight gain, fatigue, feelings of worthlessness or inappropriate guilt, problems concentrating, and recurrent thoughts of death. Bipolar disorder, also known as “manic depression,” is a mental condition that usually involves extreme mood swings characterized by manic episodes. A person may feel happy and excited one moment and irritable or depressed the next.

Dr. Wilner next explained the distinction between “substance abuse” and “substance dependence.” Substance abuse may lead to the failure to fulfill obligations, use of the substance even when physically hazardous, and recurrent social, interpersonal or legal problems. Substance dependence may lead to increased tolerance of the substance, withdrawal, unsuccessful attempts to cut-down, or consumption of large amounts of the substance over long periods of time. Any type of addiction has many behavioral correlates which include stunted emotional development. In fact, Dr. Wilner explained that it is common for an alcoholic to have stunted emotional development which coincides with the time when the person started abusing alcohol. Thus, an alcoholic who began drinking at age 12 may remain only as emotionally developed as an average 12-year-old without appropriate treatment.

Dr. Wilner then discussed a range of personality disorders. Common disorders encountered in clients include borderline, antisocial, narcissistic and histrionic personality disorders. Dr. Wilner described the core characteristics of each of these personality disorders. The attendees of the program knowingly nodded at Dr. Wilner’s relatable descriptions of clients with such disorders. For example, she described the type of client who passionately tells you that “no one” has ever helped, understood, or fought for him like you. That same client is prone to calling you frequently and franticly. He asks for your cell phone number and your home phone number because he may “need” you. When frustrated, the client becomes volatile and perhaps verbally abusive toward you. The volatility is usually followed by pleas for forgiveness. This behavior indicates a possible “borderline” personality disorder. As a “borderline” personality, the client has a fundamental fear of abandonment, thus he is constantly testing your loyalty to him. An attorney representing such a client is well-served to communicate calmly and consistently, without any overreaction to the client’s intense feelings of emotion. It is also essential that an attorney set firm boundaries with this client, as well as lay-out realistic expectations of the legal system and the attorney’s role in the process. Dr. Wilner discussed narcissistic, antisocial, and histrionic personality disorders in the same vein, and how, as an attorney, we can effectively manage each type.

Dr. Wilner then turned to the issue of how to help an impaired client. She included a sample “script” to help ease any anxiety when broaching the subject with a client. She suggested that we “normalize, validate, and empathize with the stress associated with litigation,” explain the limits of our role, and emphasize that litigation can be more efficient and less costly when impairments are managed by appropriate counseling. Dr. Wilner suggested that an attorney express interest in having the client functioning at his or her best during litigation. An attorney may suggest that evaluation or consultation with a mental health professional could help determine the best course of action in litigation—thus serving the client’s best interest. Dr. Wilner also provided a helpful list of resources regarding mental health issues including the American Psychological Association’s psychologist locator Web site (www.locator.apa.org), the National Alliance on Mental Illness (NAMI Illinois at www.il.nami.org), the National Depression and Bipolar Support Alliance (www.dbsalliance.org), and Say it Out Loud (www.mentalhealthillinois.org). For substance abuse resources, she discussed the Substance Abuse and Mental Health Services Administration (www.findtreatment.samhsa.gov) and the Lawyers Assistance Program (www.illinoislap.org).

Next, a panel of judges provided a thoughtful discussion of the challenges faced in their courtrooms when dealing with impaired litigants. The Committee was honored to have Judge Patrick E. McGann, Presiding Judge of the Circuit Court of Cook County, County Division, Judge Jesse Reyes, Cook County Circuit Court Judge, and Judge Carla J. Alessio-Policandriotes, Will County Circuit Court Judge, participate in the discussion. The judges handled a diverse range of calls, including criminal and civil law, and discussed their views on issues created when litigants struggle with mental health and substance abuse issues. Judge McGann urged lawyers to grasp the critical position they are in when representing impaired clients. He challenged attorneys to represent clients in a holistic manner and include investigation into alternative treatment methods for those clients needing treatment. Judge Reyes made a call to action to attorneys, noting that judges often do not know about impaired clients. Even if the issue was brought to a judge’s attention, many judges are cautious about overstepping their bounds. Judge Alessio-Policandriotes discussed recent Will County programs that have enjoyed success in addressing the needs of impaired clients.

Benedict Schwarz, II, current Chair of the ARDC Commissioners, presented “Ethical Dilemmas: When To Get Out, And What To Do If You Can’t.” Mr. Schwarz presented fact patterns which generated interesting discussions of ethical quandaries faced by attorneys and judges when working with impaired clients. He discussed Illinois Rule of Professional Conduct 1.14 entitled “Client Under a Disability” which states “[w]hen a client’s ability to make adequately considered decisions in connection with the representation is impaired, whether because of minority, mental disability, or some other reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship.” It goes on to state that “[a] lawyer may seek the appointment of a guardian or take other protective action with respect to a client, only when the lawyer reasonably believes the client cannot adequately act in the client’s own interest.” He also discussed the proposed Rule 1.14 renaming the Rule “Client with Diminished Capacity.” The proposed Rule 1.14 states “[w]hen 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.” The proposed rule further provides that “[i]nformation 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 proposed rule provides greater guidance to the attorney representing an impaired client.

Susan C. Riegler, the Clinical Director of the Lawyers’ Assistance Program (LAP), presented the final session of the program. Ms. Riegler discussed “The Lawyers’ Assistance Program: How to Help Yourself (Or, Sometimes, Opposing Counsel).” Ms. Reigler added some breadth to the program by focusing on the impact on attorneys when dealing with impaired clients. The struggles in dealing with impaired clients may in turn cause attorney impairment. She discussed the best ways for attorneys to protect their own health, as well as strategies for recognizing and dealing with circumstances in which attorneys themselves are struggling with these issues.

Ms. Riegler also discussed an interesting phenomena known as “compassion fatigue.” Compassion Fatigue is a disorder affecting a person in a serving profession who “cares long enough and hard enough without a genuine ongoing sense of accomplishment and success.”1 Traditionally, the concept applied to health care workers, but recent studies suggest that attorneys are increasingly affected by it. As explained by one bar association, “[u]nlike burnout, sufferers demonstrate symptoms that can include intrusive recollections of the reported traumas. . . an overall decrease in experiences of pleasure in even their personal life and an underlying level of constant stress that interferes in daily life. . . . While most sufferers exhibit a decrease in work performance and productivity, they also report a pervasive negative or anxious attitude that undermines their ability to focus or concentrate. Newly developed feelings of incompetency and self-doubt can emerge, along with doubts about the profession and one’s ability to succeed or be effective.” Id.

Ms. Reigler noted that many attorneys unfortunately develop bad coping habits in response to client-related stress. The coping habits include repression, denial and self-medication. In fact, LAP estimates that between 10 percent and 20 percent of Illinois attorneys suffer from addiction or mental illness. Ms. Reigler explained that LAP is there to not only provide assistance to attorneys with substance abuse problems, but also provides services to attorneys in need of help for mental health impairments. LAP has trained intervenors who will communicate confidentially with the attorney suffering from an impairment. For more information about the Lawyers’ Assistance Program, you may go to <www.illinoislap.org/>.

E. Nicole Carrion and Amie Simpson, Women and the Law Committee members, coordinated and moderated this extremely insightful program.

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1. St. Petersburg Bar Association Magazine, February, 2006.