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CLIENT CONTROL/CLIENT MANAGEMENT – STRATEGIES FOR DEALING WITH
VARIOUS PERSONALITIES IN PRACTICE
Sponsor: Family Law Section and Young Lawyers Division CLE Credit: 1.0 ethics Thursday, June 18, 2015
3:45 p.m. - 4:45 p.m. Elkhorn A-D
Lexington Convention Center Lexington, Kentucky
A NOTE CONCERNING THE PROGRAM MATERIALS
The materials included in this Kentucky Bar Association Continuing Legal Education handbook are intended to provide current and accurate information about the subject matter covered. No representation or warranty is made concerning the application of the legal or other principles discussed by the instructors to any specific fact situation, nor is any prediction made concerning how any particular judge or jury will interpret or apply such principles. The proper interpretation or application of the principles discussed is a matter for the considered judgment of the individual legal practitioner. The faculty and staff of this Kentucky Bar Association CLE program disclaim liability therefore. Attorneys using these materials, or information otherwise conveyed during the program, in dealing with a specific legal matter have a duty to research original and current sources of authority.
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TABLE OF CONTENTS The Presenters ................................................................................................................. i Everything You Wanted to Know about Mental Illness – But Were Afraid to Ask .................................................................................................... 1 Scenarios ........................................................................................................................ 7
THE PRESENTERS
Dr. Timothy S. Allen Lexington Forensic Psychiatry
1401 Harrodsburg Road, Suite A420 Lexington, Kentucky 40507
(859) 277-7423 [email protected]
DR. TIMOTHY S. ALLEN maintains a private practice in the area forensic psychiatry. He also serves as a part-time associate clinical professor with the University of Kentucky Department of Psychiatry, part-time staff psychiatrist with the Kentucky Correctional Psychiatric Center and as a psychiatric consultant with the Federal Medical Center. Dr. Allen's current area of research is traumatic brain injury and its effect on criminal and violent behavior. He received his B.A. from the University of Louisville and his M.D. from the University of Kentucky. Dr. Allen serves on the Neuropsychiatry Committee of the American Academy of Psychiatry and the Law. Acena Johnson Beck O'Hara Ruberg Taylor Sloan Sergent 25 Tower Center Boulevard, Suite 201 Crestview Hills, Kentucky 41017 (859) 331-2000 [email protected] ACENA JOHNSON BECK is Of Counsel with O’Hara, Ruberg, Taylor, Sloan & Sergent and focuses her practice on family law. She is a graduate of Morehead State University and received her J.D. from the Salmon P. Chase College of Law. Ms. Beck is active in the Northern Kentucky Bar Association, currently serving as Co-Chair of the Family Law Section, and the Kentucky Bar Association. She serves on the Board of Directors of the Academy of Northern Kentucky Collaborative Professionals. In 2014, Ms. Beck was appointed to the Kentucky Access to Justice Commission for a three year term.
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Jennifer Scholl Overmann Dietz & Overmann, PLLC
130 Dudley Road, Suite 150 Edgewood, Kentucky 41017
(859) 757-4234 [email protected]
JENNIFER SCHOLL OVERMANN is a partner with Dietz & Overmann, PLLC, and concentrates her practice in the area of family law, including divorce, custody, child support, and adoptions. She is licensed to practice law in Kentucky and Ohio. Ms. Overmann is a member of the American Bar Association, Kentucky Bar Association, and Northern Kentucky Bar Association. Ms. Overmann has served as Chair of the Young Lawyers Division and as Secretary for the Northern Kentucky Bar Association. She currently serves on the American Bar Association Young Lawyers Division Affiliate Assistance Team and the Kentucky Bar Association Young Lawyers Division Executive Board. Ms. Overmann is a member of the board of the Northern Kentucky Volunteer Lawyers Program and Secretary for CASA for Kids of Kenton and Campbell County. She obtained her law degree from the Salmon P. Chase College of Law, and has a Bachelor's Degree in Education from the University of Kentucky. She is also a family mediator and Guardian ad Litem.
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EVERYTHING YOU WANTED TO KNOW ABOUT MENTAL ILLNESS* *BUT WERE AFRAID TO ASK
Timothy S. Allen, MD*
DEPRESSION
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How common is Major Depression?A. 1-5% of the population in their
LifetimeB. 6-10%C. 11-20%D. 21-30%
QUESTION 1
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* Associate Clinical Professor, UK Dept. of Psychiatry, www.TimothyAllenMD.com.
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Lifetime Prevalence•10-25% in Women• 5-12% in MenRecurrence Rate ~ 75% untreatedIs it more common now?Likely to be occurring at younger agesUntreated usually last 6-24 mos
EPIDEMIOLOGY: MAJOR DEPRESSION (MDD)
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5 or more of the following for 2+ weeks:Pervasive sad mood interest in most activitiesWeight loss or gain (+ 5%)Sleep disturbancePsychomotor agitation or retardationFatigueGuilt concentrationRecurrent thoughts of death
MAJOR DEPRESSIVE D/O
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MANIA
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How common is Bipolar DisorderA. 1-5%B. 6-10%C. 11-20%D. 21-30%
QUESTION 2
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Depressive episode criteria same as MDDMania= persistent elevated or irritable mood for >1 week with 3 or more:•grandiosity• need for sleep• talkativeness•Flight of ideas•Distractability• Increased goal-directed behavior•Excessive involvement in pleasurable activities
BIPOLAR DISORDER
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1% lifetime prevalenceAverage onset at 19 years60% substance abuse co-morbidityKindling effectDepressive Episodes last 6-12 mos, manic 3-6 mos untx
BIPOLAR D/O (BAD)
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With Mixed Anxiety and Depressed MoodEmotional symptoms within 3 months of a stressor.Marked distress with significant impairmentCannot last more than 6 months beyond end of stressor
ADJUSTMENT DISORDER
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SCHIZOPHRENIA AND PSYCHOSIS
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How common is Schizophrenia?A. 1-5%B. 6-10%C. 11-20%D. 21-30%
QUESTION 5
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Schizophrenia can be considered psychosis in its purest form.Usually develops in late teens/early 20sHas prodromal stage in teensStress usually precipitates 1st breakStrong familial links
ETIOLOGY
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Auditory are by far the most commonAlcohol withdrawalLate dementiaSevere DepressionSevere Personality DisorderVisual>Tactile>Olfactory>Gustatory
HALLUCINATIONS
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JealousyGrandeurConspiracySomaticCapgras’ Syndrome
DELUSIONS
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Thought BlockingPoverty of SpeechLoose AssociationsEcholalia
DISORGANIZED THOUGHT
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Social WithdrawalBlunted AffectPoor HygieneOdd Beliefs (e.g. ESP)
NEGATIVE SYMPTOMS
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SCENARIOS
I. SCENARIO #1
You represent Client in a custody action. He has one child that was the result of a short-term relationship. When his daughter was born, the mother would not allow him to see the child. He had no choice but to retain you to file a Paternity/Custody action in Family Court. After a contentious temporary hearing in court, the Judge issued a temporary order of joint custody and equal parenting time. Your client is not happy about the Judge's ruling and lashes out at you because the Judge did not grant him sole custody. He calls into question your legal abilities while using profanity. 1. What is the best way to handle this situation?
a. Scream back at him and tell him he is a terrible client. b. Fire him on the spot. c. Explain that he needs to take a few days to calm down and digest
the events. Offer to call him later in the week. d. Other.
Client calls you three days later and insists that you assist him in obtaining full-custody of his daughter. After further investigation into the matter, you find that although Mother of the child wrongfully withheld the child from Client following the child's birth, she is fully cooperating in the spirt of the joint custody order. She follows all of the court orders as to the parenting schedule, she sends Client pictures, texts, and emails regarding the child's wellbeing during her parenting time. She initiates a discussion about child care options. The child is well cared for during Mother's parenting time and there are no credible concerns regarding abuse or neglect. You also learn from opposing counsel that Client has been sending derogatory emails to Mother calling her obscene names and telling her he will stop at nothing to ensure she does not see her child again. You schedule a meeting to discuss these findings with Client along with his wishes to ask for and obtain sole custody of his daughter at trial. In your experience with custody matters and this particular judge, you know that Client will not have sufficient evidence to obtain sole custody. The more you speak with him, it becomes clear that he wants to initiate a custody battle to be vindictive to Mother. He tells you that he wants to "put her through the ringer and make her pay for withholding his daughter from him." He proceeds to give you a list of witnesses he wants you to call on his behalf. Upon further questioning, you
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realize that the witnesses will not be helpful to his case, and may actually harm his case. 2. Are you required to move forward with a claim for sole custody per your
client's wishes? a. Yes. b. No.
c. Maybe.
3. Can you identify any personality disorders or mental health issues?
a. Bi-polar.
b. Aggression.
c. None.
d. Other. 4. Are you required to subpoena and call at trial the witnesses that your
client has provided you?
a. Yes. b. No.
c. Maybe.
5. Which psychiatric diagnosis may be considered in this case?
a. Bipolar Disorder.
b. Antisocial Personality Disorder.
c. Depression.
d. Substance abuse.
e. Psychosis or delusions. At the conclusion of your meeting you decide you are not comfortable assisting Client with a claim for sole custody. You explain to him that you do not feel that he has sufficient evidence to support a claim for sole custody and will not continue to represent him to pursue such. He responds "You are my lawyer. I have retained you and you have to represent me in obtaining sole custody."
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6. Should you:
a. Limit scope of representation.
b. Withdraw.
c. Continue with the claim of sole custody. d. Other.
II. SCENARIO #2
Client comes into your office for an initial consultation on a post decree matter dealing with custody, parenting time and support. He informs you that you would be his third attorney and that he is no longer represented. When asked why he parted ways with previous counsel, he said "they would not get back with him about the case." Client gives you the following facts: • Parties divorced in 2013 and have two minor children, Boy (nine) and Girl
(thirteen) • Wife received too much child support • Wife financially wrecked Client • The judge is best friends with Wife's attorney and ruled in her favor • The parties have joint custody • Client has no overnight parenting time • Client's limited time is due to parental alienation on the part of Wife • Client had supervised visitation on a temporary basis but there was no
reason for it other than Wife was overprotective • Client went to jail two different times on contempt issues; once for failure
to pay support and another time because he repeatedly had unsupervised contact with the children. REGARDLESS, he did nothing wrong, it was all because of Wife's lies and the court colluding with Wife and her attorney
Client is seeking your assistance to: • Get him justice for all of the wrongs he has encountered • Modify custody, he wants sole custody because Wife is unfit (no reasons
given) • Shared parenting time (week on/week off) • Terminate child support, because they will have equal time so there
should be no support, right? • Have Wife undergo a psychological assessment because she has major
mental health issues
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1. Which psychiatric diagnosis may be considered in this case?
a. Bipolar Disorder.
b. Antisocial Personality Disorder.
c. Depression.
d. Substance abuse.
e. Psychosis or delusions. 2. After the initial consultation he retains you, what would your first step be?
a. Contact opposing counsel to discuss the case and get background and schedule a joint meeting or mediation.
b. Review the court file and request corroborating information to
support his claims (if available) before filing a motion. c. File a motion (to modify custody, parenting time, support and for a
mental health assessment of Wife) based on his statements in the meeting.
d. Other.
3. You have done your due diligence, contacted opposing counsel, reviewed
the file and have gleaned that while Client may not have a 100 percent accurate view of the circumstances, there are some areas where Client may have a credible claim. You schedule a meeting with him to discuss the possible courses of action; he insists that you file the motion with the requests he is making verbatim with the allegations as he presents them. Should you:
a. Counsel Client in an effort to provide him with reasonable
expectations and to take action that is in his best interests for his ultimate goals.
b. File the motion with Client's requests and the allegations as
presented by Client verbatim even though you know it is unlikely that he will prevail.
c. Withdraw from the case. d. Other.
4. You have successfully counseled Client to file a motion that has
reasonable requests that are proper under the current circumstances. You have mediation with the other side and a full agreement is reached. Due to time constraints the agreed order is not typed and signed that day, but instead all parties agree that you will draft it and circulate it for
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signature. You draft the agreed order and send it to Client for review, and he states that he now refuses to sign because he has had an opportunity to speak with his girlfriend and mother and they both think it is a bad deal.
Should you:
a. Call opposing counsel and tell them that your client has refused to
sign so it looks like you have to have a hearing. b. Counsel your client to strongly consider signing the document
since it was agreed upon. c. Withdraw from the case. d. Other.
5. You schedule a hearing and in the eleventh hour before the case is called
an agreement is reached. You read the agreement into the record and the judge asks opposing counsel to prepare and circulate for signature since it is an agreed order. You receive the drafted agreed order along with a letter from opposing counsel requesting that the location for the exchanges be added because although the parties agreed to meet halfway, there was no exact location stated on the record. You check with Client and Client says, "No, why should I make anything easy for her, she should have to file a motion if she wants a set location."
Should you:
a. Have a discussion with Client regarding the cost/benefit analysis
of going back to court on this type of issue and explore if there is some alternative that would be acceptable.
b. Tell opposing counsel, "No" as directed by Client. c. Withdraw from the case. d. Other.
III. SCENARIO #3
Client retains you to assist her in obtaining unsupervised parenting time with her two children. The children were removed from Client's custody by the Cabinet for Health and Family Services nine months ago after Client was arrested for DUI while the children were in the car with her. Client informs you that she began drinking heavily after the break-up of her marriage. She had problems coping with her new life and responsibilities as a single mom. Her family doctor prescribed her medication to alleviate the symptoms she was having, but she stopped taking the medication because it made her sleepy. She provides you with documentation that demonstrates she successfully completed a rehab program and is following all after-care recommendations. Based on this
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documentation, you file a motion asking for her parenting time to be unsupervised. 1. Which psychiatric diagnosis may be considered in this case?
a. Bipolar Disorder.
b. Borderline Personality Disorder.
c. Depression.
d. Substance abuse.
e. None. At court, an Agreed Order is entered whereby Client will begin unsupervised parenting time so long as she refrains from using alcohol and she submits to random breathalyzer screenings as proof. After several weeks of complying with the Agreed Order, you learn that Client has failed to show up for her last three breathalyzer screenings. You schedule a meeting with her to discuss this issue and learn that Client has been drinking alcohol. She explains to you that it is not during her parenting time and only in social settings. She is adamant that she no longer has a problem with alcohol, but admits that her parents are not aware of her drinking. When you explain the negative implications that this will have on her parenting time with her children, she begins crying. 2. You are concerned about Client's drinking and her emotional state.
Should you:
a. Demand that Client re-enter rehab. b. Encourage Client to establish a relationship with a mental health
professional. c. Condition your continued representation on Client participating in
therapy. d. Do nothing.
A few days later, Client's father comes into your office to pay Client's outstanding balance. He asks you if Client is doing well and if she is refraining from drinking alcohol. 3. How do you proceed?
a. Admit to Client's father that Client has returned to drinking alcohol and you are concerned about her well-being.
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b. Tell him that Client is doing well and you are proud of her progress (after all, you don't want to do anything to jeopardize Client's parenting time with her children).
c. Decline to engage in conversation with him. d. Other
4. Is it relevant that Client's father, and not Client, is the person who is
paying for your services?
a. Yes.
b. No.
c. Maybe. At the next court date to review Client's compliance with the Agreed Order, you and Client are walking into the courtroom when she says to you "Don't tell the Judge that I have been drinking." 5. How do you proceed?
a. Immediately request that the Judge allow you to withdraw as counsel for Client.
b. Advise Client not to answer if asked whether she has been
consuming alcohol. c. When asked by the Judge, you disclose that Client has been
consuming alcohol, but you also provide mitigating facts to explain.
d. Other.
6. How would you proceed if no one directly asked you or Client about Client
consuming alcohol?
a. You would not disclose that Client has been drinking. b. You would disclose that Client has been drinking. c. Other.
IV. SCENARIO #4
Wife retains you in a pending divorce. Husband has filed and Wife was served thirty days ago. You call opposing counsel and request time to file a Response. You prepare the Response and email it to Wife to review. Days go by and there is no response. You finally speak with Wife, and she tells you that she sees no point in doing anything and that she thinks she should just let him have whatever
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he wants including custody of the kids. It is too stressful to fight and argue. She caused the divorce by having multiples affairs and this is her fourth marriage. She thinks there is something wrong with her because she "can't keep a man." Since he has filed, she has not been sleeping and is worrying about the case constantly so it is easier to ignore it. 1. Which psychiatric diagnosis may be considered in this case?
a. Bipolar Disorder.
b. Borderline Personality Disorder. c. Depression.
c. Substance abuse.
e. Psychosis or delusions. 2. How should you proceed?
a. Advise her to seek counsel from a mental health provider. b. Request additional time from opposing counsel. c. Have a discussion with her on why it is important to move forward. d. Withdraw from the case. e. A, B, and C.
3. Wife's mother calls your office to tell you that she has been placed in
Eastern State Hospital involuntarily because she has been diagnosed as bipolar and has had suicidal ideations. She will be available by phone, but was not coherent when she was committed. Mother does not believe that she is able to act in her best interest. You speak with her and agree that she is unable to make proper decisions.
Should you:
a. Proceed with the case and let Mother make the decisions on
Wife's behalf. b. Ask the court for a Guardian Ad Litem to be appointed to
represent her best interests. c. Advise Mother to seek her own counsel about possible options for
being appointed Guardian and/or Conservator.
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d. Withdraw from the case. e. Other.
V. SCENARIO #5
Mother retains you for a new custody matter. She has a one year old son and is not married to Father. She and Father lived together for the first six months of the child's life and then they split, both moving in with their parents. Father has inquired about seeing the child but Mother has refused unless she is present. Father has filed a petition to establish custody and for parenting time. Father is requesting joint legal custody and parenting time every Tuesday evening and every other weekend. Mother is adamantly opposed. She says that Father is unfit but gives no particular reason. She seems very upset that he has a new girlfriend and still "parties." 1. Opposing counsel contacts you with a proposed and reasonable
temporary parenting time with the child. Mother says that she will absolutely not allow any parenting time unless forced to do so. Should you:
a. Copy and paste the email that Mother has sent you telling you that
she does not agree to any parenting time when she is not present and send it to opposing counsel.
b. Have a discussion with Mother asking her to explain her hesitation
and try to come up with a proposal she can agree to where she feels comfortable.
c. Pressure Mother into agreeing to Father's proposal. d. Other.
2. Mother insists on seeking sole legal custody despite having no basis
other than, "it is not what is best of the child." Should you:
a. Counsel her on the most likely outcome and try to brainstorm a resolution that is more reasonable.
b. Discuss with Mother the concerns she has and then seek an
agreement that may address her concerns more appropriately rather than seeking sole custody.
c. Go to trial on the issue and seek sole custody. d. Both A and B. e. Other.
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4. Which psychiatric diagnosis may be considered in this case?
a. Bipolar Disorder.
b. Borderline Personality Disorder.
c. Depression.
d. Substance abuse.
e. Other.
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SUPREME COURT RULE 3.130 – RULES OF PROFESSIONAL CONDUCT http://www.kybar.org/?SCR3
SCR 3.130 Kentucky Rules of Professional Conduct SCR 3.130 (1.0) Terminology SCR 3.130 (1.1) Competence SCR 3.130 (1.2) Scope of representation and allocation of authority between client
and lawyer SCR 3.130 (1.3) Diligence SCR 3.130 (1.4) Communication SCR 3.130 (1.5) Fees SCR 3.130 (1.6) Confidentiality of information SCR 3.130 (1.7) Conflict of interest: current clients SCR 3.130 (1.8) Conflict of interest: current clients; specific rules SCR 3.130 (1.9) Duties to former clients SCR 3.130 (1.10) Imputation of conflicts of interest: general rule SCR 3.130 (1.11) Special conflicts of interest for former and current government
officers and employees SCR 3.130 (1.12) Judge, arbitrator, mediator or other third-party neutral SCR 3.130 (1.13) Organization as client SCR 3.130 (1.14) Client with diminished capacity SCR 3.130 (1.15) Safekeeping property SCR 3.130 (1.16) Declining or terminating representation SCR 3.130 (1.17) Sale of law practice SCR 3.130 (1.18) Duties to prospective client COUNSELOR SCR 3.130 (2.1) Advisor SCR 3.130 (2.2) Deleted SCR 3.130 (2.3) Evaluation for use by third persons SCR 3.130 (2.4) Lawyer serving as third-party neutral ADVOCATE SCR 3.130 (3.1) Meritorious claims and contentions SCR 3.130 (3.2) Expediting litigation SCR 3.130 (3.3) Candor toward the tribunal SCR 3.130 (3.4) Fairness to opposing party and counsel SCR 3.130 (3.5) Impartiality and decorum of the tribunal SCR 3.130 (3.6) Trial publicity SCR 3.130 (3.7) Lawyer as witness SCR 3.130 (3.8) Special responsibilities of a prosecutor SCR 3.130 (3.9) Advocate in nonadjudicative proceedings
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CODE OF PROFESSIONAL COURTESY www.kybar.org/?procourtesy
Attorneys are required to strive to make the system of justice work fairly and efficiently. In carrying out that responsibility, attorneys are expected to comply with the letter and spirit of the applicable Code of Professional Responsibility adopted by the Supreme Court of Kentucky. The Code of Professional Courtesy is intended as a guideline for lawyers in their dealings with their clients, opposing parties and their counsel, the courts and the general public. This Code is not intended as a disciplinary code nor is it to be construed as a legal standard of care in providing professional services. Rather, it has an aspirational purpose and is intended to serve as the Kentucky Bar Association's statement of principles and goals for professionalism among lawyers. 1. A lawyer should avoid taking action adverse to the interests of a litigant known to
be represented without timely notice to opposing counsel unless ex parte proceedings are allowed.
2. A lawyer should promptly return telephone calls and correspondence from other
lawyers. 3. A lawyer should respect opposing counsel's schedule by seeking agreement on
deposition dates and court appearances (other than routine motions) rather than merely serving notice.
4. A lawyer should avoid making ill-considered accusations of unethical conduct
toward an opponent. 5. A lawyer should not engage in intentionally discourteous behavior. 6. A lawyer should not intentionally embarrass another attorney and should avoid
personal criticism of other counsel. 7. A lawyer should not seek sanctions against or disqualification of another attorney
unless necessary for the protection of a client and fully justified by the circumstances, not for the mere purpose of obtaining tactical advantage.
8. A lawyer should strive to maintain a courteous tone in correspondence, pleadings
and other written communications. 9. A lawyer should not intentionally mislead or deceive an adversary and should
honor promises or commitments made. 10. A lawyer should recognize that the conflicts within a legal matter are professional
and not personal and should endeavor to maintain a friendly and professional relationship with other attorneys in the matter. In other words, "leave the matter in the courtroom.
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11. A lawyer should express professional courtesy to the court and has the right to expect professional courtesy from the court.
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