Interactive Ethical Issues in Intake and Hotline Services Paula
Pierce David Godfrey Slide 2 Center for Elder Rights Advocacy
Service of Elder Law of Michigan Partner in the National Legal
Resource Center Technical Assistance Provider to Senior Legal
Helplines and other Legal and Aging Services Advocates nlrc.aoa.gov
legalhotlines.org Slide 3 Getting Started Muted Raise Your Hand
Questions Polls Recorded Slide 4 Why Ethics? Protect Lawyers and
Clients Model Rules of Professional Conduct State variations
California has a unique system Baseline Standards Guidance Slide 5
Ethics in Hotline Work Limited time Important Decisions Pressure to
decide / advise Slide 6 Different kind of an ethics program Video
Clips Polls Questions raise your hand Suggestions Most likely model
rules Slide 7 I just need a quick answer!
http://youtu.be/hJSSYjknHoM Bob Smith Slide 8 Quick Raise of Hands!
Would you say, yes, the form is from the Department of Motor
Vehicles, go ahead and use it? Slide 9 Sounds Simple Enough What
are the risks of just saying Yes? You havent seen the form You dont
know what the car is Capacity / Undue influence Unintended impact
on public benefits eligibility Slide 10 Poll: What is the most
likely ethical issue? Possible conflict of interest with sister
Competent representation Cant give advice about a gift Client under
a disability See Rule 1.7 Conflict Of Interest: Current Clients
Rule 1.1 Competence; Rule 1.14 Client With Diminished Capacity;
Rule 1.8 Conflict Of Interest Slide 11 Conflict with sister? Same
issue, different client Multiple clients on same or related issue
Same issue, past client Contrary to past client Contrary to current
client See: Rule 1.7 Conflict Of Interest Slide 12 Can you buy the
car from Bob? Raise your hand if you say Yes Business with a client
Only with proper disclosure Best to avoid See Rule 1.8 Conflict Of
Interest Slide 13 Cant give advice about a gift? Red herring answer
There is something about gifts in the rules Can you accept the car
as a gift from Bob? Raise hand if you think Yes See Rule 1.8
Conflict Of Interest (c) gifts Slide 14 Client Under a Disability
Always be aware Undue Influence To the extent possible maintain a
normal attorney client relationship Owe all duties to a client
under a disability No indication of any issue here See rule 1.14
Slide 15 Competent Representation Most basic ethical duty Know the
facts Know the law Know the client See rule 1.1 Slide 16 Poll: What
would you do? Refer to private bar to draft POA Ask to speak to
sister before giving advice Give caller advice on the phone about
whether he can use DMV form Don't give advice without getting more
facts Slide 17 Video Clip 2 - Pat http://youtu.be/PcxrXMmWobM Slide
18 Quick Raise of Hands? Have you ever talked a client through
completing a form over the phone? Slide 19 Challenges with Pat?
Capacity Literacy Poorly worded form Can you talk her son through
helping her See Rule 1.14 Client under a disability Slide 20 Poll:
What is the most likely ethical challenge? Conflict with son
Unauthorized practice of law Competent representation Client under
a disability Slide 21 Conflict with son? Conflicts area always a
possibility when talking to a third party about a client matter
Implicit waiver if she hands son the phone and says explain this to
him See Rule 1.7 Slide 22 Unauthorized Practice of Law If she is
doing it herself, it is assisted pro se Not UPL Form is designed
for consumer use Helping son, help her, might be seen as UPL Slide
23 Competent Representation Do you know Law Facts Client See Rule
1.1 Slide 24 Raise Hand Under the circumstances, competent
representation is not offering Pat advice over the phone? Raise
your hand if you agree Slide 25 Client Under a Disability Capacity
is a spectrum not an on/off switch What might be the issue Vision
Literacy Dementia Until we know more In a nutshell, Capacity is the
ability to make and communicate an informed decision See rule 1.14
Slide 26 Raise your hand if you agree Given time Pat can likely
provide enough information to knowingly complete the form? Slide 27
Poll: What is the best option for helping Pat? I can guide her
through this over the phone A face-to-face meeting with an advocate
Send her a letter with step-by-step written instructions on how to
complete the form Tell her son how to help his mother complete the
form Slide 28 Video Clip 3: Carlos
http://www.youtube.com/watch?v=kz0vOp ZePoc
http://www.youtube.com/watch?v=kz0vOp ZePoc Slide 29 Raise Hands
Does your hotline have someone trained to assist victims of
domestic violence? Slide 30 What are the legal issues and
challenges? Domestic violence Immediate safety and needs Longer
term safety Necessity of avoiding public disclosure Necessity of
avoiding family disclosure Slide 31 What are the ethical challenges
presented? Confidentiality Empowering the client to make an
informed decision Slide 32 Client-Lawyer Relationship Rule 1.6
Confidentiality Of Information (a) A lawyer shall not reveal
information relating to the representation of a client unless the
client gives informed consent, the disclosure is impliedly
authorized in order to carry out the representation or the
disclosure is permitted by paragraph (b). (b)(6) to comply with
other law or a court order; or (c) A lawyer shall make reasonable
efforts to prevent the inadvertent or unauthorized disclosure of,
or unauthorized access to, information relating to the
representation of a client. Slide 33 Poll: What are the risks of
the standard response to DV ie: file a police report ask the court
for a restraining order? (select all that apply) Carlos may not
want to do this A same sex couple is not entitled to protection
Fear of the system Risk of disclosure Risk of escalated violence if
Carlos does nothing Slide 34 Carlos may not want to do Many victims
of DV are reluctant to act DV experts can help empower Carlos
Explaining risks of doing nothing Exploring alternative options
Ultimately if Carlos says No No means No Slide 35 Same-sex Couples
are not protected State-by-state question Talk to an expert before
moving forward If not covered by DV statute explore alternative
options A battery is still a battery, even if it is not covered as
DV Even if covered as DV, must have level of comfort with police
and courts Comfort and accommodation in DV services Slide 36 Fear
of the system Local Police Local Courts (court personnel and
judges) Treatment Confidentiality Your past experience known
changes Cultivate contacts with Police and Courts before you need
them Slide 37 Poll: Would you? Refer immediately to DV hotline and
shelter Explain options and dangers Discuss "safety first plans"
with caller Call the police to report the crime Slide 38 Risk of
disclosure Outing is emotionally and financially damaging Carlos
could lose family, employment The decision to disclose, belongs to
the client under rule 1.6 Slide 39 Risk of escalating violence The
research says yes, the risk is real Urge changes for his safety
Slide 40 How would you help Carlos? Protect his confidence Seek
fully informed consent Work with DV specialists that you know and
trust to protect Carloss confidence All the above Slide 41 Video
Clip 4: Sally http://www.youtube.com/watch?v=JfZpyx9 Gn_E
http://www.youtube.com/watch?v=JfZpyx9 Gn_E Slide 42 Quick Raise
Your Hand! If you have ever had a Sally as your client? Slide 43
What are the challenges? Sounds like she has capacity Tells you she
wants to defend Started the process Has failed to follow through
Assisted pro se is always a challenge Assessing clients ability to
follow through is even harder See rule 1.14 Slide 44 Capacity
Client may not be under a disability But may not be able to follow
through Assessing ability to follow through is always a challenge
See Rule 1.14 and 1.4 communication with a client Slide 45 Assisted
pro se Always a challenge But helps many clients we can not
represent Keep it simple When did this case stop being simple?
Determine based on local procedure what cases are easy pro se and
what are not Develop step by step guides Slide 46 Poll: What should
you do with requests for assisted pro se? Help as much as you can
everyone deserves their day in court Nothing, once you start
helping, you are obligated to help all the way through Only advise
pro se for clients and issues that you feel will have a good chance
of success Slide 47 Poll: Based on Sallys current situation what is
the best option? Draft the motions, have her sign them, and file
them with the court for her Advise her to withdraw her defense Tell
her she needs to hire a private attorney to oppose sanctions
against her Connect her with a full service legal aid program or
pro bono attorney to represent her through the remainder of this
matter Slide 48 What ethical rules? 1.1 Competence 1.2 Scope of
representation 1.3 Diligence 1.4 Communication with a client 1.9
Duties to former clients 3.3 Candor toward the tribunal Slide 49
Links for Video Clips Scenario 1 Bob http://youtu.be/hJSSYjkn HoM
http://youtu.be/hJSSYjkn HoM Scenario 2 Pat http://youtu.be/PcxrXMm
WobM http://youtu.be/PcxrXMm WobM Scenario 3 Carlos
http://www.youtube.com/ watch?v=kz0vOpZePoc http://www.youtube.com/
watch?v=kz0vOpZePoc Scenario 4 Sally Smith http://www.youtube.com/
watch?v=JfZpyx9Gn_E http://www.youtube.com/ watch?v=JfZpyx9Gn_E
Slide 50 Thank You!
