Interactive Ethical Issues in Intake and Hotline Services

1. Interactive Ethical Issues in Intake and Hotline Services Paula Pierce David Godfrey

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

3. Getting Started • Muted • Raise Your Hand • Questions • Polls • Recorded

4. Why Ethics? • Protect Lawyers and Clients • Model Rules of Professional Conduct • State variations • California has a unique system • Baseline Standards • Guidance

5. Ethics in Hotline Work • Limited time • Important Decisions • Pressure to decide / advise

6. Different kind of an ethics program • Video Clips • Polls • Questions – raise your hand • Suggestions • Most likely model rules

7. I just need a quick answer! • http://youtu.be/hJSSYjknHoM • Bob Smith

8. Quick Raise of Hands! • Would you say, yes, the form is from the Department of Motor Vehicles, go ahead and use it?

9. Sounds Simple Enough • What are the risks of just saying Yes? • You haven’t seen the form • You don’t know what the car is • Capacity / Undue influence • Unintended impact on public benefits eligibility

10. Poll: What is the most likely ethical issue? • Possible conflict of interest with sister • Competent representation • Can’t 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

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

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

13. Can’t 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

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

15. Competent Representation • Most basic ethical duty • Know the facts • Know the law • Know the client • See rule 1.1

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

17. Video Clip 2 - Pat • http://youtu.be/PcxrXMmWobM

18. Quick Raise of Hands? • Have you ever talked a client through completing a form over the phone?

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

20. Poll: What is the most likely ethical challenge? • Conflict with son • Unauthorized practice of law • Competent representation • Client under a disability

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

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

23. Competent Representation • Do you know • Law • Facts • Client • See Rule 1.1

24. Raise Hand • Under the circumstances, competent representation is not offering Pat advice over the phone? • Raise your hand if you agree

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

26. Raise your hand if you agree • Given time Pat can likely provide enough information to knowingly complete the form?

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

28. Video Clip 3: Carlos • http://www.youtube.com/watch?v=kz0vOpZePoc

29. Raise Hands • Does your hotline have someone trained to assist victims of domestic violence?

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

31. What are the ethical challenges presented? • Confidentiality • Empowering the client to make an informed decision

32. Client-Lawyer RelationshipRule 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.

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

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

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

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

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

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

39. Risk of escalating violence • The research says yes, the risk is real • Urge changes for his safety

40. How would you help Carlos? • Protect his confidence • Seek fully informed consent • Work with DV specialists that you know and trust to protect Carlos’s confidence • All the above

41. Video Clip 4: Sally • http://www.youtube.com/watch?v=JfZpyx9Gn_E

42. Quick Raise Your Hand! • If you have ever had a “Sally” as your client?

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

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

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

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

47. Poll: Based on Sally’s 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

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

49. Links for Video Clips • Scenario 1 – Bob • http://youtu.be/hJSSYjknHoM • Scenario 2 – Pat • http://youtu.be/PcxrXMmWobM • Scenario 3 – Carlos • http://www.youtube.com/watch?v=kz0vOpZePoc • Scenario 4 – Sally Smith • http://www.youtube.com/watch?v=JfZpyx9Gn_E

50. Thank You!