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: 2013 CIVIL COMMITMENT cONFERENCE : WORKING WITH CHILD CLIENTS: Ethics 3:30-4:30

: 2013 CIVIL COMMITMENT cONFERENCE : WORKING WITH CHILD CLIENTS: Ethics 3:30-4:30. Judith L. Kornegay, Attorney Rocky Mount, NC 252-937-6343 galaattyjlk@aol.com. Analytical framework. for dilemmas common to representing children and adults with mental health disorders.

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: 2013 CIVIL COMMITMENT cONFERENCE : WORKING WITH CHILD CLIENTS: Ethics 3:30-4:30

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  1. :2013 CIVIL COMMITMENT cONFERENCE: WORKING WITH CHILD CLIENTS:Ethics 3:30-4:30 Judith L. Kornegay, Attorney Rocky Mount, NC 252-937-6343 galaattyjlk@aol.com

  2. Analytical framework for dilemmas common to representing children and adults with mental health disorders

  3. Analytical framework for dilemmas common to representing children and adults with mental health disorders

  4. analytical framework I-Know & fulfill your role. II-Know law & rules. III-Determine the facts. IV-Apply knowledge/skills to pre-trial preparation, advocacy at the hearing, and for post-hearing duties.

  5. I-Know & fulfill your role. A. The N. C. Rules of Professional Conduct provide the ethical framework of legal representation.

  6. I-Know & fulfill your role. NOTE: The North Carolina State Bar Rules of Professional Conduct and the adopted ethics opinions of the North Carolina State Bar are the property of the North Carolina State Bar.

  7. I-Know & fulfill your role. A. n.c. rULES OF pROFESSIONALcONDUCT 1. Advocate competently. Rule 1.1 requires an attorney to be competent to handle the legal matter involved. Competence includes knowledge, skills, and adequate preparation and attention to the case. Competence must be maintained.

  8. I-Know & fulfill your role.A. n.c. rULES OF pROFESSIONALcONDUCT 2. Scope of Representation and Allocation of authority between client and attorney Rule 1.2 delineates the allocation of authority between client and attorney, requiring that the attorney communicate effectively with the client to determine the client’s “decisions concerning the objectives of the representation” and to “consult with the client as to the means by which they are to be pursued.”

  9. I-Know & fulfill your role.A. n.c. rULES OF pROFESSIONALcONDUCT Clients decide the objectives of litigation; attorneys determine the means.

  10. N.C. Rules of professional conduct: A. n.c. rULES OF pROFESSIONALcONDUCT 3.Advocate with reasonable diligence and promptness. Rule 1.3 requires an attorney to provide zealous advocacy, to “act with reasonable diligence and promptness in representing a client.” The attorney must “pursue the matter on behalf of a client despite opposition…and take whatever lawful and ethical measures are required to vindicate a client’s cause of endeavor”

  11. N.C. Rules of professional conduct:A. n.c. rULES OF pROFESSIONALcONDUCT 4.Communicate promptly and effectively with clients. Rule 1.4 requires attorneys to communicate with their clients. This includes: (1) Promptly informing the client of anything to which they must consent;

  12. N.C. Rules of professional conduct:A. n.c. rULES OF pROFESSIONALcONDUCT (2) Reasonably consulting “with the client about the means by which the client’s objectives are to be accomplished”; (3) Keeping him or her informed of the status of the case; (4) “Promptly complying with requests for information”;

  13. N.C. Rules of professional conduct:A. n.c. rULES OF pROFESSIONALcONDUCT (5) Explaining if the ethical rules prevent any requested assistance; (6) Explaining “a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation”.

  14. N.C. Rules of professional conduct:A. n.c. rULES OF pROFESSIONALcONDUCT The attorney must have “reasonable communication” with the client under Rule 1.4: (1) so the client is fully informed, (2) can determine the objects of the case, and (3) give informed consent.

  15. N.C. Rules of professional conduct:A. n.c. rULES OF pROFESSIONALcONDUCT Comments to the rule note that the usual attorney-client situation is one in which the lawyer is providing information that is “appropriate for a client who is a comprehending and responsible adult”, but acknowledges that “fully informing a client to this standard may be impracticable, for example, where the client is a child or suffers from diminished capacity” (See Comments 6 to the Rule).

  16. N.C. Rules of professional conduct:A. n.c. rULES OF pROFESSIONALcONDUCT What communication is reasonable with a minor client, or one with a mental disorder, will depend on the client’s age; mental status; education; ability to comprehend, focus, or exercise self control; and willingness to participate.

  17. N.C. Rules of professional conduct:A. n.c. rULES OF pROFESSIONALcONDUCT At the least, unless it is not reasonable for the client, the client should be informed of: (1) the nature of the case (2) what will happen (3) the evidence (4) collateral consequences (5) right to have records expunged at 18

  18. N.C. Rules of professional conduct:A. n.c. rULES OF pROFESSIONALcONDUCT Rule 1.4 also takes into account that it may be necessary or prudent to withhold information from a client (e.g., a psychiatrist says it would be harmful to the minor to reveal to him or her the diagnosis/medical evidence).

  19. N.C. Rules of professional conduct:A. n.c. rULES OF pROFESSIONALcONDUCT 5. Preserve client confidentiality. Rule 1.6 mandates maintaining attorney/client confidentiality, absent informed consent to disclose it. Any information gained during the course of representation is confidential.

  20. N.C. Rules of professional conduct:A. n.c. rULES OF pROFESSIONALcONDUCT “’Informed consent denotes the agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation appropriate to the circumstances.’” Rule 1.0(f), N.C. Rules of Professional Conduct.

  21. N.C. Rules of professional conduct:A. n.c. rULES OF pROFESSIONALcONDUCT Written waiver of consent give an attorney the most protection.

  22. N.C. Rules of professional conduct:A. n.c. rULES OF pROFESSIONALcONDUCT Attorney cannot make disclosure that would lead a 3rd party to discover confidential information.

  23. N.C. Rules of professional conduct:A. n.c. rULES OF pROFESSIONALcONDUCT Rule 1.6 extends to people the attorney supervises or who have privy to the information in the course of their employment or contracted services with the attorney/firm.

  24. N.C. Rules of professional conduct:A. n.c. rULES OF pROFESSIONALcONDUCT Attorney must take steps to minimize the risk of disclosing confidential client information while using any kind of unsecure method of communication, including mobile or cordless telephones or electronic communication (e.g. faxes).

  25. N.C. Rules of professional conduct:A. n.c. rULES OF pROFESSIONALcONDUCT Attorney must take reasonable care to prevent disclosure of protected information in metadata during electronic communication.

  26. N.C. Rules of professional conduct:A. n.c. rULES OF pROFESSIONALcONDUCT The duty of preserving confidentiality continues after the representation is terminated.

  27. N.C. Rules of professional conduct:A. n.c. rULES OF pROFESSIONALcONDUCT Take care not to disclose confidential client health information, including information about communicable diseases, without written consent.

  28. N.C. Rules of professional conduct:A. n.c. rULES OF pROFESSIONALcONDUCT The attorney has discretion about whether to report crimes that the client discloses he or she plans to commit or that he or she has committed child abuse or neglect. Discretion can also be used about warning 3rd parties the client plans to harm.

  29. N.C. Rules of professional conduct:A. n.c. rULES OF pROFESSIONALcONDUCT Unless the client instructs otherwise or special circumstances limit the attorney’s authority, the attorney “is impliedly authorized to make disclosures about a client when appropriate in carrying out the representation*.” Comment 5 to Rule 1.6. *Such as, that a fact cannot be disputed....

  30. N.C. Rules of professional conduct:A. n.c. rULES OF pROFESSIONALcONDUCT 98 FEO 18 allows disclosure of a minor client’s confidential information to his or her parent if the parent is the minor’s legal guardian and disclosure is necessary “to make a binding legal decision about the subject matter of the representation”. This is unlikely to apply in VAM/IVC cases where there is an inherent adversarial relationship between parent and child. Written consent of the client is always prudent before any disclosure.

  31. N.C. Rules of professional conduct:A. n.c. rULES OF pROFESSIONALcONDUCT There are exceptions to the confidentiality rule (see Appendix to manuscript). The safety of the client, attorney, and court should be exception as well.

  32. N.C. Rules of professional conduct:A. n.c. rULES OF pROFESSIONALcONDUCT 6. Avoid conflicts of interest. Rule 1.7 (also 1.8 and 1.9) prohibits attorneys from representing clients if a concurrent conflict of interest or comes to exist, absent informed consent, confirmed in writing if the conflict is consentable.

  33. N.C. Rules of professional conduct:A. n.c. rULES OF pROFESSIONALcONDUCT “A concurrent conflict of interest exists if: (1) the representation of one client will be directly adverse to another client; or

  34. N.C. Rules of professional conduct:A. n.c. rULES OF pROFESSIONALcONDUCT “A concurrent conflict of interest exists if: (2) the representation of 1 or more clients may be materially limited by the lawyer’s responsibilities to another client or a former client, or a third person, or by a personal interest of the lawyer.”

  35. N.C. Rules of professional conduct:A. n.c. rULES OF pROFESSIONALcONDUCT There is an inherent conflict of interest between parent and child in VAM/IVC cases in which the parent consents to admission or files or supports the petition or continued admission. Beware of the risk inherent conflict of interest existing or arising when asked to be retained by a parent to represent a child in a VAM/IVC matter.

  36. N.C. Rules of professional conduct:A. n.c. rULES OF pROFESSIONALcONDUCT The duty to avoid conflicts of interest continues after the representation is terminated.

  37. N.C. Rules of professional conduct:A. n.c. rULES OF pROFESSIONALcONDUCT 7. Advocacy for clients with diminished capacity. Rule 1.14 concerning representing clients with diminished capacity (including minors) requires attorneys “as far as reasonably possible, [to] maintain a normal client-lawyer relationship with the client.”

  38. I-Know & fulfill your role.B. Statutory Authority 1. Voluntary admission of a minor. The N.C.G.S. 122C-224.2 mandates appointment of counsel for the minor respondent in voluntary admission of a minor case (The parent/guardian of the minor may chose and hire a private attorney; however, privately retained counsel should beware of any ethical issues which may be present).

  39. I-Know & fulfill your role.B. Statutory Authority 1. Voluntary admission of a minor: The N.C.G.S. 122C-221-G.S.122C-224.7; 2. Involuntary Commitment (Mental Illness): G.S. 122C-251-G.S. 122C-277. 3. Substance Abuse Commitment: G.S. 122C-281-G.S. 122C-293.

  40. I-Know & fulfill your role.B. Statutory Authority 4. Representation of minors in VAM/IVC cases is inherently different than in civil litigation or other special proceedings. In other types of litigation minors usually sue by a guardian ad litem as well as having an attorney. In VAM, IVC, and SAC, counsel’s role is that of attorney-at-law and there is no guardian ad litem provided for.

  41. I-Know & fulfill your role.B. history & early case law Consider the context in which the IVC laws were rewritten in 1973: 1. Portions of the IVC statutes were declared unconstitutional during the height of the civil rights movement. 2. Prior to 1973, the IVC laws were a rubber stamp procedure providing no due process for the respondent.

  42. I-Know & fulfill your role.B. history & early case law In Re Hayes, 18 N.C. App. 560, 197 S.E.2d 582 (1973), declared the involuntary commitment statutes unconstitutional.

  43. I-Know & fulfill your role.B. history & early case law 04/14/1969-17 year old Gracie Mae Hayes was hospitalized at John Umstead Hospital under an MD affidavit for emergency hospitalization saying : “I have carefully examined Gracie Mae Hayes...and believe her to be suddenly (homicidal) or (suicidal), or dangerous to himself or other” and certified that she “should be taken into protective custody and transported immediately to John Umstead Hospital...” In re Hayes

  44. I-Know & fulfill your role.B. history & early case law 2 MDs (1 was the MD who signed the affidavit) signed a statement saying they examined Ms. Hayes and “believed her ‘to be suffering from (mental illness) or (inebricay) and to be...[in their opinions] a fit subject for admission into a psychiatric hospital.” In re Hayes

  45. I-Know & fulfill your role.B. history & early case law 04/28/1969 notice of hearing was served on a hospital staff member for respondent at 3:00 PM and a hearing was held at 3:50 PM before the clerk of court. The evidence was the MD affidavit, 2 MD statements, and a DSS SW affidavit saying the SW “believed Miss Hayes to be mentally ill and ‘a fit subject for admission into a psychiatric hospital’”. In re Hayes

  46. I-Know & fulfill your role.B. history & early case law There was an unsigned, undated “Medical Questionnaire for Physician” saying “that the conduct of the patient had been to leave ‘home several days at a time...having intercourse with several members of (the) community sustaining vaginal bleeding endangering health’”, had prior inpatient. treatment, is not a substance abuser, had no history of suicide attempts/threats, or attempting homicide.

  47. I-Know & fulfill your role.B. history & early case law 04/28/69-Under G.S. 122-63, Gracie Mae Hayes was committed for observation and treatment for not more than 180 days.

  48. I-Know & fulfill your role.B. history & early case law 10/13/69, the hospital recommended further commitment. 11/6/69-Hayes waived her right to appear and protest commitment. The Clerk ordered that she be hospitalized “for a minimum necessary period under the law.”In re Hayes

  49. I-Know & fulfill your role.B. history & early case law 10/12/9872 application for writ of habeas corpus was filed for Gracie Mae Hayes. 10/16/72 Superior Court Judge ordered her release because: 1- She had no assistance of counsel at any of the proceedings; and 2-Her restraint had been illegal because G.S. 122-59, G.S. 122-63, & G.S. 122-65 were unconstitutional because:

  50. I-Know & fulfill your role.B. history & early case law “[T]hey do not require adequate notice, counsel, witnesses and a hearing before a judicial officer at all stages of procedures which may result in deprivation of liberty, contrary to the mandates of due process of law.”

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