Interactive Ethical Issues in Intake and Hotline Services

Paula PierceDavid Godfrey

Center for Elder Rights Advocacy

Service of Elder Law of MichiganPartner in the National Legal Resource

CenterTechnical Assistance Provider to Senior

Legal Helplines and other Legal and Aging Services Advocates

nlrc.aoa.gov legalhotlines.org

Getting Started

MutedRaise Your

HandQuestionsPollsRecorded

Why Ethics?

Protect Lawyers and Clients Model Rules of Professional Conduct

State variations California has a unique system

Baseline Standards Guidance

Ethics in Hotline Work

Limited timeImportant DecisionsPressure to decide / advise

Different kind of an ethics program

Video ClipsPollsQuestions – raise your hand SuggestionsMost likely model rules

I just need a quick answer!

http://youtu.be/hJSSYjknHoM Bob Smith

Quick Raise of Hands!

Would you say, yes, the form is from the Department of Motor Vehicles, go ahead and use it?

Sounds Simple Enough

What are the risks of just saying Yes? You haven’t seen the formYou don’t know what the car is Capacity / Undue influenceUnintended impact on public benefits

eligibility

Poll: What is the most likely ethical issue?

Possible conflict of interest with sisterCompetent representationCan’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

Conflict with sister?

Same issue, different clientMultiple clients on same or related issue Same issue, past client Contrary to past clientContrary to current client

See: Rule 1.7 Conflict Of Interest

Can you buy the car from Bob?

Raise your hand if you say Yes

Business with a client Only with proper disclosureBest to avoid

See Rule 1.8 Conflict Of Interest

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

Client Under a Disability

Always be awareUndue InfluenceTo 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

Competent Representation

Most basic ethical duty Know the factsKnow the lawKnow the client

See rule 1.1

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

Video Clip 2 - Pat

http://youtu.be/PcxrXMmWobM

Quick Raise of Hands?

Have you ever talked a client through completing a form over the phone?

Challenges with Pat?

Capacity Literacy Poorly worded formCan you talk her son through helping her

See Rule 1.14 Client under a disability

Poll: What is the most likely ethical challenge?

Conflict with son Unauthorized practice of lawCompetent representation Client under a disability

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

Unauthorized Practice of Law

If she is doing it herself, it is assisted pro se

Not UPLForm is designed for consumer use Helping son, help her, might be seen as

UPL

Competent Representation

Do you know Law Facts Client

See Rule 1.1

Raise Hand

Under the circumstances, competent representation is not offering Pat advice over the phone?

Raise your hand if you agree

Client Under a Disability

Capacity is a spectrum – not an on/off switch

What might be the issueVisionLiteracyDementia

Until we know more – In a nutshell, Capacity is the ability to

make and communicate an informed decision

See rule 1.14

Raise your hand if you agree

Given time Pat can likely provide enough information to knowingly complete the form?

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 advocateSend her a letter with step-by-step written

instructions on how to complete the formTell her son how to help his mother

complete the form

Video Clip 3: Carlos

http://www.youtube.com/watch?v=kz0vOpZePoc

Raise Hands

Does your hotline have someone trained to assist victims of domestic violence?

What are the legal issues and challenges?Domestic violenceImmediate safety and needs Longer term safety Necessity of avoiding public disclosureNecessity of avoiding family disclosure

What are the ethical challenges presented?ConfidentialityEmpowering the client to make an

informed decision

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.

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 thisA same sex couple is not entitled to

protection Fear of the system Risk of disclosure Risk of escalated violence if Carlos does

nothing

Carlos may not want to do

Many victims of DV are reluctant to actDV experts can help empower Carlos Explaining risks of doing nothingExploring alternative options Ultimately if Carlos says “No” –

No means No

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

Fear of the system

Local PoliceLocal Courts (court personnel and judges) TreatmentConfidentiality Your past experience – known changesCultivate contacts with Police and Courts

before you need them

Poll: Would you?

Refer immediately to DV hotline and shelter

Explain options and dangersDiscuss "safety first plans" with callerCall the police to report the crime

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

Risk of escalating violence

The research says yes, the risk is real Urge changes for his safety

How would you help Carlos?

Protect his confidence Seek fully informed consentWork with DV specialists that you know

and trust to protect Carlos’s confidence All the above

Video Clip 4: Sally

http://www.youtube.com/watch?v=JfZpyx9Gn_E

Quick Raise Your Hand!

If you have ever had a “Sally” as your client?

What are the challenges?

Sounds like she has capacityTells you she wants to defendStarted the processHas failed to follow through Assisted pro se is always a challengeAssessing clients’ ability to follow through

is even harder See rule 1.14

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

Assisted pro se

Always a challengeBut 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

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

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 herConnect her with a full service legal aid

program or pro bono attorney to represent her through the remainder of this matter

What ethical rules?

1.1 Competence 1.2 Scope of representation 1.3 Diligence1.4 Communication with a client 1.9 Duties to former clients 3.3 Candor toward the tribunal

Links for Video Clips

Scenario 1 – Bobhttp://youtu.be/

hJSSYjknHoMScenario 2 – Pathttp://youtu.be/

PcxrXMmWobMScenario 3 – Carloshttp://www.youtube.com/

watch?v=kz0vOpZePocScenario 4 – Sally Smithhttp://www.youtube.com/

watch?v=JfZpyx9Gn_E

Thank You!