Presentation on theme: "Interactive Ethical Issues in Intake and Hotline Services Paula Pierce David Godfrey."— Presentation transcript:
Interactive Ethical Issues in Intake and Hotline Services Paula Pierce David Godfrey
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
Getting Started Muted Raise Your Hand Questions Polls Recorded
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 time Important Decisions Pressure to decide / advise
Different kind of an ethics program Video Clips Polls Questions – raise your hand Suggestions Most 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 havent seen the form You dont know what the car is Capacity / Undue influence Unintended impact on public benefits eligibility
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
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
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
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
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
Competent Representation Most basic ethical duty Know the facts Know the law Know 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
Quick Raise of Hands? Have you ever talked a client through completing a form over the phone?
Challenges with Pat? Capacity Literacy Poorly worded form Can 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 law Competent 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 UPL Form 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 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
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 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
Video Clip 3: Carlos http://www.youtube.com/watch?v=kz0vOp ZePoc http://www.youtube.com/watch?v=kz0vOp ZePoc
Raise Hands Does your hotline have someone trained to assist victims of domestic violence?
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
What are the ethical challenges presented? Confidentiality Empowering the client to make an informed decision
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.
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
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
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 Police Local Courts (court personnel and judges) Treatment Confidentiality Your past experience – known changes Cultivate contacts with Police and Courts before you need them
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
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 consent Work with DV specialists that you know and trust to protect Carloss confidence All the above
Video Clip 4: Sally http://www.youtube.com/watch?v=JfZpyx9 Gn_E http://www.youtube.com/watch?v=JfZpyx9 Gn_E
Quick Raise Your Hand! If you have ever had a Sally as your client?
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
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 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
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 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
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
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