STEP FORWARD - Shriver Center

By Richard P. Weishaupt, Guest Blogger 

What would a blog on ethics and legal aid discuss? While some might argue tongue in cheek that the terms are an oxymoron, most legal aid lawyers and other advocates are very concerned about being ethical in both the professional and the moral sense. This blog aims to be a practical guide to the Rules of Professional Responsibility and a forum for discussion of some of the more difficult problems that legal aid lawyers face. Too often the ethics training we experience as part of our continuing legal education requirements is geared to a practice that bears little resemblance to our day-to-day challenges. (This blog appears as a column in Clearinghouse Review: Journal of Poverty Law and Policy, published by the Shriver Center.)

It is my hope that this will not be the kind of blog that will discuss ever more fanciful hypotheticals, whose purpose seems designed to convey that legal ethics is so complicated that there are no clear answers. Rather, I will discuss ways to achieve the goal of legal services programs everywhere-to help people deal with the challenges of being poor in America and to ensure justice for our clients.

One of the difficult realities of legal aid practice is that we are often the law firm of last resort. Even if a private attorney were willing to represent your homeless client, would that lawyer understand the vagaries of Medicaid and whom to call to make sure your client is properly served? The legal aid office is often literally the only option in town. Thus we should do everything in our power to represent people within the bounds of our ethical obligations.

Being wary of creating unnecessary conflicts of interest is one way to assure that we do not unwittingly prevent people from accessing our services when they are most in need. Another frequent challenge is dealing responsibly with clients with diminished capacity. The American Bar Association’s Model Rules of Professional Conduct address this question as follows: “When a client’s capacity to make adequately considered decisions in connection with a representation is diminished, whether because of minority, mental impairment or for some other reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client” (American Bar Association, Model Rules of Professional Conduct, Rule 1.14 Client with Diminished Capacity, www.abanet.org/cpr/mrpc/mrpc_toc.html; the model rules have no legal effect, but they serve as the basis for most states’ rules of professional responsibility). While most legal aid advocates would agree with a formulation that tries to maintain a “normal” client-lawyer relationship, the rule is a bit vague, especially when the lawyer is sitting across from a severely mentally ill client and a judge is pressing the lawyer for an answer. At such times, it is best to have thought through the problem in advance.

An example from my own experience illustrates the benefit of advance planning. Into one of our two offices a client came complaining that a check-cashing agency was taking her and her husband’s Supplemental Security Income (SSI) check. The client revealed very little additional information as to why this would be, however, as she was largely incoherent, probably due to her mental illness. Her husband came into our other office and explained that, against his advice, his wife had deposited an invalid check that was likely part of a scam. Worse, the check-cashing agency, in cooperation with an out-of-state bank that could be accessed only through the agency, deposited the check and honored several checks before realizing that the check was fraudulent. Now the check-cashing agency and bank wanted not only the money they had paid out but also several steep fees imposed for insufficient funds.

The husband sought representation against the out-of-state bank and its charges, but he wanted to be made representative payee for his wife’s benefits. Initially intending to open a case, our staff interviewed him but later told him that his desire to be made representative payee could not be accommodated since we already represented his wife; appointing a representative payee for her would be against her interest. (Our conflict-checking software identified the potential problem, and perhaps the “conflict” identified colored our thinking more than it should have.) The initial response also was that we could have nothing to do with the husband because of that conflict.

However, it soon became clear that the wife’s mental status rendered her incompetent to make decisions or even understand what had happened. One would try to maintain a normal attorney-client relationship with the wife, pursuant to Rule 1.14, but one would rely heavily on the next of kin, the husband, especially since his funds were also affected. Rigid interpretation of the conflict rules not only made that representation impossible; it created a level of distrust between the husband and wife when they clearly had a common interest in undoing the result of the scam and the tactics of the check-cashing agency and out-of-state bank.

What could we have done differently? In this case the problem was that we lost sight of our primary mission and did not identify the couple’s common interests from the beginning. The better course would have been to get the couple together at the first signs of division-to identify their common goal and to avoid a divisive battle about who would control the SSI benefits. (Of course, hindsight is often 20/20. Counseling distraught people in a busy office is always a challenge, and it is easy to second-guess decisions that have to be made quickly and under pressure. Nonetheless, we can all learn from reviewing our actions to see if a different approach might have achieved better results.) Focusing on their common interests rather than what divided them was ethical and would have facilitated the easiest approach to a difficult and legally complicated case. Of course, if the couple could not agree, we would have had to make a difficult choice as to whom to represent and how to do so given the mental impairments present. But with better planning about how to represent couples and what a hit on a conflicts checker means, we could have achieved a better result with a lot less difficulty. We eventually resolved the matter and provided representation, but not as efficiently and smoothly as we might have.

I hope this blog will facilitate discussion of difficult cases and the challenges they present, and of how to ensure that legal services are delivered in a manner that is consistent with the highest professional standards and yet also recognizes the unique challenges of a legal aid practice. Raise other ethical dilemmas that legal aid lawyers face, and offer your own answers to these dilemmas. I look forward to hearing from you.

Tags: Access to Justice/Legal Services/Civil Gideon, Clearinghouse Review, ethics

This entry was posted on Wednesday, July 30th, 2008 at 1:49 pm and is filed under Clearinghouse Review. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.