Practical ideas for working with clients who may have diminished capacity by Annelisa Smith Apotential client walks into my office and sits at the conference room table. I’ve received a brief summary of the case issues from my intake person and I’m feeling my Marvel-level super-hero powers vibrating in my fingertips. I practice family law and I love to save the day. Family law requires a certain personality type — it’s hard work both emotionally and intellectually, and rarely are we praised by our colleagues for our enviable skill set. We’re scrappy, quirky and we know how to adjust strategy on the fly. We have squishy legal standards to prove like “best interests of the child” and “just and proper under all the circumstances”, and we try all of our cases to a judge who may or may not have had a bad burrito at lunch. Almost no other practice area offers these kinds of challenges all at the same time — soap opera drama with a serving of tax. We each must find that place within ourselves that motivates us to do this kind of work, otherwise we burn out and get sucked into other people’s poor life choices. If I had a nickel for every non-family law attorney who told me they could never practice family law.… Survive in a family law practice long enough and you will encounter a client with a capacity issue — mental health, substance abuse, age related decline and traumatic injuries impact our clients all the time. Supporting clients with big problems is par for the course in family law, as most of the litigants we work with are unable to solve their family problems without professional support. Surprisingly (or not), we aren’t trained mental health professionals. My law school didn’t have a class on working with clients with capacity issues and even if it had, I don’t know that I would have taken it. Fast forward to my 17th year of practice and I’ve learned a lot through trial and error. Luckily, once you realize something might be off with your client, there are great existing resources available to inform your approach. This is the logical first place to start. When a capacity question arises in my practice, my first go-to places include the Oregon State Bar Ethics Opinions1 and Chapter 18 of The Ethical Oregon Lawyer Bar Book.2 I want to share some of the repeating situations I’ve encountered in my practice and suggest some practical tools for how you might work through them. These are my tried-and-true tricks of the trade. They work for me and hopefully they can work for you. Ultimately, the best thing to do when a question of capacity arises is to call on your network of colleagues and work through the problem. And, just as I teach my associates, take the time to do your basic research about a question before you ask for help. My thoughts below might be one place to start for some creative ideas. • A potential new client (PNC) walks in the door with concerns of an abusive controlling spouse who is tracking their car and spying on their phone and computer activity. PNC is desperate for help. You sign the client up, start the case and quickly realize the client may be paranoid and experiencing delusions. Surprising or not, this scenario has repeated itself for me several times over the course of my practice. I work with a lot of survivors of domestic violence and these cases seem to find me. As a former juvenile dependency public defender, I’m generally inclined to sign anyone on to be a client who asks for my help and this kind of client really speaks to my caped crusader persona. One difference is that, in family law, there are no free lawyers — we don’t work for free (at least not on purpose). Do I sometimes rue the day I inflated my fee deposit hoping it would be too much for the client to afford only to have them pay in cash that day? Yes, I do. Takeaway: if you get a sense you won’t be able to help a client due to a capacity issue, don’t try and get out of it by increasing the amount of your initial fee deposit. ANNELISA SMITH focuses her practice on complex family and juvenile dependency cases. She is a founding partner of McKean Smith, 1140 SW 11th Ave, Ste 500, Portland, OR 97205. She can be reached at annelisa@ mckeansmithlaw.com and 503-567-7967. 46 Trial Lawyer | Summer 2024
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