Attunement: speak “therapish.” If you believe your client is experiencing delusions or paranoia, it is important to do some further research on the best methods of talking to someone in this state. For example, a great therapist I know told me confronting the truth of a delusion will likely make the client more scared, defensive and very upset. In my experience, the best approach is to validate their feelings of fear and insecurity and help them problem solve how they can find safety. Attune to what they are telling you — they are scared, not sleeping and incredibly stressed out. Maintain a calm affect, don’t crowd their personal space and let them know that you can see they are really scared. Then, explain that you have not been able to find evidence that supports their claim, you understand they are still very worried and feel unsafe. Just Google “How to talk to someone experiencing delusions” and you will find numerous helpful articles with techniques to have this conversation. Their experience is real for them and you may be able to connect them to other resources that will actually help them get better and stay safe. Find a helper. See if they are willing to include a trusted family member or friend. Have the client sign an authorization for you to share information about their case with someone else and get on the phone with that person ASAP. Getting family or a trusted friend involved sooner rather than later may also move the process toward a guardianship or conservatorship if the client needs this level of support. The standard necessary to get a guardian/conservator on board, especially if the protected person doesn’t want it, is quite high. It’s also a relatively complex process. I had several cases where a family member is initially welcomed into the process, but their involvement doesn’t last long and the release gets revoked. Rarely have I contacted a family member or friend who was unaware that something was wrong with their loved one. Review the relevant Rules of Professional Conduct: These are the ones I review on the regular: Rules 1.6 Confidentiality of Information, 1.14 Client with Diminished Capacity. 1.16 Declining or Terminating Representation, 3.1 Meritorious Claims and Contentions, and 3.3 Candor Toward the Tribunal. Sometimes there isn’t much you can do to help someone who really deserves to get help. I find it helpful to focus on making a difference for where this client is now, even if it’s small. • A PNC is brought in for divorce consultation by a helper and you can’t tell who is driving the case — is it the client or is the helper trying to help themselves? This can be challenging from the first moment the client walks in their door with their “helper.” An elder client with an adult child or neighbor as a helper requires some consideration. This helper made the appointment for your client and wheeled in the wheelchair. They expect to be part of the whole process because they are there to be an advocate. Yep, it’s suspicious. Have a one on one. I always spend some time meeting one on one with a client who brings a helper/buddy/special friend. I have a policy around confidentiality that I explain at the beginning of every consultation, and I let everyone in the room know that I will be speaking to my client alone as a matter of policy. This has resulted in different outcomes — sometimes the helper never gets invited back in the room and sometimes it’s a quick conversation and the helper is back in before they get to enjoy much more than a sip of coffee. Have a list of questions to ask a client that will help you go deeper with the client to make sure they know what they are seeing you for. I start by establishing rapport. Each conversation is a little different because the goal is to follow the client’s lead and see what they are capable of and whether they are tracking the conversation. I’ve never once had a client push back on this practice, and actually find it inspires confidence and respect between the client and counsel. Power of attorney. Most people don’t really know what these do and have an over-inflated idea of the “power” it really conveys. A Power of Attorney is not a conservatorship — you can’t make legal decisions for the person who gave you a POA. What you can do is act as the agent for the person who granted you the authority. There are several different kinds of POAs. If someone walks in the door with one you should do your due diligence to assess whether both parties have a mutual understanding about the goal and repercussions of the POA. I won’t take substantive instructions on a legal case from a POA for a client, and I won’t use the POA to send communication to and receive communication from a client. I will work with that POA on gathering relevant discovery documents the client may not be able to get on their own, as well as other procedural elements of a case. A POA can be a great asset but, in my experience, they tend to be informally executed and not well understood by the parties to it. Conservatorships. In a family law case, I am primarily concerned with whether or how a conservator may play a part. Conservators manage the financial and legal affairs of a person as opposed to a guardian who manages the body of the person. It can be a difficult process Clients With Diminished Capacity continued from p. 47 48 Trial Lawyer | Summer 2024
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