Webinar Transcript: Practical Guidance and Ethics in Representing Disabled Clients Including Clients with Diminished Capacity
Disability Rights Education and Defense Fund
January 29, 2024

CLAUDIA CENTER: But welcome to our webinar. We're going to be talking about how to represent people with disabilities. Oh, here we go. "Practical Guidance and Ethics in Representing Disabled Clients, Including Clients with Diminished Capacity" or may be viewed as having diminished capacity. So again, I'm Claudia Center. DREDF's Legal Director, and I'm co?presenting with Ayesha Lewis, DREDF Staff Attorney. And we try to do this training once a year in January, right before everyone has their ethics credit, trying to fulfill before the deadline. Next slide. 

Okay. So this is a little overview of what we're going to be talking about today. I'm going to go over some of the ethical and legal principles that we want to keep in mind whenever we're thinking about how to best represent people with disabilities as lawyers. Ayesha is going to talk about some practical applications, some tips and tools and how supported decision making may be a tool in your toolbox for representing people with disabilities. Supported decision making often involves including a person as a supporter in the representation, and, of course, that's going to raise issues of attorney/client privilege. So I'm going to go over what we know about attorney/client privilege and how to try and balance those two things. I'm also going to be talking about protective action, which is something we mostly don't have in California. And then we're going to have lots of time for questions and answers. Next slide. 

Okay. The overview of ethical and legal principles in representing clients with disabilities. Next slide. 

So who are clients with disabilities? You know, when we first started thinking about people with disabilities in the sort of modern civil rights era, we really thought about people who use wheelchairs, people who are blind, people who are deaf, but now, you know, 30?plus years after the Americans with Disabilities Act, I think we all have a much broader view of what disabilities are and who our disabled clients may be. Next slide. 

So we know, particularly under, you know, state law, but even under federal law, which has become broader since 2008, clients with disabilities can include people with psychiatric disabilities, mobility disabilities, traumatic brain injury, autism, autistic people, or people with neurodiversity, chronic illnesses, which are, you know, tragically increasing in our era of COVID and long COVID. Cancer, dementia or Alzheimer's, sensory disabilities, like being blind or deaf. Learning disabilities, ADHD and intellectual and developmental disabilities. Next slide. 

AYESHA: Hello, Claudia, are you taking this?

CLAUDIA CENTER: We already did this slide, so you need to go forward. Okay. So do any of your clients have disabilities? Almost certainly some of your clients have disabilities. One in four adults nationwide have some kind of disability, and we know there are higher rates of disability among a lot of the populations that are represented by legal services organizations like DREDF, including Black and indigenous people, people in poverty, unhoused people. People in jail or in prisons, older adults and veterans. Next slide. 

So this is an image by TL Lewis who is a colleague of ours, and a wonderful leader, and it shows how poverty, trauma and disability are intertwined. It's a circle created by three arrows, and one arrow says "trauma," and it goes clockwise to a second arrow that says "disability," and then a third arrow that says "poverty" that creates the circle. And the idea of this image that these three factors are all intertwined in our society. So trauma can cause disability. Disability can cause poverty. Poverty can cause trauma, and so on. So things are very intertwined. Next slide. 

Okay. So here are some of the things you want to keep in mind when you're representing people with disabilities. So obviously disability nondiscrimination laws. We have the Americans with Disabilities Act, our most famous statute, and Title II covers state courts. And in California, our rule of court that governs reasonable accommodations is rule 1.100, and then Title III applies to law firms and non?profits and mostly lay organizations. Section 504 of the Rehabilitation Act covers federal agencies and federally funded entities, and so some legal services organizations have federal funds. The Unruh Civil Rights Act, 51 et seq, covers business establishments which includes most law firms, or we think includes law firms and organizations. And we also have government code 11135 which covers state agencies and state funded entities. So pretty much everyone should be covered by some disability nondiscrimination law in our legal landscape. Next slide. 

Okay. So what are the core principles of our nondiscrimination laws? So this is probably a recap for many of you, but we have nondiscrimination, obviously, is a core principle, and that would be no garden variety discrimination, like intentional discrimination. But also, no discrimination that we might think of as less intentional. So no policies or practices that screen out disabled clients, even if it's not intentional or even if it doesn't single out people with disabilities. We also want to provide reasonable accommodation to people with disabilities, so that's a change in how you do things in order to include a person with a disability. Related is that we want to provide effective communication. That means auxiliary aids exam services such as captions, sign language, plain language, which we're going to talk about, and so on. I'll also reference that Title II entities in Section 504 entities must meat a standard called Program Access which means that your entire program must be accessible to and usable by people with disabilities. Next slide. 

So there's also some California Rules of Professional Conduct that relate to serving people with disabilities. So nondiscrimination, rule 8.4.1. Competence, rule 1.1. The client makes the decisions, rule 1.2. The lawyer must communicate with the client, rule 1.4. So that's going to intersect with the effective communication. You must keep your communications confidential, recall 1.6, and no protective action without consent. And we'll talk about that. Next slide. 

Okay. So protective action ?? this seems out of the order. Is that possible? 

AYESHA: Yes. I'm sorry. 

CLAUDIA CENTER: That's okay. We'll just wait. Okay. Here we go. So rule 8.4.1 is, you know, that you can't refuse to represent or terminate representation using unlawful discrimination against people on the basis of protected characteristic. And that includes physical or mental disability. So that doesn't mean you have to represent someone just because they have a disability. You can still make your own decisions as a lawyer consistent with the other rules, but it's just that you're not supposed to discriminate in representation. Next slide. 

Okay. So rule 1.2 is about the allocation of responsibility in a representation agreement arrangement. And so you probably learned this in law school, that the lawyer is supposed to follow the client's decisions about the objectives of the representation. In other words, the client makes the big decisions about what are the goals, but the lawyer has authority over how to get there, and strategies and so on. The lawyer is supposed to reasonably consult with the client as to the means by which the objectives will be achieved, and then, you know, you need to communicate. That's rule 1.4. Next slide. 

Okay. So Rule 1.4 is really clear about communication, and I often go back to this rule. I think it helps me make sure I'm communicating properly with clients. So you need to promptly inform a client when disclosure or informed consent is required. You need to explain matters as reasonably necessary to perform ?? to permit, sorry, informed decisions. You want to keep the client reasonably informed about significant developments, and promptly comply with reasonable requests for information. And again, consult with the client about the means to achieve objectives, even though the lawyer is more the expert on the means. Next slide. 

So what's informed consent? It means that the client agrees to a plan of action after the lawyer has communicated and explained the relevant circumstances and the risks of the plan of action, whether those are actual risks or reasonably foreseeable, or actual adverse consequences or reasonably foreseeable adverse consequences. In other words, the pros and the cons. So I focus on this one because, you know, informed consent doesn't mean that a client understands every aspect of litigation or the rules of, you know, the California Rules of Court or the Federal Rules of Civil Procedure. It just means that the client needs to understand what the objective is, what the plan of action is and does the client agree with the plan of action, having some understanding of the pros and cons. So, you know, you kind of want to look at this to understand where the communication has to happen and how you measure capacity as a lawyer, the capacity of your clients. Next slide. 

Okay. Now I'm going to turn it over to Ayesha.

AYESHA LEWIS: Hello, everyone. Next we're going to explore some practical tips and tools for representing clients with disabilities. So the first tip and tool that we have is readily accessible lawyering. And as you can see, this is the Ed Roberts Campus. It's a universally designed building that's designed to be accessible to people with a wide range of disabilities. And so one of the ways that you can think about access is the physical space. Are you meeting with clients in a place that is accessible to them? Next, for readily accessible lawyering, you want to make your default practices accessible for a wide range of clients. And you're going to employ them, regardless of whether the client is known to have a disability. And so what are the components of readily accessible lawyering? One big one is plain language. You want to avoid legalese. You want to make sure that the implicit is explicit. Don't assume background knowledge, particularly about technical legal things. And then you want humility, curiosity attentiveness to clients. Finally, trauma awareness is important as well to make your lawyering accessible to clients, whether or not they have disabilities. And readily accessible lawyering is beneficial for all types of people. It's helpful for clients with disabilities, clients who aren't fluent in English, or if they're experiencing crisis or have limited bandwidth, such as when they're in jail, in the midst of trauma, facing extreme and complex situations like perhaps a divorce, or if they're undocumented. It's particularly helpful for clients who are children and who you can expect might need things to be particularly clear and not complicated so that they can understand what is going on. It's also helpful for mitigating the power differential between lawyers and the clients. And finally, it can help you build trust. And who is harmed by readily accessible lawyering? Absolutely no one. So it's really good for folks to adopt, regardless of whether you're representing a person with disabilities or a person that you know has a disability. When it comes to talking to clients about disabilities, it's important to be straightforward and concrete. Most people with disabilities, whether or not they self identify as such, they view their disabilities as an everyday part of their lives. It's not horrible or shameful. People aren't necessarily finding it triggering or embarrassing. And the less apologetic and uncomfortable you are, the better. So you want to avoid saying something like, I'm really sorry to be asking, but would you mind, if it's okay, if I ask if you don't mind me asking, if you've ever been diagnosed with any mental disabilities? That's not good. That's just going to be awkward for everyone involved. Instead, you can simply say, do you have any mental illnesses or conditions, like PTSD, depression or bipolar disorder. Pardon. Okay. So when you're talking to clients about disabilities, you want to ask about disability accommodations in a simple, non?judgmental way. For example, you can say, is there anything I can do to help us communicate clearly or help you access this meeting fully? Sometimes people ?? or you could say sometimes people have trouble keeping track of dates and times for meetings. Would it help if I sent you a text reminder the day before we meet? And you want to listen to what the person says. They usually know what works. But some people have not yet had a chance to get good accommodations, so you can take, I'm not sure seriously and try to brain storm some solutions. Now, for plain language, simple, plain language is part of readily accessible lawyering. It helps people with disabilities, and everyone else. You want to avoid legalese whenever possible. Clients don't want to get ?? you know, judges don't even like it a lot of the time, so it makes for stronger lawyering in general. It's also beneficial, like we said, for people experiencing trauma, information overload, drug or alcohol withdrawal or great transition. And this applies to many clients, regardless of whether or not they have a disability. It helps to reduce the huge power disparity between you and your client, and it's a best practice, even before you discuss the existence of disability. And what plain language does is it unpacks and explains implied knowledge using clear, common words. So instead of saying, this case is seeking injunctive relief only, try saying, in some kinds of lawsuits, people are asking for money because of something unfair that happened to them. But in this case, we are not asking for money. We are just asking for changes in the jail to protect people. We will not ask you for money, but we want to make sure you understand that you won't get any money from this case. Now, if you compare the two examples, the latter example is more straightforward. It explains it better. It actually gives more information to the client than the version at the top. So we think it's important for you to think about how you would communicate this to someone who didn't go to law school, who may not have the same level of formal education, or who might be a child. And if you can adopt that sort of framework, you'll be better at communicating with your clients, regardless of if they have a disability. This document ?? so this is an example of a plain language retainer. I'm not going to read it out because we will be sharing the slides, but you can look at it and see how it explains in very straightforward terms what is happening for the case at hand. Okay. For plain language declarations, they're more compelling to the Court, for one. They're more meaningful to the client, and they give the client an opportunity to tell their story. There is nothing more satisfactory ?? very few things are more satisfactory to a client than seeing a declaration and buying into it and being able to agree, like, yes, this is correct. This is my story. This is captured fully. And it's a great opportunity to bond and build and demonstrate trust with your clients. And this is an example of a plain language declaration. And so as you can see, it uses language that the client actually uses and relies on client input and how best to say something, deferring to the client on their story. Okay. So next we're going to explore capacity, communication and supported decisionmaking. Capacity exists on a spectrum. It's not a yes or no question. It changes with the context, the topic and emotional and physical state, et cetera. Capacity for representation does not require a client to fully understand all of the nuances of litigation. I mean, I'm sure we all know attorneys who are transactional attorneys, and they themselves don't fully understand all the nuances of litigation. It's fine. That's what we're here for. Capacity is changeable. It can be strengthened using tools such as readily accessible lawyering with plain language. You can also strengthen capacity with reasonable accommodations, such as time of day, format, duration, locations of meeting, breaks and repetitions. Sometimes, to help a client understand, you might need to draw a chart, and something as simple as that can help clients to be able to have the capacity for representation. You can also strengthen capacity with supported decision making. And when you're assessing the capacity of a client, you assess it with the supports. So if a client with supports like supported decisionmaking is able to have capacity, that's the correct answer, that they do have capacity, because of the supports that they have available. So what is this supported decisionmaking? Supported decision making is an individualized arrangement in which an adult with a disability chooses one or more persons that they trust as supporters to help them understand, make, communicate, implement or act on their own choices. And what's key here is it's their own choices that they are being supported and implementing. And it acts as an alternative to conservatorship or guardianship and it can strengthen the capacity of persons with disabilities and avoid the need for conservatorship or guardianship. So what are an attorney's obligations and responsibilities with a client using supported decisionmaking? There's a new law in California, AB 1663, which formally represents ?? sorry, formally recognizes supported decision making. Supported decision making can be a reasonable accommodation, which is, as Claudia mentioned, a change to standard practice to ensure that disabled clients have equal access to representation. And remember, you always assess capacity with supports. AB 1663, passed in 2022, is the probate conservatorship reform and supported decisionmaking act. It recognizes supported decisionmaking as a valid way for people with disabilities to strengthen their capacity and make their own choices. Supported decision making means individualized process of supporting and accommodating adults with a disabilities in order to enable them to make life decisions. A supported decision making agreement is a voluntary written agreement, written in plain language, that's accessible to the disabled adult. It needs to be signed by the disabled adult and each supporter, and either signed by a notary public or two neutral witnesses. And it should be reviewed every two years. The act, upon appropriations, also creates a program to educate and provide information about alternatives to conservatorship like supported decision making. That would be housed at superior court self?help centers. It also requires consideration of alternatives to conservatorship such as SDM at various points in the conservatorship process, including petition and annual review. It makes it easier for people in conservatorship to get out, including by appointing counsel and termination and allowing for uncontested terminations. It requires conservators to keep conservatees informed of choices, rights to change, and to use supported decision making within conservatorships, and to make choices aligned with the conservatee's decisions. Key decisions ?? sorry, provisions of the law related to SDM are here. Okay. Now I'm turning it over to Claudia. 

CLAUDIA CENTER: Thank you, Ayesha. I'll wait for my video to get swapped. Okay. So I'm going to talk a little bit about third party supporters and privilege. Obviously when we're talking about supporters and you're thinking about an attorney/client relationship, it's unsurprising that we would think about what will a third party do to attorney/client privilege. And I'm going to walk us through the different rules and laws about third parties and attorney/client privilege, and then I will share with you what I think are the practices that you can choose to use to balance attorney/client privilege protection and including supporters. Okay. So the first is Rule 1.6 of the Rules of Professional Responsibility, which says that a lawyer shall not reveal information protected from disclosure by the Business and Professions Code, Section 6068, unless you have informed consent, or there is an exception that applies, which is about crimes, which hopefully is not going to come up for any of us. Next slide. 

So what is does that via business and profession codes say? So this is a very serious provision and it says that the lawyer has a duty to maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets of his or her client. Okay. So that's very ?? every peril to ourselves to preserve secrets. So this is a very important rule. Next slide. 

So the next thing to look at is the evidence code, which is how the State of California defines when a party can assert the privilege in court. So that is California Evidence Code Section 952 and 954, and the client has the privilege, under Evidence Code, to refuse to disclose confidential communications between the client and lawyer. And then there's definitions for all those terms. And so the confidential communication is something that is transmitted between the client and the lawyer, within that relationship, so it's not like you're buddies with your lawyer and you're doing something outside of that relationship. It's within the attorney/client relationship, and in confidence. And so what does that mean, "in confidence?" And what the Evidence Code says is that it means that you are disclosing information in a way that is ?? in a way that discloses to no third persons other than those present to further the interest of the client and the consultation, or those to whom disclosure is reasonably necessary for either transmitting the information or accomplishing the goal of the attorney/client consultation. So you're going to be looking at does this further the interest of the client, or is it reasonably necessary? That's what the evidence code says. And so obviously, you know, we have sign language interpreters here. People may have language interpreters. This type of rule has long been used to include, or to permit the presence of such third parties without breaking the privilege, without, you know, upsetting the client's ability to refuse disclosure. So if you look at these rules, you know, furthering the interest of the client, or where disclosure is reasonably necessary, you can see how these may include someone like an interpreter, but also someone like a supporter. Next slide. 

So if you dig a little bit more into that California Evidence Code, you will bring up the Law Revision Commission comments, and what these Commission comments say that communication to a lawyer by a client is, nonetheless, confidential, even if it's made in the presence of another person such as a spouse or parent, who is present to further the interest of the client in the consultation. So this is just another authority that supports the idea that the participation of a supporter, when it's either necessary or furthers the representation does not, you know, cause the privilege to go away. Next slide. 

Another important authority for this concept that we're talking about comes from ABA Model Rule 1.14, the comments, the comments to Model Rule 1.14. And the reason that I'm referring you to the Model Rule is that the State of California has not actually adopted Rule 1.14. And the reason that Rule 1.14 allows an attorney to break the privilege to seek protective action. So in other states, not California, that have adopted this rule, a lawyer can break the privilege if they think that the client needs some sort of protective action. In other words, if the lawyer thinks that the client no longer has capacity, and as a result, is experiencing harm, they're being defrauded or they're being abused, and so on. So in other states, I assume there's a test that you have to go through, I just don't know it because we don't have it in this state, you can do protective action. That's not true in California. We do not have that rule. So I like to say sometimes we are mandatory non?reporters. You know, a lot of people have jobs where they're mandatory reporters. We're mandatory non?reporters. But in any event, when you look at the model rule, there are some comments that are still persuasive authority, in my opinion, in California, because it talks about how to support people with disabilities because protective action is typically raised in the context of people with disabilities. So the comment says, the client may wish to have family members or other persons participate in discussions with the lawyer. When necessary, to assist in the representation, so that's similar to the ?? our evidence code in California. Our evidence code says where necessary, or when it advances the representation. The presence of such persons generally does not affect the applicability of the attorney/client evidentiary privilege, and the comments reiterate that the lawyer should look to the client and not to family members for decisions in their representation. So next slide. 

Okay. So now I'm going to talk a little bit about case law about this question about third parties as supporters that are present with the lawyer and the client. So one case is from the California Supreme Court, from 2008, it's People versus Carasi, and in this case, the Supreme Court looked at those clauses from the evidence code that I was talking about, and then went and looked at that Commission comment that I talked about, where it was an individual meeting with their lawyer. And their spouse was present. And later that person became a criminal defendant, and so there was an issue about whether there was attorney/client privilege in that meeting. So ultimately, the California Supreme Court found that they didn't need to decide the question. Those of you who have experience with criminal law will know that a lot of times, questions aren't decided if the Court finds that there's no prejudice to the defendant. They say, we don't need to decide because even if it had gone the other way, no prejudice. So the Court did not decide it. But I'm referencing it here because it's a very similar fact pattern, in this case the spouse who, you know, was kind of positioned as a supporter, and where they really looked at that language from the evidence code and the Commission comment. So it just kind of shows that our courts should be taking those ?? that language seriously, you know, it's not just a little piece of legal arcana, it's actually, you know, something to look at. The other case that I think is interesting is from the District of Idaho. So in our circuit, but, you know, a lot of these attorney/client issues are determined by state law, so I don't know if it matters if this is in our circuit, but it is in our circuit. And it found that the communications at the attorney/client with the client supporter present were protected by the privilege, where the attorney reasonably believed that the supporter's present was necessary for the client, who had anxiety and wanted a supporter present. So two cases on this. Next slide. 

Now, here's the case that will give you a panic attack on the other side. So this is from the Colorado Supreme Court in 2018. And this was a controversial case. There was a dissent. But in this case, there was a meeting between a plaintiff and a lawyer with the parents present as supporters. And the Court ordered the production of a tape recording of that initial legal consultation, finding that the plaintiff did not demonstrate that her parents were objectively necessary to the consultation. The plaintiff had argued that the parents were necessary due to diminished capacity caused by the stroke. So, you know, in this case they were focused on reasonable. They didn't have the language that we have in our evidence code around advancing the goals of the representation. You know, they didn't have the Law Commission comment that we have, and so on. But still, this is quite distressing for those of us thinking about working with supporters. Next slide. 

So how do we kind of balance all of this that I've just gone through? So this is my set of practical tips for meeting with clients who may want or need the participation of supporters. And you all will need to make your own decisions about how to balance all of these important considerations. So I meet with the client alone to determine their preferences, to verify that they want to have a supporter or they don't want to have a supporter, or how they want to communicate and so on. I make my own assessment about whether the participation of the supporter is necessary or would advance the interests of the client in representation. If I allow a supporter to participate in any way, I clearly state to both the client and the supporter that all information and communications are confidential, and the client makes all the decisions, not the supporter. Now, you can consider putting all of this in writing and having people sign it if you want. I have, at times, put this in retainer agreements to underscore both the confidentiality and who the client is, but there can be pros and cons. Some supporters may be deterred by playing that role if they, you know, feel uncomfortable signing a legal agreement. You know, you may think about what might be discoverable, and so on. I mean, it shouldn't be discoverable, but, you know, you just might want to think about whether you want a document. So based on that Colorado case, I think it's really important to think twice about an audio recording plus a supporter. So I think what the ?? one of the big reasons, in my mind, anyway, that the Colorado case was so dramatic that there was a tape recording of the meeting that ended up being produced to the other side. So say somebody asks for the accommodation of a tape recording to listen to afterwards. And then they also ask for the accommodation of a supporter being present. So that's something I think I would think twice about. I've never had anyone ask for that, but I would definitely think twice, because the tape recording would be ?? you know, would bring in the possibility of, you know, if all your arguments failed, which hopefully they wouldn't, that tape recording ?? Or audio recording, you can tell I'm old saying tape recording, the audio recording, you know, would exist. So just something to think twice about. And then to document in your client file the basis for allowing the participation of supporters, so to have a memo to file that says why you've decided to have supporters play a role. Next slide. 

So before I get into protective action, I'll just talk a little bit about how supporters can help clients with disabilities. So I've talked about having them in meetings to help the client understand or communicate information, but they can also help with logistics of attorney/client relationships. They can help with amazing. They can help with transportation. They can help communicate information in an accessible way. Although hopefully we won't need that too much if you're using plain language. Yeah, so those are some of the ways that a supporter can help. It's not always in the meeting, but it can be, you know, around getting the person to the meeting, helping them understand what documents are, what communication means, maybe helping with if something needs to be printed out, helping with that. So all different things. I also want to talk a minute before I get into protective action about plain language. So DREDF and a lot of different partners in the disability community have been really trying to advance plain language as a tool for accessible representation. And, for example, the ACLU has done work on this. ASAN, the Autistic Self Advocacy Network has done a lot of work on this. I'm sure I'm forgetting people. So plain language is typically trying to bring things down to fourth or fifth?grade reading level, and there are some tools in your Word program for testing the reading level of your document. And it can be really interesting to see how high the reading level is for things like retainers or settlement agreements or other documents that we expect clients to understand. So what we've done historically is to really work on rewriting documents into plain language using the automated tool, and tweaking in order to bring the reading level down. And it can be quite time consuming, but very worthy, because you really end up with a very clear understanding of what you're trying to communicate in clear English. So DREDF has been working on a set of retainer agreements since we are a support center in the legal services community. My goal is to make those available publicly, and certainly to other legal services providers once we have a set that we're happy with. I also wanted to share that I recently went to a conference where I attended a session on the use of artificial intelligence in the area of legal services. And so this year I am going to experiment with asking artificial intelligence to do a first draft of something from a high level of English into fourth to fifth?grade reading level. And we'll see how that goes. And next year, when we do this session again in January 2025, I will report back on how effective that is for doing a first draft. So we'll see. So now back to protective action. Next slide. 

Okay. So like I said before, we do not have protective action in California. We are mandated nonreporters. So what can you do in California if you think your client has diminished capacity and you think it's hurting the representation or you think, you know, the client is in some kind of danger? You know, economic or whatever kind of risk of harm. So really, your options are limited in California. You can continue to represent the client following all the rules. That includes providing reasonable modifications to support capacity. Or you can terminate the representation consistent with Rule 1.16, which, you know, governs how you can withdraw from representation. So you can't tell the Court, you can't tell the sister, you can't tell the daughter this is how you proceed. So again, no option in the rules to ask the Court for a conservatorship. It doesn't exist. Next slide. 

Okay. So after the California Supreme Court rejected the Rule 1.14 on Protective Action, we now have an ethics opinion from the State Bar of California that lays out an alternative for lawyers to obtain advanced consent from the client to the lawyers ?? essentially protective action, or disclosure of confidential information in the future. In other words, under the ethics opinion, the lawyer can have the client consent. In the future, if I, lawyer, think you, client, have diminished capacity and you're exposed to harm, you are giving me advanced permission to tell the Court or tell your daughter or tell somebody in order to have some protective action taken, such as a conservatorship. The advanced consent is supposed to be, obviously, informed consent, meaning that there would be a review of all of the relevant circumstances, the benefits and the risks. Next slide. 

It says the opinion state bar ethics opinion 2021?207 says that this advanced consent is revocable if the client retains the legal capacity to revoke. So you can see that's a little bit of a puzzle, because if the client then loses their capacity, then they can't revoke, and then the lawyer would then have the consent to go ahead with the disclosure of confidential information. The lawyer should not act on advanced consent if the client would not have agreed or would have revoked, given the change ?? any changed circumstances. And this advanced consent should be memorialized in writing. But not required to be. So it's very interesting. Next slide. 

So there has been some criticism of this ethics opinion that the opinion may allow lawyers to disclose confidential information based on misconceptions about whether the client has capacity. So, for example, if somebody lost their ability to speak due to a stroke, but they could communicate with accommodations, but maybe the lawyer doesn't know how to provide the accommodations, and then assumes that the client has lost capacity. So that would be sort of a stereotype about someone who can no longer speak. There's also the criticism that this is a work?around, or inconsistent with the California Supreme Court's rejection of Rule 1.14, and that it is a violation of the idea of keeping attorney/client communications confidential. And that it does not require reasonable accommodation or supported decisionmaking as a first step to working with a client. Next slide. 

So a further critique of the ethics opinion is that the lawyer should be required to check with the client and let them know, hey, remember that prior informed consent you gave me to report that, you know, I think you've lost your capacity? You know, I'm about to do that. What do you think about that? But, in fact, the ethics opinion does not require that the lawyer check in with the client at the time that they plan to disclose the confidential information. So the critique that, you know, if you're going to do that, you should speak to the client first, and the client should have the opportunity to object and revoke the consent. Next slide. 

All right. So we have a healthy amount of time for questions and answers, or to add anything to what we've reviewed. Ayesha, I'll give you a chance to jump in here if there's anything during my remarks that you thought of that we should cover.

AYESHA LEWIS: One thing that I just would want to add in that 2021 ethics opinion predates the bill that we talked about before from 2022 that highlights and supports supported decisionmaking. So you can always argue that the bill displays the ethics opinion even further. And fortunately, we have a lot of questions in the question cue, and we have a hand raised. I believe the hand was raised before.

CLAUDIA CENTER: So we have a question, are there parameters for what kinds of conditions, disabilities or situations that would make the presence of a third party appropriate? I'm thinking, for example, of the difference between a client who has anxiety, a client without any mental illness, who just feels anxious, a client who is nervous or fearful, and a client who's being affected by their trauma. Yeah, that's a really good question. And one that I haven't thought about before, so I'll give an answer, and then I'll pass to Ayesha. So, you know, supported decisionmaking is for people with any disability, and supporters can support people with any disabilities, but in our sort of cultural awareness, I think that people tend to think about this as something for people with intellectual and developmental disabilities. And potentially psychiatric disabilities, and developmental disabilities would include things like CP that might affect someone's ability to speak, or might affect whether it might be helpful for someone who knows their speech really well to respeak it in order to help with communication. So I think that by principles, it's, you know, the same principles would apply, but I think culturally or practically, people have the most experience and comfort with it around intellectual and developmental disabilities and psychiatric disabilities. Ayesha, do you have any thoughts on that question?

AYESHA LEWIS: I would just supplement that by saying developmental disabilities, reminding folks that developmental disability includes ADHD.

CLAUDIA CENTER: Yep. 

AYESHA LEWIS: And so there are a lot of folks who may not think of themselves as disabled, but would still fall under the ambit of the Americans with Disabilities Act, and so there's often a broader basis than might originally be thought. Also, for example, the client affected by trauma, if they have a diagnosis of PTSD, then they're clearly within the ambit of the ADA. And so I think, just remembering that the ADA does operate broadly can help make sure that you're aware of how much is covered.

CLAUDIA CENTER: Thanks. I also see an answered question about CLE credit available for any states other than California. So we are a California MCLE provider and we will provide California credit. But some states allow you to claim credit from other states if certain requirements are met. So you, of course, would need to check that and figure out what you would need to do that. But that sometimes is possible.

AYESHA LEWIS: And we will also be sharing written materials, which is a component of several states' requirements.

CLAUDIA CENTER: Yeah. Good point. Someone asks: As a matter of practice, if the child of a senior with disabilities comes to you and says they have a power of attorney and want legal representation for the client who's in the hospital, do you typically ask for a copy of the power of attorney, or do you take them at their word? Are there any documents you would ask the person with the power of attorney to sign? That's a really good question. I would certainly ask ?? so let me just preface this by saying that I, although I do ?? or my practice has included seniors, that's not a specific expert area for me, but I would certainly ask for a copy of the power of attorney. I would not take the person at their word. I mean, I might speak to them generally, but if they were asking that some action be taken, I would definitely want to see the power of attorney first. I don't know if there are other documents I'd want the person to sign. Ayesha, do you have any thoughts on that?

AYESHA LEWIS: I mean, I think it would be part of the retainer agreement. You would want to make clear that they are ?? you're working with them on behalf of their parent.

CLAUDIA CENTER: And that that person is the client that makes the decisions, right? Yeah. Okay. If our client is hospitalized and does not have capacity, either temporarily or permanently, if we do not have the advanced consent, can we not even let opposing counsel or the Court know that our client has been hospitalized? For example, to support a request for continuance. Oh, that's a great question. Let me try and think that through. I mean, there's gotta be a way that you can let the Court know, because it does advance the representation. I may have to think about this one and get back to you. I think that it would, to some extent, go to the division between the goals of the litigation and the means of trying to reach the goals. So, you know, the lawyer is typically responsible for the day?to?day case management, which would include scheduling. And if you know the client is not available because they're in the hospital, it would make sense that you would communicate that. And, you know, you might need to consult with next of kin about if they're making decisions while the person is in the hospital under a power of attorney. You might need to consult with that person. Ayesha, any thoughts on this one?

AYESHA LEWIS: I think it's definitely an interesting question, because there's a tension between the duty not to disclose to the Court, but also the duty of diligence to the client because if you were to walk away and not request this, like a continuance, the client could be prejudiced, and have adverse rulings made against them. And so I think it's important to juggle these things. If the client is in the hospital and has no capacity, they've probably someone who has to be making decisions. There's mechanisms for that. And I mean, I agree that if someone has been appointed a person to make decisions for them at that point, it's fine, or it would appear to be okay to contact them. My understanding of the spirit of the rule is that the lawyer isn't supposed to take unilateral action to have someone have a conservator or guardian appointed for them. But if that situation has already occurred, we're talking about a different case.

CLAUDIA CENTER: Yeah, I completely agree with that. Okay. Someone says I'd like to know Claudia's opinions of these ethics concerns ?? sorry, I have a frog in my throat. I definitely think that the advanced consent idea where you don't go back to the client and say hey, I'm about to act on this advanced consent, seems really contrary to our rules on confidential communications and really contrary to the Supreme Court's rejection of Rule 1.14. I'd be interested to hear from ?? so I think it's ?? you know, it makes me very uncomfortable, and I don't think it's appropriate to have sort of advanced consent to seek protective action and to not even have it be in writing and to not even check with the client again. I'd be interested to hear from lawyers who actually try to get this advanced consent. I wonder if it's ?? I just haven't heard anyone who's really done this yet. But I don't find it ?? I find it to be inconsistent with our other rules. Ayesha, do you have any thoughts? >> AYESHA LEWIS: The one thought I would add to what Claudia said that we've explained multiple times that you need to assess capacity of your client with supports. And so any attorney who's going to be following the ethics opinion and get consent to do protective action needs to also make sure the client is understanding that they have the right to supports, and also them taking on themselves the duty of educating themselves about what a potential supports are available that could make the client have enough capacity. It's lazy lawyering to not even do that investigation and then seek protective action.

CLAUDIA CENTER: So another question is circling back to the point on whether to have a support person sign a confidentiality agreement, can you explain again the cons of having a support person sign a confidentiality agreement and any way to mitigate those draw?backs? So I think the cons are that it may deter some supporters who are uncomfortable signing a legal document, just even if, to us, it's not a big deal to sign it. It may deter somebody the anxiety or just seeming burden of signing into a legal agreement. And then another con would just be, you know, sort of like the tape recording in that Colorado case, that it sort of creates a paper trail about how you're managing your attorney/client meetings. But I don't think ?? I mean, I could see going either way on this, you know, I've had supporters sign a confidentiality agreement before. So I don't see it as, you know, a hard and fast rule either way. Ayesha, any thoughts on that one? 

AYESHA LEWIS: No. Nothing from me. 

CLAUDIA CENTER: Let's see. Do you recommend documenting the reason for allowing supporters for every communication or interaction? I haven't had this question before, but my initial reaction would be no, I probably wouldn't because I would be nervous that I would forget to record it at some point and then somehow that makes it seem like it wasn't necessary during that interaction or that it didn't advance the purposes of the representation. So I'd probably just document it at the beginning. Ayesha, any thoughts? 

AYESHA LEWIS: I would probably document it only at the beginning unless it's clear that this is, like, an intermittent disability that sometimes requires a supporter and sometimes doesn't. And so you could say that we're being diligent and only having it when it's actually needed. But outside of that kind of circumstance I don't know that it would be necessary.

CLAUDIA CENTER: Okay. Next question. Is the supportive decisionmaking statute only in cases involving conservatorship or is it applicable to other types of litigation? So AB 1663 is a general law, so it applies generally to all people with disabilities who want to enter into a supported decision making agreement. It can be an informal agreement or it can be a written agreement such as is described in the statute. So it's a tool that can be used in litigation, or in an attorney/client relationship to support a client with a disability. One of the stated goals of AB 1663 is to avoid conservatorship when a person can maintain their capacity with supports. But the law also talks about using supported decision making even within conservatorship to try to allow people, even those who are already under conservatorship, or in the future will be under conservatorship, to allow people to express their views and have those views implemented as much as feasible in the context of a conservatorship. So it's a little bit, in some ways, counterintuitive that you would use supported decision making within a conservatorship, but I think the idea that it is trying to enhance somebody's self-determination, and we want that to be available to people within conservatorship, or, you know, outside of conservatorship. And it's kind of similar to bring up a very controversial topic, care courts. So care courts have been adopted in California in the face of great opposition from civil liberties and disability rights organizations. And the care court system has this idea of supported decision making within care courts. So, you know, we don't think care courts should even exist, you know, but if somebody is in that situation and a supporter would be useful to them, then yes, I mean, we think they should have a supporter. But we don't think care courts should even exist because we think the support should be provided voluntarily, which they are not. So that was a really long answer. To confirm, there are no circumstances without written consent or other consent from the client where an attorney can reach out to a third party to obtain support for a client who needs assistance such as reaching out to adult protective services. Yeah, that's my understanding. You need consent from the client to seek protective action. And so we could try to find some additional material in this, but that's, you know, California is the outlier here. We have 49 other states that have adopted Rule 1.14, but not California. So, you know, I think that in our state, it's incumbent on us to speak to clients plainly and say, you know, it seems like XYZ is happening. It seems like you are at risk of, you know, such and such fraud or such and such abuse. I'd really like to reach out to someone to help you. I'd really like to talk to your daughter and try to get consent to those kinds of actions, because my reading of the rules that we don't have that option in California to unilaterally seek out protective action. Ayesha, any thoughts on that? >> AYESHA LEWIS: I think that's correct. I mean, the only sort of area where I think we could reach out would be the rule around disclosure of criminal activity. But I don't think that's what most of us are thinking of.

CLAUDIA CENTER: Right. Right. I'd like to ?? okay. Here's a question. I'd like to support and communicate with my client the best that I can but don't want to overstep. I'm wondering how to practically and more definitively determine whether a client requires assisted or support when they don't give that disclosure immediately. I feel that it's easiest to ask right out during initial communications but I don't want to make assumptions and come off as insensitive during any initial impressions with the client. Thank you for your help. Ayesha, do you want to try this one?

AYESHA LEWIS: Sure. So this can be tricky. It really depends on the relationship that you have with your client, and that can build over time. And so what I find to be helpful is to leave the door open and let them know that if your goal is to have a successful representation, or fruitful one, and if there is anything that they need to make that representation happen, that, you know, you're happy to have that conversation. Sometimes it takes folks a little while to let you know what they need. I've had people have conversations with me, and they would tell me maybe 10 percent of what the need was, and just to sort of as a feeler, to see if I was receptive. And then maybe the next time we spoke, they would tell me another 10 percent of what the need was. And so sometimes it's just something that you need to be patient with and give folks time to feel comfortable to open up.

CLAUDIA CENTER: Yeah. I think that's right. Thank you, Ayesha. So here's a very hard question. So if we believe the client has diminished capacity, in fact get the client tested and dementia is established, I cannot disclose that to the Court without the client's permission. In immigration court, there are protections for clients with mental disabilities so it is in the client's interest to disclose it to the court and ultimately the Court would notice it at the hearing because it's evident. And the Court ultimately may find the lawyer was ineffective and did not help the client when the disability is obvious, and the attorney failed to apprise the Court and seek protections. So I understand, I'm not an immigration lawyer, but I understand that there is a discussion in the immigration world about how to navigate these competing requirements. And I imagine that people should call the ethics hot line. They should consult with in?house counsel to try to figure out how to do this. I think, you know, one way is to try to focus on having the client identify the goals of the litigation, and then looking to it, you know, the goals are that you have a good experience in immigration court, and we think having a lawyer for you would help you in immigration court and in the immigration proceeding. We think that giving this report will allow you to have a lawyer, and that would be better for you. So trying to get the client to buy into the goals, or express the goals, not buy into them, because express their goals in the proceeding, and then agree to disclosing the report. The judge will notice and should intervene and provide any attorney ?? you know, lawyers that are required under case law, under Franco, or whatever other case is applying, I may have the case wrong. I'm not a disability lawyer. And, you know, they ?? the judge should not be mad at the lawyer because if the lawyer is in California, because the lawyer is trying to follow the Supreme Court's rejection of Rule 1.14. You know, some people with dementia may ?? well, maybe not in immigration detention, but may in other settings may have a power of attorney. There may be a tool already in place, so as long as you, the lawyer, don't create the ?? you know, you can rely on something that's already in place to resolve the issue. Like a power of attorney. But yeah, I think this is a hard one. I understand that there are immigration lawyers out there who are struggling with this. You know, might be time to talk to the ethics hotline, and to, you know, maybe even ask for an ethics opinion that you could show to the judge so that you don't get yelled at because I don't think it would be right to get yelled at. But, you know, I do think it's proper for the judge to notice an order, order counsel where appropriate under the case law. And, you know, you could certainly say, you know, your Honor, we have rules in California to follow, and we don't have Rule 1.14 in this state, and hopefully they'll understand. But I understand, I definitely see the problem. Let's see ?? 

AYESHA LEWIS: Oh, wait. I just wanted to add in one more thing.

CLAUDIA CENTER: Oh, yeah, go for it, Ayesha. 

AYESHA LEWIS: And this is not just dementia. There are several psychiatric disabilities where folks might not have insight, and that's just an aspect of their disability and something that folks can try to accommodate around. You can ?? some, like there have been cases where clients don't agree with their diagnosis and still are able to make use of the diagnosis or to do what they need to do. We see that all the time with, like, clients with disabilities in the child welfare context. They might have a diagnosis. They may not agree with the diagnosis, but they'll still take the steps that they need to take to get their children back. And that can happen, you know, in immigration. So you might say, listen, you ?? they say ?? the doctor has said that you have dementia. Maybe you don't have dementia. You know, regardless of whether you do or you don't have dementia, you can use what the doctor said, and you don't have to write in the declaration, I believe I have dementia. You can just say, I have received this diagnosis. And the judge can do with it what the judge will. And sometimes that works. Not always, but sometimes.

CLAUDIA CENTER: Yeah, I completely agree with that and that can happen, even in complaints. Someone might feel like their diagnosis is wrong or they don't consider themselves to have a disability. You could say, you know, so and so, you know, has been deaf since childhood and communicates using ASL, and based on these facts, this person has a disability, and you put it in quotes, under the Americans with Disabilities Act. So you are putting it in the legal context rather than assigning it as a, you know, a form of identity to the person. But great question. I'm glad someone raised that.

AYESHA LEWIS: There was a question in the chat ?? >> CLAUDIA CENTER: Yeah, why don't you read that one, Ayesha.

AYESHA LEWIS: Okay. This question was typed in the chat earlier. We have clients that say they would like us to speak with, say, Mom, Dad, partner, friend, et cetera. So long as that consent is documented, then we are fine, right? Yes, I ?? well, actually, I'm going to kick this to Claudia.

CLAUDIA CENTER: So I mean, I think you have to look at all the rules that we've put in the PowerPoint. We're going to send it out to you all and just make sure you feel you're following all the rules that the ?? you know, so what we were talking a lot about the ?? keeping attorney/client privilege is when you are having a meeting with your client and the supporter is somehow involved. And so that's where you have to check that, you know, is this necessary to the communication or does it advance the goals of the litigation. And you're going to look at all the rules and case law and make a decision on your own about that. Probably document it in the file. In terms of communicating with someone as a witness, like if you're taking notes about someone as a witness, a family member, then you're going to want to put in your impressions and make sure that, you know, that's maintained as a work?product document. If your client asks you to coordinate, for example, coordinate with my daughter on the appointment, because she's going to help me get there. She's going to drive me, yes, that's totally fine. That's like a completely good way to use the supporter. There may be some examples in the middle where I feel like I can't give a blanket yes or no, but, you know, if you've tried to follow the principles, that's the idea. Ayesha, do you have any thoughts on that one? >> AYESHA LEWIS: I would just, you know, reiterate that it's important for the client to understand attorney/client privilege, and if you're going to ?? if they're going to ask you to make communications that might waive that privilege.

CLAUDIA CENTER: We have a question, are there any resources for plain language documents for settlement releases? Oh, that's a great question because settlement documents are some of the least accessible documents that exist out there. I do not know of any right now. You can see, if you look at the ACLU's library on supported decisionmaking, you'll see some plain language documents, which can give you some examples. They aren't settlement releases, but there's some examples. DREDF is working on some retainers, retainer agreements, which we hope to share by the time we do this next year. I see in the chat someone shared that the impact fund is working on better settlement notices. You can ask them for templates. That's a great tip. But yeah, I think especially those general releases and, you know, you're releasing everything from the beginning of time until the date of the settlement agreement, those are really hard to explain, and that's a real bear. Let's see. Have we answered everything? Let's look. So we're going to share slides. If folks who, you know, have represented seniors or immigrants who find, you know, the rejection of Rule 1.14 to be really challenging, I'd be interested to find out if you ?? you know, how you balance the different rules and how you decide to navigate things. You know, I could imagine somebody figuring out, oh, well, actually the person's in New Mexico right now in detention, and we're going to send a New Mexico lawyer who's in a different state and has different rules. So it would be interesting for us to learn about that. Someone asked do we need to do anything specific to request an MCLE certificate? No. We're going to send those out. We're going to try to do it by the 31st. I don't think you actually need to have received the certificate to do your attestation, but we will do it so people feel at ease. And yeah, we'll send them all out hopefully by Wednesday to the E?mail that you gave when you registered. Let's see. Oh, yeah, yeah, disability advocates collaborated on comments on the proposed ethics rule and why it was problematic, if folks are interested. Yeah, thanks, Dara. That's a really good point. When we previously did this presentation, we included that comment letter, I think it's on the DRC website, as some of the materials. And this time we just didn't include the link to that. But if anyone needs it, feel free to E?mail me. My E?mail is easy to find, and I'll put it in the chat. But I'm happy to share that document. All right. Let's see, it seems like we have no more questions. And so yeah, so we've put the evaluation form in the chat. You can reach out to us with any questions, and as you see, we don't always have perfect answers but we can try to help you work through things and particularly if you're from a qualified legal services provider, meaning that you are funded by the state bar to serve indigent people in California. We exist as a support center to you, and we are funded also by the state bar to help you with these kinds of questions. So we definitely encourage you to reach out if you are with a QLSP. And if you don't know what that is, you probably aren't with one, but if you are with one, we would love for you to reach out. Thank you so much and thank you for the great questions that really get at the heart of some of these things.

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