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Showing posts with label INFORMED CONSENT. Show all posts
Showing posts with label INFORMED CONSENT. Show all posts

Saturday, May 9, 2015


By Elizabeth A. Richter

I was watching a family court proceeding the other day.  There had been a hearing early in the morning and the parties were negotiating in the hallway.  Then, that afternoon the mother's attorney handed his client a copy of his proposed dissolution agreement and said "I want you to sign this agreement right now as is."  

When the mother expressed concern that there were parts of the agreement she didn't think were in her best interests, her attorney said, "As your attorney, it is my legal advice that you sign this agreement."  Waving to his associate and a friend who was sitting nearby, the attorney said, "I have two witnesses here who can testify that I told you that it is my legal opinion that you should sign this agreement.  If you refuse to sign it, you would be going against attorney's advice"  

Underlying this attorney's words, which in my view were very carefully chosen, was an outright threat to withdraw from the case and leave his client on the lurch.  

So what about this situation?  Can an attorney simply withdraw from a case and leave his client on the lurch, even when they are in the middle of a trial as was the case here?  

My experience is that yes, yes the attorney can do whatever he wants to do.  

Granted this situation where your own attorney can bully and blackmail you into an agreement you don't want, can you ever really say that family court litigants have free choice.  

I say no.

I wasn't always aware of this situation.  No less an attorney than Attorney Debra C. Ruel told me that no judge would allow an attorney to simply withdraw, particularly just before or during a trial.  She said that an attorney wishing to withdraw would have to simply grin and bear it because withdrawing is almost an impossibility.  Within two weeks of her remarks, my attorney had withdrawn with the complete blessing of the family court judge.  

In my experience with family court which is getting to be quite extensive, I have never yet seen an attorney denied a motion to withdraw for any reason.  No matter how ridiculous and obviously trumped up the reason, attorneys always seem to get away with a withdrawal from a case whenever they want to.  

So why the lies?  

I don't know; it seems to be part of the double talk that is fundamental to the profession of the law.  

Officially, the client is supposed to be making the decisions in his or her case.  See Rule of Professional Conduct for Attorneys No. 1.2 "Scope of Representation and Allocation of Authority between Client and Lawyer" which states "a lawyer shall abide by a client's decisions concerning the objectives of representation and shall consult with the client as to the means by which they are to be pursued."  

And further, "a lawyer shall abide by a client's decision whether to settle a matter."  

The commentary on this section makes the interesting point that this rule "confers upon the client the ultimate authority to determine the purposes to be served by legal representation, within the limits imposed by the law and the lawyer's professional obligations."  Of course, this latter exception seems pretty broad! 

Then the commentary continues on to state that while a client may determine the goals of representation, it is the attorney who ordinarily establishes the means by which those goals will be achieved.  In short, "Clients normally defer to the special knowledge and skill of their lawyer with respect to the means to be used to accomplish their objectives, particularly with respect to technical, legal and tactical matters."  

Further down the line, the commentary also includes the remark that "legal representation should not be denied to people who are unable to afford legal services or whose cause is controversial or the subject of popular disapproval."  

These guidelines appear pretty clearcut to me.  So how is it possible that with such firm guidelines placing the client in control of the direction of the representation, that the scenario I described earlier could occur, that an attorney could threaten a client to approve a dissolution agreement as is or else and force her to sign it despite her better judgment?  

What about my situation? I had a similar experience where Attorney James T. Flaherty presented me the parenting agreement in my case and told me to agree to it as is or else.  Later, Attorney Flaherty sat silently during the pre-trial on the custody, and when I asked him finally why he wasn't helping me, he stood up, stated he was going to withdraw from my case, and walked out.  And he got away with doing so without any expression of disapproval from the Judge--Judge Solomon--when this happened.

I'll tell you how this happens; it happens because there are so many loopholes built into other areas of attorney's legal ethics that it is laughably easy for any attorney to nullify completely the mandate conferring decision making authority on the client.  

I had three attorneys withdraw in my case, so let me take a look at the reasons they provided for their actions.  Here is the first one, "The movant seeks to withdraw from this case as client fails to cooperate with counsel, thereby rendering counsel's assistance ineffective."  

Fails to cooperate?  What the heck is that?  I see, fails to cooperate by signing this agreement "as is".  That's a pretty big failure in cooperation.  Failure to do what you are told would be rather uncooperative, don't you think?  

Here is another one, "Movant seeks to withdraw from this case as counsel because there has been a breakdown in the attorney/client relationship".  Yeah, because the client refuses to sign the agreement "as is" and do what he or she is told to do.  

These are grounds for withdrawal that one advocate friend of mine once said, "that are big enough to drive a mack truck through."  

For a better sense of how big the loopholes are allowing an attorney to basically withdraw at will from a case, take a look at the Rule of Professional Conduct for Attorneys No. 1.16 Declining or Terminating Representation.  

Naturally, an attorney may withdraw from a case if a client wishes to use him to perpetrate fraud or a crime.  But more specific to this discussion is item (4) allowing an attorney to withdraw if "the client insists upon taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement."  

So what if the lawyer finds it repugnant, as clearly the attorney in my initial example did, that his client won't sign an agreement "as is."  What then?  

This provision is closely allied to one in item (6) which states that a lawyer can withdraw if "the representation...has been rendered unreasonably difficult by the client." Right, by not doing as the client has been told and signing the agreement, or else try Item (7) "other good cause for withdrawal exists", which I assume means anything else that an attorney can come up with.  

This latter item, by the way, is another example of why an attorney can stand in public in the open corridor and loudly threaten his client because, as we just read, there is absolutely nothing in the attorney's code of ethics to stop him.  

It is even more absurd to think that family court litigants have even a modicum of choice when you consider that they aren't even entitled to "informed consent" which is a fundamental component of decision making.  Again, when it comes to the concept of informed consent, the attorney's code of ethics gives it to their clients in one location, while taking it away in another.

Thus, according to the Rule of Professional Conduct No. 1.4 "A lawyer shall promptly inform the client of any decision or circumstance with respect to which the client's informed required..."  Further, "This means the attorney should provide sufficient information to the client regarding the tactics the attorney intends to use and whatever information is necessary to understand what is going on."  

Item (b) of this rule specifically states again, "A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation."  Also, under "Explaining Matters" the rules state, "The client should have sufficient information to participate intelligently in decisions concerning the objectives of the representation and the means by which they are to be pursued..."  

And then here comes the loophole! 

The end of the sentence says, " the extent the client is willing and able to do so."  

Thus, if a client says anything vaguely like "I am not willing or able to listen or understand what you have to say at the moment." how often, or how long, is an attorney required to continue explaining?  Who is the one who is going to assess objectively the extent of a client's willingness and ability?

Isn't this additional phrase another great big opportunity for excuse making when an attorney bypasses the client by misrepresenting or not mentioning the facts essential to making an informed choice and then resolves a case contrary to the wishes of his client?  

And that is not the only area in the Rules of Professional Ethics for attorneys where clients are denied their right to informed consent.  Try a later commentary on this section entitled "withholding information" where it states, "In some circumstances, a lawyer may be justified in delaying transmission of information when the client would be likely to react imprudently to an immediate communication".  

So if your client might "imprudently" refuse to sign an agreement "as is" if he or she were aware of some vital fact, as an attorney, you would be allowed to delay telling your client about it until the agreement was signed.  Isn't this the meaning of that particular clarification?  Again, we have a loophole that is so big, it encompasses the entire Atlantic Ocean as far as I am concerned.  

What is interesting in regard to this part of the commentary on informed consent is that the text singles out people with mental health disabilities as an example, and describes them as not entitled to informed consent.  This written policy is a direct violation of the Americans With Disabilities Act as well as an outright denial of civil rights to people with mental health disabilities.

When you have rules of conduct which are effectively cancelled out later on in the text by extraordinarily large loopholes and/or extensively detailed exceptions, these rules are effectively, to all intents and purposes, eliminated.  

What this means is that the implementation of coercive tactics is a reality in Connecticut family court, particularly the coercive tactic of an attorney threatening to withdraw the day before, or even the day of trial unless the client writes up a substantial check on the spot.  

The coercive tactic of demanding a client sign an agreement based upon the threat that the attorney will withdraw, this is a daily occurrence in family court.  

Then, in the most hypocritical fashion ever, clients who have been bullied and coerced in public in the open hallway in front of friends, court employees, and any stranger that walked by at the time, have to undergo a procedure called the "canvas" where they swear under oath on the stand in open court that they were NOT coerced.  

Not only that, in such agreements there is normally an additional provision detailing the fact that the client was not coerced when, in fact, everyone, often including the judge, knows that the client was bullied all the way down the line.  

What this means, of course, is that the illusion of choice for family court litigants is just that--an illusion.  The bottom line is that the attorneys make the agreements; they do the negotiations.  Then they lie, bully, blackmail, or manipulate--whatever it takes--in order to get their clients to rubber stamp them.  Regrettably, based upon the wording of the current rules of professional conduct for attorneys in the State of Connecticut, family court litigants have absolutely no recourse when that happens.