Psychological and Ethical Issues in the Relationship between Lawyers and Mentally Ill Clients

By Barnett, Michael; Hayes, Robert et al. | University of Western Sydney Law Review, Annual 2007 | Go to article overview

Psychological and Ethical Issues in the Relationship between Lawyers and Mentally Ill Clients


Barnett, Michael, Hayes, Robert, Large, Matthew, Nielssen, Olav, University of Western Sydney Law Review


Contents

I.   Introduction
II.  Psychological and Safety Issues
III. Ethical and Other Duties
IV.  General Strategies to Deal Effectively and Fairly With
     Mentally Ill Clients
V.   Conclusion
     Appendix 1: Examples of Ethical Problems
     Appendix 2: The HCR-20 Violence Risk Assessment Scheme

I. Introduction

This article is concerned with the ethical, legal, professional and practice management dilemmas involved in situations such as the following:

   A young accident victim began his relationship with a law firm as
   the perfect client, but progressively became increasingly
   aggressive and abusive, bombarding the lawyer and staff with
   constant email and phone calls. The lawyer has just received a
   psychiatrist's report in connection with the client's case, which
   opines that the client could be at risk of seriously assaulting his
   parents, with whom he lives.

How should the issues raised in this kind of situation be addressed and resolved? The questions are important. There is an increasing incidence of psychotic illness in New South Wales prisons, (1) generating an increasing proportion of mentally ill clients, particularly for pro bono practices within law firms, and community law centres servicing a growing marginalised population.

The relationship between a lawyer and client is often complex and multifaceted, involving fiduciary, financial and psychological elements. obtaining instructions from clients and acting on those instructions may raise a variety of ethical and psychological issues for lawyers. For example, in family law, lawyers may be faced with acting on an apparently disturbed client's instructions that appear contrary to the best interests of the children of the relationship. In criminal law, some lawyers may face psychological and ethical difficulties in appearing for clients who may have committed serious crimes. Across the spectrum of professional practice, clients may be aggressive or unpleasant or, at the other extreme, very pleasant, attractive, vulnerable or sometimes seductive. Lawyers involved in a professional relationship may have strong personal feelings about their clients, either positive or negative, which consciously or unconsciously, may influence their professional responsibilities.

These psychological and ethical issues may be made even more complex or problematic when a client is mentally ill. Some clients also have alcohol or other substance addictions sometimes in combination with a mental illness. Such clients may act irrationally some of the time or all of the time, or they may suffer from mood swings, disorganised thinking, hallucinations or paranoia. The intensity of their symptoms may fluctuate and its effect on their functioning may also vary. There may be issues as to their capacity to give instructions or they may frequently change their instructions or give conflicting instructions. It also may be difficult for a lawyer to assess their legal capacity because the symptoms of their illness may manifest in deficits in their ability to communicate and in social, literacy and numeracy skills.

Mentally ill clients may reject a lawyer's professional advice or misconstrue such advice because of irrational thoughts and feelings. They may come to believe that a lawyer can solve all of their problems, that the lawyer is part of a conspiracy against them, or that a lawyer's advice and conduct are further evidence of persecution. From the lawyer's perspective, mentally ill clients may become fixated on irrelevant or minor aspects of their circumstances and ignore important issues. Some mentally ill clients may be aggressive or hostile or alternatively feel frightened and overwhelmed as a result of their illness, or lack motivation or interest because of 'negative symptoms' of mental illness. Some clients may miss appointments or take a long time to give instructions or complete forms and procedures because of disorganisation arising from their illness. …

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