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23 Child L. Prac. 1 (2004-2005)

handle is hein.journals/chilawpt23 and id is 1 raw text is: t? e j, .to nf 3 W5et, child- Law Practice Vol. 23 No. 1 March 2004 Helping Lawyers Help Kids RAISING THE BAR Representing a Client with Diminished Capacity by Jennifer Renne W hen representing a client with diminished capacity, it can be difficult for the lawyer to know when to defer to the client's wishes, and when to substitute his judgment for the client's. It can be hard to determine issues of client autonomy, control of litigation, and decision making with a fully functioning client, but what if there are ques- tions about a client's capacity or ability to make decisions?1 This article focuses on representing clients with diminished capacity. While confidentiality issues are addressed, an earlier article on confidentiality and an upcoming article on conflicts of interests cover those topics in greater detail. Many of our clients suffer from diminished capacity, defined as a client who is not fully functioning, whether as a result of substance abuse, age, or mental health issues. How a lawyer handles these delicate issues can profoundly impact the cli- ent-lawyer relationship. Effective advocacy, combined with empower- ing clients, can result in a more meaningful role for the lawyer, and will positively affect case outcomes. The following case study shows the complexity and challenging nature of such representation. The article provides guidance by explaining lawyers' ethical duties under the rel- evant ethical rules. It also goes be- yond the ethics rules to suggest practical ways child welfare lawyers can represent clients with dimin- ished capacity. The Mason case Consider the following case from the view of the child's and mother's lawyers. The case is set for a perma- nency hearing: Candace, an 8 year old, is the subject of a child abuse and neglect proceeding. The case arose after a report of physical abuse by her mother, Rhonda Mason. During an interview with Candace, the lawyer tried to talk with her, but she didn't make sense. Candace talked about butterflies really being angels come to earth. She did not seem to under- stand that she might be separated from her mother. Her mother was interviewed by her lawyer. Ms. Mason seemed sul- len, withdrawn, and depressed. She was nonresponsive throughout the interview. The next week, she stopped by her lawyer's office un- announced, and demanded to meet with her. She was excited, agitated, and insisted that Candace shouldn't have been taken from her. Based upon her extreme mood change, her lawyer asked her what happened. Later in the interview, she disclosed that she had been using drugs. At the end of the shelter care hearing, Candace was continued in foster care. Her lawyer saw her twice in the 30 days between that time and the adjudication hearing, but she still seemed incoherent. Al- legations against her mother were upheld, and Candace remained in foster care. The agency arranged for (Continued on page 6) What's Inside: 2 CASE LAW UPDATE 12 ADVOCACY ADVICE Special Immigrant Juvenile Status for Children in Legal Guardianships 16 ABA POLICY New Child and Family Policies E-mail: childlawpractice@staff.abanet.org * Internet: http://www.childlawpractice.org

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