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

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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len, withdrawn, and depressed.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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