Judith L. Kornegay, Attorney

Rocky Mount, NC

252-937-6343

galaattyjlk@aol.com

for dilemmas common to representing children and adults with mental health disorders

for dilemmas common to representing children and adults with mental health disorders

I-Know & fulfill your role.

II-Know law & rules.

III-Determine the facts.

IV-Apply knowledge/skills to pre-trial preparation, advocacy at the hearing, and for post-hearing duties.

A. The N. C. Rules of Professional Conduct provide the ethical framework of legal representation.

NOTE: The North Carolina State Bar Rules of Professional Conduct and the adopted ethics opinions of the North Carolina State Bar are the property of the North Carolina State Bar.

1. Advocate competently.

Rule 1.1 requires an attorney to be competent to handle the legal matter involved. Competence includes knowledge, skills, and adequate preparation and attention to the case. Competence must be maintained.

2. Scope of Representation and Allocation of authority between client and attorney

Rule 1.2 delineates the allocation of authority between client and attorney, requiring that the attorney communicate effectively with the client to determine the client’s “decisions concerning the objectives of the representation” and to “consult with the client as to the means by which they are to be pursued.”

Clients decide the objectives of litigation;

attorneys determine the means.

3. Advocate with reasonable diligence and promptness.

Rule 1.3 requires an attorney to provide zealous advocacy, to “act with reasonable diligence and promptness in representing a client.” The attorney must “pursue the matter on behalf of a client despite opposition…and take whatever lawful and ethical measures are required to vindicate a client’s cause of endeavor”

4. Communicate promptly and effectively with clients.

Rule 1.4 requires attorneys to communicate with their clients. This includes:

(1) Promptly informing the client of anything to which they must consent;

(2) Reasonably consulting “with the client about the means by which the client’s objectives are to be accomplished”;

(3) Keeping him or her informed of the status of the case;

(4) “Promptly complying with requests for information”;

(5) Explaining if the ethical rules prevent any requested assistance;

(6) Explaining “a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation”.

The attorney must have “reasonable communication” with the client under Rule 1.4:

(1) so the client is fully informed,

(2) can determine the objects of the case, and

(3) give informed consent.

Comments to the rule note that the usual attorney-client situation is one in which the lawyer is providing information that is “appropriate for a client who is a comprehending and responsible adult”, but acknowledges that “fully informing a client to this standard may be impracticable, for example, where the client is a child or suffers from diminished capacity” (See Comments 6 to the Rule).

What communication is reasonable with a minor client, or one with a mental disorder, will depend on the client’s age; mental status; education; ability to comprehend, focus, or exercise self control; and willingness to participate.

At the least, unless it is not reasonable for the client, the client should be informed of:

(1) the nature of the case(2) what will happen(3) the evidence(4) collateral consequences(5) right to have records

expunged at 18

Rule 1.4 also takes into account that it may be necessary or prudent to withhold information from a client (e.g., a psychiatrist says it would be harmful to the minor to reveal to him or her the diagnosis/medical evidence).

5. Preserve client confidentiality.

Rule 1.6 mandates maintaining attorney/client confidentiality, absent informed consent to disclose it.

Any information gained during the course of representation is confidential.

“’Informed consent denotes the agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation appropriate to the circumstances.’” Rule 1.0(f), N.C. Rules of Professional Conduct.

Written waiver of consent give an attorney the most protection.

Attorney cannot make disclosure that would lead a 3rd party to discover confidential information.

Rule 1.6 extends to people the attorney supervises or who have privy to the information in the course of their employment or contracted services with the attorney/firm.

Attorney must take steps to minimize the risk of disclosing confidential client information while using any kind of unsecure method of communication, including mobile or cordless telephones or electronic communication (e.g. faxes).

Attorney must take reasonable care to prevent disclosure of protected information in metadata during electronic communication.

The duty of preserving confidentiality continues after the representation is terminated.

Take care not to disclose confidential client health information, including information about communicable diseases, without written consent.

The attorney has discretion about whether to report crimes that the client discloses he or she plans to commit or that he or she has committed child abuse or neglect. Discretion can also be used about warning 3rd parties the client plans to harm.

Unless the client instructs otherwise or special circumstances limit the attorney’s authority, the attorney “is impliedly authorized to make disclosures about a client when appropriate in carrying out the representation*.” Comment 5 to Rule 1.6.

*Such as, that a fact cannot be disputed....

98 FEO 18 allows disclosure of a minor client’s confidential information to his or her parent if the parent is the minor’s legal guardian and disclosure is necessary “to make a binding legal decision about the subject matter of the representation”. This is unlikely to apply in VAM/IVC cases where there is an inherent adversarial relationship between parent and child. Written consent of the client is always prudent before any disclosure.

There are exceptions to the confidentiality rule (see Appendix to manuscript).

The safety of the client, attorney, and court should be exception as well.

6. Avoid conflicts of interest.

Rule 1.7 (also 1.8 and 1.9) prohibits attorneys from representing clients if a concurrent conflict of interest or comes to exist, absent informed consent, confirmed in writing if the conflict is consentable.

“A concurrent conflict of interest exists if:

(1) the representation of one client will be directly adverse to another client; or

“A concurrent conflict of interest exists if:

(2) the representation of 1 or more clients may be materially limited by the lawyer’s responsibilities to another client or a former client, or a third person, or by a personal interest of the lawyer.”

There is an inherent conflict of interest between parent and child in VAM/IVC cases in which the parent consents to admission or files or supports the petition or continued admission.

Beware of the risk inherent conflict of interest existing or arising when asked to be retained by a parent to represent a child in a VAM/IVC matter.

The duty to avoid conflicts of interest continues after the representation is terminated.

7. Advocacy for clients with diminished capacity.

Rule 1.14 concerning representing clients with diminished capacity (including minors) requires attorneys “as far as reasonably possible, [to] maintain a normal client-lawyer relationship with the client.”

1. Voluntary admission of a minor.

The N.C.G.S. 122C-224.2 mandates appointment of counsel for the minor respondent in voluntary admission of a minor case (The parent/guardian of the minor may chose and hire a private attorney; however, privately retained counsel should beware of any ethical issues which may be present).

1. Voluntary admission of a minor:The N.C.G.S. 122C-221-G.S.122C-224.7;

2. Involuntary Commitment (Mental Illness):

G.S. 122C-251-G.S. 122C-277.

3. Substance Abuse Commitment: G.S. 122C-281-G.S. 122C-293.

4. Representation of minors in VAM/IVC cases is inherently different than in civil litigation or other special proceedings.

In other types of litigation minors usually sue by a guardian ad litem as well as having an attorney.

In VAM, IVC, and SAC, counsel’s role is that of attorney-at-law and there is no guardian ad litem provided for.

Consider the context in which the IVC laws were rewritten in 1973:

1. Portions of the IVC statutes were declared unconstitutional during the height of the civil rights movement.

2. Prior to 1973, the IVC laws were a rubber stamp procedure providing no due process for the respondent.

In Re Hayes, 18 N.C. App. 560, 197 S.E.2d 582 (1973), declared the involuntary commitment statutes unconstitutional.

04/14/1969-17 year old Gracie Mae Hayes was hospitalized at John Umstead Hospital under an MD affidavit for emergency hospitalization saying :

“I have carefully examined Gracie Mae Hayes...and believe her to be suddenly (homicidal) or (suicidal), or dangerous to himself or other” and certified that she “should be taken into protective custody and transported immediately to John Umstead Hospital...” In re Hayes

2 MDs (1 was the MD who signed the affidavit) signed a statement saying they examined Ms. Hayes and “believed her ‘to be suffering from (mental illness) or (inebricay) and to be...[in their opinions] a fit subject for admission into a psychiatric hospital.” In re Hayes

04/28/1969 notice of hearing was served on a hospital staff member for respondent at 3:00 PM and a hearing was held at 3:50 PM before the clerk of court.

The evidence was the MD affidavit, 2 MD statements, and a DSS SW affidavit saying the SW “believed Miss Hayes to be mentally ill and ‘a fit subject for admission into a psychiatric hospital’”. In re Hayes

There was an unsigned, undated “Medical Questionnaire for Physician” saying “that the conduct of the patient had been to leave ‘home several days at a time...having intercourse with several members of (the) community sustaining vaginal bleeding endangering health’”, had prior inpatient. treatment, is not a substance abuser, had no history of suicide attempts/threats, or attempting homicide.

04/28/69-Under G.S. 122-63, Gracie Mae Hayes was committed for observation and treatment for not more than 180 days.

10/13/69, the hospital recommended further commitment.

11/6/69-Hayes waived her right to appear and protest commitment.

The Clerk ordered that she be hospitalized “for a minimum necessary period under the law.” In re Hayes

10/12/9872 application for writ of habeas corpus was filed for Gracie Mae Hayes.

10/16/72 Superior Court Judge ordered her release because:

1- She had no assistance of counsel at any of the proceedings; and

2-Her restraint had been illegal because G.S. 122-59, G.S. 122-63, & G.S. 122-65 were unconstitutional because:

“[T]hey do not require adequate notice, counsel, witnesses and a hearing before a judicial officer at all stages of procedures which may result in deprivation of liberty, contrary to the mandates of due process of law.”

06/27/1973-

1-The Court of Appeals affirmed the trial court decision and

2-agreed that the cited statutes were unconstitutional, although the Court was not in “full agreement with the trial judge’s reasons for declaring the statutes unconstitutional” but did not explain how they differed.

The Court of Appeals also noted that on 05/23/73, the General Assembly had enacted an extensively rewritten IVC law.

Also see In re Imprisonment of Michael H. Long, 25 N.C.App. 702, 214 S.E.2d 626 (1975), (also appealed from a trial court hearing on application for writ for habeas corpus) which declared part of the then existing statute on voluntary admission of minors unconstitutional because there were no due process protections after the initial voluntary admission of the minor by his parent.

In its decision the Court said the voluntary admission procedures were permissible,

“However, the continued confinement

of a minor based on that procedure requires procedural safeguards consistent with the Due Process Clause. Such procedural due process should be afforded at the earliest possible time after admission.” Long, p. 630.

In the Matter of Brenda Darlene Mikels, 31 N.C. App. 470, 230 S.E.2d 155 (1976),

determined that involuntary commitment was not a dispositional alternative in juvenile delinquency proceedings.

While not on point regarding assistance of counsel, combined with Hayes and Long, Mikels demonstrates the strong NC appellate decisions during the 1970s upholding the right of due process protections for adults and minors in civil commitment and voluntary admission of minor cases.

The holdings in the cases show why such care was taken to specify due process protection by an attorney as opposed to “best interest” representation of the minor (and adult) client.

1. Ethically and legally does counsel for a minor client have a duty to act in the child’s best interest if that conflicts with the client’s express wishes?

Does the attorney have a duty to keep the child safe from himself or herself?

If so, how does the attorney provide zealous representation?

Is there an unspoken GAL role in child MH advocacy?

2. Ethically and legally what should the attorney do to provide advocacy for a client who refuses/is unable to respond or make a decision?

3. Ethically and legally does the attorney have a responsibility to determine if the child is capable of proceeding? If so, what does the attorney do if he or she believes the child is not capable of proceeding?

4. Ethically and legally what should the attorney do to provide advocacy for a client who is too young or otherwise unable to understand/ comprehend the court process?

Should the attorney decide what to do or take the child to court and have the court determine the child’s ability to comprehend?

What if that could result in the court ordering a longer

admission/commitment than the facility requests?

5. Is there an ethical conflict in notifying opposing counsel of procedural defects that could lead to dismissal of the case (which the client desires) but notice provides the facility an opportunity to correct the error, repetition, or refile a notice?

6. Ethically and legally should defense counsel call witnesses or make the hospital attorney do it?

7. Is it ethical for an attorney to continue a case because the client’s mental status makes it impossible for him or her participate in an attorney-client interview or take a position when there are fatal due process flaws in the court document (such as no service or no second exam)?

8. Ethically and legally what should assigned counsel what should assigned counsel do when client wants to represent himself or herself?

9. Ethically and legally what should assigned counsel what should assigned counsel do when client asks for legal advice about another legal matter?

What if the voluntary admission or civil commitment may have bearing on the other case?

10. Ethically and legally does counsel have a duty/responsibility to warn a third party of threats of harm from his or her client? Should the attorney do so?

11. Ethically and legally what responsibility does counsel have to prevent a delusional client from making untruthful statements to the court?

12. Does an attorney have a conflict of interest in representing a VAM or civil commitment client if he has represented an adverse party in a different proceeding such as an abuse or neglect case, TPR, divorce and custody?

13. What is an attorney’s responsibility if his or her good friend asks the attorney’s advice about a job applicant whom the friend does not know the attorney has represented in a civil commitment or VAM?

What if the attorney has information leading him or her to be certain that hiring the applicant would be a disaster for the friend?

14. Ethically and legally what responsibility does counsel have when treatment staff calls the attorney and says the child is acting out, requiring restraint, etc., after talking with counsel?

15. Ethically and legally what should the attorney do when the MD/facility tries to coerce/intimidate minor patients by telling them that if they go to court they will lose or the MD will retaliate by asking for a longer admission/commitment than he or she has already recommended?

16. Ethically and legally what should the attorney do when attending psychiatrist says providing the minor client with the medical evidence against him or her would be harmful?

17. Ethically and legally what should the attorney do when a Psychiatric Residential Treatment Facility that has been having VAM and civil commitment hearings thwarts due process by suddenly declaring itself not to be a locked facility when the facility remains a “24-hour facility that provides a structured living environment and services for a period of 24 consecutive hours or more” (G.S. 122C3-(14)(g) and still restricts the client’s freedom of movement (G.S. 122C-221(b)?

18. Ethically and legally what can counsel tell the child’s parent/guardian?

 What can counsel ask the child’s parent/guardian?

Is the answer different in VAM and IVC/SAC?

19. Ethically and legally what should assigned counsel do to provide advocacy for the minor client who is ready for discharge but who has no placement because the parent/guardian refuses to accept the child back or the agency with custody fails to provide a placement?

20. Ethically and legally what should the attorney do when the minor client is ready for discharge or there is insufficient evidence of continued admissibility/commitability (or the facility is not the least restrictive setting or is inappropriate) but the facility/court says the child is dangerous to self because he or she has no placement?

21. Ethically and legally what should assigned counsel do when his or her client’s hearing is delayed because the client was retained locally under the 7-day hold provision and is admitted to the 24-hour facility too late to have a hearing within the 1o day time limit?

22. Ethically and legally when a client objects to venue and the county where the petition originated is dilatory in scheduling the hearing within the statutorily prescribed time period, does original appointed counsel have a responsibility to intervene in any way in the other district? If so, how?

23. Ethically and legally what should an attorney do when the court flagrantly violates the law, such as summarily continuing all the cases beyond 7 days, refusing to hold facilities to procedural laws regarding notice, etc.

24. Ethically and legally what should an attorney do when told by court official or another attorney that the as defense counsel in VAM/IVC/SAC cases the attorney’s job is to keep people from contesting and appearing?