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Representing Clients with Diminished Decision-Making Capacity: What the Model Rules Do and Don't Tell You

Level: Advanced
Runtime: 93 minutes
Recorded Date: February 05, 2020
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 • What is the Legal Concept of "Capacity"?
 • Relevant Model Rules
 • Avoiding Conflicts of Interest
        - Rule 1.7, comment [1]
        - Rule 1.8(f)
 • Confidentiality of Information
        - Rule 1.14(c)
        - Rule 1.6
 • Client with Diminished Capacity
        - Rule 1.14(a)
 • Fulfilling Obligations to Communicate
        - Rule 1.4
 • Representation Objectives vs. Means - Rule 1.2
 • Terminating Representation - Rule 1.16
 • Protective Measures
 • Conclusion

Runtime: 1 hour, 32 minutes
Recorded: February 5, 2020


Lawyers practicing in any legal context are likely to encounter clients who appear to have diminished decision-making ability, raising difficult and confusing ethical questions. These dilemmas are particularly stark in proceedings where the client's mental status or functional ability are called into question (e.g., guardianship, involuntary commitment, etc.). Using the lens of these proceedings, this seminar will explore how lawyers representing people with psychiatric or cognitive conditions whose decision-making abilities are in question can navigate their ethical duties under the ABA Model Rules of Professional Responsibility. Our experts will focus on assessment of the client's capacity and strategies for maintaining as "normal" a representation as possible.

Using hypotheticals and role-play scenarios, the webinar will demonstrate useful approaches and techniques for how to improve communication with the client, use supported decision-making, and request possible accommodations during the legal proceedings. Also discussed will be the circumstance under which it may be necessary for the lawyer to consider whether to withdraw from representation.

This program was recorded on February 5th, 2020.

Provided By

American Bar Association
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Leslie Salzman

Clinical Professor of Law & Director of Clinical Legal Education
Benjamin N. Cardozo School of Law

Leslie Salzman co-directs the civil litigation clinic at Cardozo School of Law, which represents low-income individuals, most of whom are elderly or have disabilities, in individual and class action litigation primarily in the areas of elder and disability rights and benefits, and housing and consumer law. Her class action litigation includes: Pfeffer v. New York City Department of Finance (E.D.N.Y.); Rodriguez v. City of New York (2d Cir.; SDNY); Mayer v. Wing (S.D.N.Y.); and Medicare Beneficiaries Defense Fund v. Empire Blue Cross Blue Shield (E.D.N.Y.). She also teaches disability law at Cardozo and has lectured and written on issues relating to guardianship and disability rights. See Rethinking Guardianship (Again): Substituted Decision Making as a Violation of the Integration Mandate of Title II of the Americans with Disabilities Act, 81 University of Colorado Law Review 157 (2010); Guardianship for Persons with Mental Illness—A Legal and Appropriate Alternative?, 4 St. Louis U. J. Health L. & Pol'y 279 (special issue, 2011); Using Domestic Law to Move Toward a Recognition of Universal Legal Capacity for Persons with Disabilities, Cardozo Law Review, Vol. 39, 521-555 (December 2017).

Prof. Salzman has taught mediation at Cardozo Law School and in several programs outside the United States. Since 2002, she has been mediating community, criminal and family cases at the New York Peace institute and for the last several years has also been mediating civil rights and employment discrimination cases in the U.S. District Court for the Southern District of New York.

Prior to joining the Cardozo faculty, Prof. Salzman was an attorney at New York Lawyers for the Public Interest, where she specialized in litigation concerning the rights of individuals with physical and mental disabilities. After her graduation from New York University School of Law, she served as pro se law clerk in the United States Court of Appeals for the Second Circuit.

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Morgan K. Whitlatch

Legal Director
Quality Trust for Individuals with Disabilities

Morgan K. Whitlatch is the Legal Director of Quality Trust for Individuals with Disabilities, an independent, non-profit advocacy organization advancing the interests of people with developmental disabilities since 2002. She is also the Lead Project Director of the National Resource Center for Supported Decision-Making (NRC-SDM). Ms. Whitlatch has devoted her legal career to working with and on behalf of people with disabilities and older adults in matters involving capacity, guardianship and alternatives, and the right to self-determination; community integration; living life free from abuse and neglect; and accessing public benefits and services. She has extensive experience in implementing systemic policy, practice, and training initiatives, including those of the NRC-SDM and the Jenny Hatch Justice Project (JHJP).

Notably, Ms. Whitlatch co-represented Ms. Hatch, an adult with Down syndrome, in fighting for her right to engage in Supported Decision-Making as an alternative to permanent plenary guardianship. Under her leadership, JHJP also represented the first senior in D.C. to have her guardianship terminated in favor of Supported Decision-Making. Ms. Whitlatch also served as Project Director under cooperative agreements with the National Council on Disability that resulted in to two ground-breaking reports, “Beyond Guardianship: Towards Alternatives That Promote Greater Self Determination for People with Disabilities” (2018) and “Turning Rights into Reality: How Guardianship and Alternatives Impact the Autonomy of People with Intellectual and Developmental Disabilities” (2019).

Prior to joining Quality Trust in 2009, she was an attorney at Disability Rights Rhode Island, the state’s protection and advocacy system for people with disabilities, including those related to mental health, developmental disabilities, traumatic brain injuries, physical disabilities, and other conditions. Morgan has been recognized by Georgetown University, Human Rights Action - Amnesty International, as making outstanding contributions through her work as a human rights practitioner.

Ms. Whitlatch graduated with honors from Georgetown University Law Center; and with honors, Phi Beta Kappa, from Wesleyan University.

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Henry Dlugacz

Beldock Levine & Hoffman LLP

Henry Dlugacz is a partner at the New York City law firm Beldock Levine & Hoffman LLP where he specialized in mental health related issues. He has represented hospitals, families and people who are the subject of guardianship, civil commitment, medication over objection and assisted outpatient treatment proceedings hundreds of proceedings, and been appointed by various judges as a court evaluator in guardianship matters. He is also active as a court-appointed monitor of the remedial phase of class action institutional reform litigations involving jail, prison or forensic hospital systems. A licensed social worker, he is a clinical assistant professor of psychiatry and behavioral sciences at New York Medical College and formerly an adjunct professor of law at New York Law School and St. John’s University School of Law, as well as a co-founder and former co-chair of the New York State Bar Association’s Committee on Mental Health Issues. He is the author and editor of numerous books, book chapters and articles, and lectures frequently both in the United States and internationally.

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