Every client is unique, and every client’s case has its own particular features. How you deal with that uniqueness can have a large impact when trying to resolve the case.
By and large, your clients will be adults who are competent and able to give you instructions when needed. But what about the other segment of the client population, who might be called “vulnerable” clients? They come in many forms: minors, the elderly, those with a physical, mental or intellectual disability, clients with cultural differences, or any combination of these features. To advocate successfully for these people, it’s important to be mindful of their needs.
Clients with Diminished Capacity
Rule 3.2-9 of the Rules of Professional Conduct speaks to your obligations to a client whose ability to make decisions is “impaired because of minority, mental disability, or for some other reason” requiring you to “as far as reasonably possible, maintain a normal lawyer and client relationship” with that client. Although this may not be possible with a very young child, or a profoundly mentally disabled client, this Rule requires that an effort be made to establish a functional, positive, lawyer/client relationship.
The commentary under the Rule acknowledges that factors such as age, intelligence, experience, and mental and physical health may affect a client’s ability to make decisions and that these factors may change from time to time. Thus it is always important to have up to date information on your client’s status.
The Rules of Civil Procedure also offer guidance on how to deal with parties under disability. Rule 7 sets out the procedures to be followed, requiring the appointment of a litigation guardian to act on behalf of the person under disability, which includes minors and mentally incapable persons, and mandating court approval of any settlement of that person’s claim. That requirement means that, when mediating settlement of the claim of a party under disability, the need for court approval must be kept in mind. Although the courts usually are prepared to approve a settlement where the litigation guardian and the lawyer acting in the case submit affidavit material supporting the settlement terms, it is not a rubber-stamp exercise and the court will decline to approve the settlement if it feels it is not in the interests of the disabled party.
Note that Rule 7.08 (4) (c) carves out a special category for a minor who is over the age of sixteen years, requiring his or her consent to a proposed settlement. This is in keeping with other legislation, which allows a sixteen-year-old to drive, give consent to heath care and live independently. You may be retained when the minor is younger, but if they turn sixteen before the mediation and the majority of your client contacts have been with the minor’s litigation guardian (typically, a parent), you risk not having the necessary relationship to get the minor client’s consent when needed.
The best way to avoid this is to include the young person in your discussions throughout the case and especially during a mediation. A teenage client may have their own views about what is important to them, which may not be communicated through the litigation guardian. This may happen particularly in families where restrictive social norms may otherwise preclude the young person from being included in the decision-making process. If you have established and maintained a lawyer/client relationship with the person under disability as well as the litigation guardian, you can satisfy the twin obligations of following the instructions of the litigation guardian while ensuring that the minor client’s interests are advanced.
How best to do that? Establish a line of communication and a pattern of inclusion long before the mediation. Explain fully the obligation to look after the minor’s interests. Keep your language straightforward and age-appropriate. Avoid legalese. Encourage questions. Ask what’s important to them; they may not have a specific view, or they may defer to the litigation guardian, but they’ll appreciate that you asked.
If needed, your mediator can be part of this process. They will be a new face in the proceeding and may be used as a resource if there are any issues of concern that arise between the minor and the litigation guardian. The minor might want a chance to make his needs known without expressing them through the litigation guardian. A skilled mediator can help to ensure that any differences of opinion between the minor client and the litigation guardian are addressed before settlement is concluded.
If it appears that the litigation guardian is not acting in the best interests of the minor, you may need to adjourn the mediation to allow you to determine whether it is necessary to appoint a substitute litigation guardian. If your mediator has spent some time with your clients, they may be able to give you some insight on the dynamics between the litigation guardian and the minor client, to help you make that decision.
Mentally Incapable Persons
With respect to mentally disabled clients, Rule 7 doesn’t contemplate the same involvement in court approval of the settlement, but in all other respects the basic procedure is the same. Outside of the requirements of the Rule, the same principles of client relations apply. You’ll want to determine to what extent the individual is able to understand what is going on and how much that client’s involvement is appropriate.
Depending on the level of disability, you may still be able to involve the disabled person in the decision-making process. Speak to their level of ability. Avoid complex explanations and legal jargon. Give them the time necessary to digest the information and make their wishes known. Even if the person isn’t capable of giving instructions, it is their interests you’re advancing and they must be acknowledged as much as possible. As with the minor client, be alert for any indications that the litigation guardian is not acting in the best interests of the disabled party.
Finally, keep in mind that a person’s disability may change over the course of the litigation, for better or for worse. The client’s state of mind at the outset of a case may be quite different by the time you are setting up the mediation. Given the goal of resolving the case, it’s a good time to reassess whether the disabled client’s condition has changed to allow more or less involvement in the process. Prepare your client accordingly. Let your mediator know in advance what your assessment is and the extent to which your mentally disabled client can participate.
The first question might be, “Who is considered to be elderly”? At one time, sixty-five was considered an advanced age, but don’t tell a baby-boomer that today!
In this discussion, “the elderly” are those people who are competent, but vulnerable due to the cognitive and physical limitations that may be part of the aging process, social isolation due to physical or mental barriers, or dependency on caregivers for decision-making. While people in this group may be perfectly capable of making their own decisions, they may be unaccustomed to doing it and intimidated by the litigation process.
In most cases, caregivers are well-meaning, but may intervene in any attempt to have a meaningful discussion with the elder. In some cases, caregivers may have their own interests at heart, and may need to be sidelined from the decision-making process. At mediation, the influence of either of these caregiver types may be diminished or removed by having the mediator reinforce the concept that only parties to the litigation are allowed to be privy to the confidential mediation process. Consideration should be given to allow access if the elder person genuinely wants the support of a non-party and your assessment is that it would be in the client’s best interests to do so.
As with other vulnerable clients, the solution is to work to establish a relationship with the elderly client to ensure that they understand the process, know what the possible outcomes might be, and participate in the final resolution of the case. An elderly client may be more concerned about the passage of time in a case, and want an earlier resolution than family members might want. Waiting for a trial may not be in their best interests. Scheduling an early mediation might best suit their needs.
Take into account the person’s physical and mental endurance. A few shorter preparation sessions, perhaps at their residence, may suit them better than a long meeting just before the mediation. If the client lives in a facility that has meeting rooms, they may be more comfortable if the mediation is held there.
Consider whether a half-day mediation is sufficient or, conversely, whether the client will need a full day to allow for extra time to receive information, digest it, discuss it with anyone attending as a support person, and give instructions. Take breaks when the client seems to be flagging. Once again, use everyday language, explain the process, be supportive of their needs, and above all, listen to what they have to say.
Your mediator may be more age-adjacent to your client than you are, and your client may be relaxed by seeing some grey hair around the mediation table. Take advantage of that to help set your client at ease in an unfamiliar setting.
Vulnerable clients are entitled to legal representation as much as any other person, but they have special needs. In cases of legal disability, legislation speaks directly to that standing. All have the right to a lawyer/client relationship, but it is your training and experience that will determine what form that relationship takes. In most cases, the litigation guardian, family member or caregiver assisting the vulnerable person will work for their best interests, but in situations where they don’t, you may have the task of protecting the vulnerable client from those who should be protecting them.
The expression “Don’t judge a book by its cover” is particularly apt. Each vulnerable person is an individual with unique needs. Your job is to determine how best to advance that client’s case, taking into account those needs and determining how to make the legal system work best for them.