Talking to the incompetent client and Happy New Year!
Hello Friends! What an odd feeling it is, typing 2022 for the first time!
I’ve gotten several questions on this subject, and I suspect it’s a question many others may have, so I want to respond in newsletter form.
Many of you asked about Jim Archibald’s statement in court last week that he wanted the opportunity to consult with his client. You questioned how he could consult meaningfully with someone who is incompetent.
Rather than a light that is either on or off, I think of competence as a light on a dimmer switch. The spectrum of competence can be like the light, shading brighter or darker with time. The patient’s treatment plan aims to shift that lever ever so slightly in the brighter direction every day. While medication is usually necessary, it’s coupled with daily reality checks that reinforce and encourage the patient to remain grounded in what is real rather than their delusions. Contrary to most Hollywood portrayals, patients are rarely delusional all the time, and treatment is often about reinforcing and extending the lucid periods. Further, competence is as much a legal construct as a medical one in this instance.
A lawyer’s obligation to a client with diminished capacity is spelled out in the Rules of Professional Conduct. In Idaho, that is Rule 1.14. The applicable rule and the commentary is as follows:
RULE 1.14: CLIENT WITH DIMINISHED CAPACITY (a) When a client’s capacity to make adequately considered decisions in connection with a representation is diminished, whether because of minority, mental impairment or for some other reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client. (b) When the lawyer reasonably believes that the client has diminished capacity, is at risk of substantial physical, financial or other harm unless action is taken and cannot adequately act in the client’s own interest, the lawyer may take reasonably necessary protective action, including consulting with individuals or entities that have the ability to take action to protect the client and, in appropriate cases, seeking the appointment of a guardian ad litem, conservator or guardian. (c) Information relating to the representation of a client with diminished capacity is protected by Rule 1.6. When taking protective action pursuant to paragraph (b), the lawyer is impliedly authorized under Rule 1.6(a) to reveal information about the client, but only to the extent reasonably necessary to protect the client’s interests. Commentary [1] The normal client-lawyer relationship is based on the assumption that the client, when properly advised and assisted, is capable of making decisions about important matters. When the client is a minor or suffers from a diminished mental capacity, however, maintaining the ordinary client-lawyer relationship may not be possible in all respects. In particular, a severely incapacitated person may have no power to make legally binding decisions. Nevertheless, a client with diminished capacity often has the ability to understand, deliberate upon, and reach conclusions about matters affecting the client’s own well-being. For example, children as young as five or six years of age, and certainly those of ten or twelve, are regarded as having opinions that are entitled to weight in legal proceedings concerning their custody. So also, it is recognized that some persons of advanced age can be quite capable of handling routine financial matters while needing special legal protection concerning major transactions. [2] The fact that a client suffers a disability does not diminish the lawyer’s obligation to treat the client with attention and respect. Even if the person has a legal representative, the lawyer should as far as possible accord the represented person the status of the client, particularly in maintaining communication.
In cases where the client is permanently incompetent, the court may appoint someone to make legal decisions for the client. That person is called a Guardian ad Litem. In some states, GALs are also appointed for children in contested divorce and child welfare cases, and you may have heard about the GAL appointed for Tylee in Lori’s divorce from Joe Ryan.
To illustrate, I once represented a child in a child welfare case. My client’s mother was severely mentally disabled, and both her children were conceived as the result of caregivers who took advantage of the mother’s diminished capacity. The children themselves had special needs. The mother could not direct her attorney, so the court-appointed her a Guardian ad Litem. The GAL’s job was to, wherever possible, ascertain the mother’s wishes and advocate for her in her place. Where the intention is to restore a party to competence, it’s unusual for the court to appoint a GAL.
As you can see from the rule of professional conduct I’ve cited above, Jim Archibald must maintain as normal an attorney/client relationship as possible with Lori Vallow and explain the details of her case to her as thoroughly as possible. I have often made this trip to a treatment facility to talk with a client. When possible, I would usually repeat the information in a letter so that the client could review the information more than once and process it as needed with a treatment provider. That correspondence is protected from later disclosure by the attorney-client and the medical professional-patient privileges.
You can see from these rules, Lori is entitled to be informed about her case and consulted about her wishes at every juncture. That doesn’t mean she is competent. It only means that she is permitted to be involved as much as she is able. I hope this explanation helps.
Some of you also asked about perjury charges and disbarment in Mark Means’ future. Both are certainly possibilities. I believe Means is already under investigation with the Idaho Bar. Unfortunately, the Idaho Bar won’t confirm or deny an open disciplinary case. They only release information if and when the attorney is sanctioned.
Now, on a different note, this brand spanking new year is upon us. As always, New Year’s Day brings the opportunity to reflect on the past year and set intentions for the new one. 2021 was a year of tremendous change for me. I entered 2020, set on using the COVID-19 lockdown as a time to nurture my fledgling writing career. That intention snowballed into not one but two books. In 2021, I finished The No Nonsense Guide to Divorce. The book is a straightforward and often humorous look at divorce, directed toward the Millennial generation. It is scheduled for release on March 15, 2022, and is available for preorder on Amazon. I also contracted with Pegasus Books to write Children of Darkness and Light, The Lori Vallow Story. I’m grateful that Pegasus and I share the same vision for the book. Fortunately, they are more concerned with completeness and quality than speed and are willing to wait until after the trial in January of next year.
Still, 2022 won’t be an uneventful year for me. In the first half of the year, my family and I will be selling our home in Mesa, AZ, and moving to Boise, Idaho. As we settle in, I will be traveling from home in Boise to Rexburg to understand the environment and the community and begin interviews. My retired fighter pilot husband will, I hope, be recovering and regaining strength and mobility after his second major back surgery yesterday; My 88-year-old mother will be settling into an assisted living residence and making new friends. I share these things with you because you have welcomed me into your community and become my friends.
Too many of you have experienced incredible loss and sadness in the past two years. I know that people in this community have experienced both the loss of loved ones and the loss of their livelihoods; I know you’ve experienced health challenges and loneliness. Yet, through it all, you’ve shown up for each other and for Colby and Kelsee Ryan and the entire Vallow family.
Thanks to you all for your support, and here’s to a 2022 full of love and peace and promise for us all. Cheers.
Look for The No Nonsense Guide to Divorce on Amazon, at Barnes, and Noble, or at your independent bookseller. Pre-order on Amazon today.
