February 2013 Bar Bulletin
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February 2013 Bar Bulletin

In the Shadows: Dealing with Mental Health Issues

By Lisa DuFour and Sharon Friedrich


The balance of power in a family law case can be tipped precariously toward one party as the primary parent if the other party has a mental health issue. In addition, it is extremely difficult to know if you are providing appropriate legal advice if your client has mental health issues.

There are numerous issues the family law attorney has to be cognizant of and recognize as impediments to capably handling a case where mental illness is a component. Between 28 and 30 percent of the U.S. population has a mental health disorder, substance abuse disorder or both.1 There are no known statistics, but the percentage of people involved in family law cases who have significant mental health issues is probably much higher. This is especially true in high-conflict cases.

This article discusses some of the challenges and resources available when a family law party has mental health issues.

The Client

The Rules of Professional Conduct govern how an attorney should communicate with a client who has mental health issues. Although it may be difficult, the attorney is required to obtain the client's "informed consent" regarding decisions that have to be made.2 The attorney is required to communicate with the client and explain matters "to the extent reasonably necessary to permit the client to make informed decisions regarding the representation."3

There also are specific rules for dealing with a client with diminished capacity. The attorney is required to maintain a normal client-lawyer relationship to the extent possible.4 If the client is at risk of substantial physical, financial or other harm and cannot act in his or her own interest, then the attorney may take reasonable protective action.5 This may include consulting with individuals or entities that can take action to protect the client.6 In addition, if all else fails, the attorney may seek appointment of a guardian ad litem, conservator or guardian for his/her client.7

What this means in day-to-day practice is that if your client is suicidal or at risk in another way, you may call the police or the King County Crisis and Commitment Services (KCCCS) without violating the RPCs if you only reveal the information that is reasonably necessary to protect the client.8 KCCCS has a hotline for emergencies (206-263-9200) and will send out a mental health professional to evaluate the situation if needed. The phone line is staffed 24 hours a day, 365 days a year. If you are unsure about what could happen once KCCCS is involved, its website has a list of answers to "Frequently Asked Questions about Involuntary Treatment and Mental Illness Laws."9

The following is a very brief description of what could happen. If the client is severely impaired and is at risk of self-inflicted harm or harm to others (or their property), or is gravely disabled, a designated mental health provider (DMHP) will evaluate the situation.10 The DMHP can immediately detain the person (for up to 72 hours) if there is an imminent danger - "reasonable cause to believe that such person is suffering from a mental disorder and presents an imminent likelihood of serious harm or is in imminent danger because of being gravely disabled."11 The mentally ill person can be detained for up to three hours to allow for the DMHP to evaluate the person.12

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