The Veterans' Lawyer as Counselor: Using Therapeutic Jurisprudence to Enhance Client Counseling for Combat Veterans With Posttraumatic Stress Disorder

• Author: Captain Evan R. Seamone
• Pages: 06

Author's Disclaimer: Divergent views on Posttraumatic Stress Disorder (PTSD) are underscored by recent efforts to revise the clinical diagnostic criteria. As a result of inconsistent perspectives on diagnosis or treatment, authors are hard-pressed to identify a single or perfect solution to the problem. Legal organizations may desire to approach the attorney's role in a cautious manner, limiting the attorney's response to decisional impairments that stem from PTSD symptoms. This article represents only the individual views of the author. The author was not directed to write this article in his military capacity and wrote it on his own time. By surveying assessment and counseling techniques and suggesting how attorneys might benefit from them, this article does not suggest that these approaches must or should be adopted by all attorneys providing legal services to clients. This article previews the possibilities of an enhanced client counseling role with the hope that consideration of these ideas will enrich the dialogue in the military and civilian sector on the best ways to serve clients with unique needs.

THE VETERANS'* LAWYER AS COUNSELOR: USING THERAPEUTIC JURISPRUDENCE TO ENHANCE CLIENT

COUNSELING FOR COMBAT VETERANS WITH POSTTRAUMATIC STRESS DISORDER†

Captain Evan R. Seamone‡

1. Introduction

   As the campaigns in Iraq and Afghanistan continue, both military and civilian lawyers will encounter an increasing number of clients with Posttraumatic Stress Disorder (PTSD).1 Some of these clients will still need clinical diagnosis and treatment at the time they visit the attorney's office.2 Whether the lack of clinical involvement stems from the problems of an overtaxed medical system3 or the veteran's own

   reluctance to seek treatment,4 systemic failures are transforming attorneys into PTSD "first responders."5 The first article of this series proposed a new perceptual frame, which acknowledges not only that the attorney can play a role in detecting PTSD symptoms and encouraging clinical diagnosis, but also that the attorney may be contending with a client whose decisions are impaired by the same condition.6 This article provides practical tools for the lawyer confronted with such dilemmas, including a simple screening method for PTSD and Traumatic Brain Injury (TBI), exercises to identify and neutralize a client's distorted thoughts, and resources to avoid retrauma and stress responses in the office or the courtroom.

   Many of the methods proposed in this article originate from the discipline of psychology. In response to concerns that such tools are reserved for licensed mental health professionals, this article recognizes that mental health providers are clearly in the best position to diagnose and treat PTSD. While this article does not suggest the attorney is a substitute for a licensed clinician, it recognizes that attorneys are in a unique position to encourage clients to seek mental health assistance and to help clients understand legal issues in a way mental health professionals simply cannot.7 This article explores the contours of the attorney's enhanced counseling role with the hopes that an ethic of care comes naturally in the legal services provided to veterans with PTSD.

   This article challenges a common approach to client counseling. All too often, attorneys adopt a "too much information" perspective when presented with a client's emotional baggage.8 Some may be brilliant on

   matters of legal interpretation but, nevertheless, incompetent in the ways they relate to clients.9 Many lawyers have begun to recognize the values of an enhanced approach to client counseling where they must address emotional influences as part of their legal role.10 In certain areas of law, courts have mandated this role in the provision of legal services.11 They have incorporated "therapeutic jurisprudence," as a baseline for representation.12 As a subset of the comprehensive law movement,13 therapeutic jurisprudence is a philosophy of law practice in which the attorney is "sensitive to the therapeutic and antitherapeutic consequences

   that sometimes flow from legal rules, legal procedures, and the roles of legal actors."14

   In the representation of a client, therapeutic jurisprudence includes an exploration of the "law's healing potential" and maximization of the client's emotional well-being.15 A component of this general framework includes the concept of "lawyer as counselor"16 and "client-centered" counseling,17 terms which recognize that the attorney's obligation to a client includes far more than gathering facts, litigating in court, or performing administrative tasks.18 In this therapeutic role, the attorney becomes a part of the client's world to better assist the client in making raw, real-life, hard decisions.19 Criminal defense attorneys practice therapeutic jurisprudence when they work with clients to develop a relapse prevention plan that can be offered to the court to address the danger of recidivism after the case is long over.20 Family law attorneys

   practice therapeutic jurisprudence when they investigate with a testator the potential turmoil that may result for the family when one of many children is excluded from a will.21

   Despite the fact that there are no military regulations or pamphlets spelling-out how to incorporate therapeutic jurisprudence in the representation of a client, military and civilian attorneys often make do. They practice therapeutic jurisprudence, perhaps without even labeling it as such, every time they coordinate with a commander to ensure that an accused can go on leave before a court-martial or interview beneficiaries of an elderly testator to better anticipate the likelihood of a will contest. The thrust of this article is that therapeutic jurisprudence and client-centered practice is not elective or optional when attorneys represent combat veterans affected by Posttraumatic Stress Disorder (PTSD) but rather an obligation.

   This article has six parts. Part II explores the necessary overlap between the spheres of psychology and the law. It addresses the general reluctance of attorneys to approach issues from a psychological perspective and identifies situations in which attorneys must nevertheless venture into such territory alone, without the guidance of mental health professionals. It examines the positions of various organizations on an attorney's "work of a psychological nature," including state legislatures, psychology licensing boards, and professional associations. It concludes that much leeway is accorded to use psychological tools when the tools relate to the provision of necessary legal services, when attorneys provide appropriate disclaimers, and when they remain within the bounds of legal professional responsibility rules. Part II also provides a sample client disclaimer to provide adequate notice of the attorney's limitations and lack of psychological expertise when using psychological exercises or charts.

   Having established the attorney's freedom to use psychological techniques, Part III draws an important comparison between veterans' counsel and elder law attorneys who must often screen their clients for decisional impairment and mental conditions. This Part identifies two simplified screening tools that fall short of official clinical diagnosis but still provide enough information about PTSD and TBI to assist the attorney from a legal perspective. This Part also provides a checklist, modified from the recommendations of the American Bar and American Psychological Associations, to help veterans' counsel determine whether referral to a mental health provider is necessary as a result of diminished capacity, rather than PTSD symptoms which normally do not mandate court intervention.

   Part IV identifies practical steps attorneys can take to neutralize PTSD's negative influences on the representation. This Part focuses exclusively on planning considerations that anticipate "psycholegal soft spots"-aspects of a case that are likely to trigger stress responses- during the course of trial preparation or court proceedings.22 This Part introduces a series of questions and prompts to increase both the attorney and client's awareness of potential PTSD triggers and measures to limit their aggravating effects. It also introduces the concept of notebooks, in which the client will keep all information related to the case, and peer support networks that will overcome the common problems of information mismanagement and missed appointments.

   In crossing the threshold from prevention of PTSD triggers to PTSD trigger responses, Part V offers prophylactic measures to ensure that attorneys remain within the boundaries of legal counseling. Although statutes impose few restraints,23 the enhanced counseling function of veterans' counsel envisions numerous limitations on a lawyer. The techniques offered in this article are limited to breathing and relaxation exercises, cognitive behavioral therapy forms and worksheets, and self-guided audio-recordings. Where any techniques are similar to ones used by licensed clinicians, this article adopts simplified versions that have been evaluated by therapists and vetted for public consumption in the form of self-directed guides. In other words, while many of the techniques recommended by this article have their roots in psychological studies and clinical practice, the specific tools featured in these pages are drawn from self-help books that can be found in most bookstores. The

   coupling of these resources with appropriate notice to clients will ensure that attorneys fulfill their legal counseling function and do not inadvertently become clinical psychologists or social workers.

2. Preliminary Considerations for the Attorney's Use of Psychological Techniques

   A. The Stigma of Using Psychological Methods in Law Practice

   Although many clinicians and legal practitioners recognize a pressing need for lawyers to learn about psychology, address clients'...