Meeting the Increasing Demands on Family Attorneys Representing Clients with Mental Health Challenges

• Date: 01 January 2016
• DOI: http://doi.org/10.1111/fcre.12202
• Published date: 01 January 2016

MEETING THE INCREASING DEMANDS ON FAMILY ATTORNEYS

REPRESENTING CLIENTS WITH MENTAL HEALTH CHALLENGES

Lynda E. Frost and Connie J. A. Beck

The changing nature of family court and increasing awareness of mental health challenges force family lawyers to navigate

tricky legal, ethical, and practical issues. This article reviews increased complexity for litigants as a result of procedural

changes in the current family court, the rise of pro se representation, and statutory changes encouraging shared parental care of

children. It analyzes common legal and ethical challenges for attorneys representing potentially impaired clients. It details prac-

tical means of supporting clients and increasing their capacity to engage meaningfully in family court matters. This roadmap

can guide lawyers in improving their knowledge and skills in order to meet legal and ethical standards for representing family

law clients with mental health challenges.

Key Points for the Family Court Community:

Trends such as procedural changes in the current family court, the rise of pro se representation, and statutory changes

encouraging shared parental care of children require significant engagement and competence on the part of litigants.

Family attorneys have a complex task in representing a possibly impaired client, as they must gauge the client’s level

of functioning throughout the legal process to ensure the client has sufficient capacity to participate meaningfully.

Legal requirements and ethical guidelines address and shape many aspects of an attorney’s interactions with a client

living with mental illness.

Experienced attorneys can support clients in maximizing their capacity to engage in family court proceedings.

Keywords: Capacity; Dementia; Divorce; Ethics; Family Law; Legal Competence; and Mental Illness.

INTRODUCTION

Most people are not at their best when they are going through a divorce. The stress, disappoint-

ment, and powerful emotions can negatively impact a person’s level of functioning. These strong

negative emotions can also exacerbate symptoms of mental illness. A percentage of individuals in

divorce proceedings will have significant mental health challenges that affect their capacity to partici-

pate in the proceedings. And, changes in modern divorce procedures make representing a client with

impaired mental functioning or a serious mental illness an increasingly complex endeavor.

This article details how the changing nature of family court and increasing awareness of mental

health challenges force family lawyers to navigate tricky legal, ethical, and practical issues. It expli-

cates how challenges arise, in part, because of procedural changes in the current family court, the rise

of pro se representation, statutory changes encouraging shared parental care of children, and

increased understanding of and sensitivity to mental illness. In response to an identified need for

clearly articulated standards and guidelines in order to protect litigants’ rights and address issues that

occur when one or more litigants in a family law case appear to be significantly affected by an

untreated mental illness (Kourlis, Taylor, Schepard, & Pruett, 2013), this article analyzes legal and

ethical issues for attorneys representing potentially impaired clients. Finally, it details practical

means of supporting clients in hopes of increasing their capacity to engage meaningfully in family

court matters. Lawyers must improve their knowledge and skills in order to meet the legal and ethical

standards for representing family law clients with mental health challenges.

Correspondence: lynda.frost@austin.utexas.edu

FAMILY COURT REVIEW, Vol. 54 No. 1, January 2016 39–50

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C2016 Association of Family and Conciliation Courts