Professional responsibility in elder law: A synthesis of preventive law and therapeutic jurisprudence

Behavioral Sciences and the Law

Volumn 14, Issue 4, 1996, Pages 459-478

  Stolle, Dennis P ^a  

^a UNIVERSITY OF NEBRASKA LINCOLN   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

AGING; ARTICLE; COGNITION; FINANCIAL MANAGEMENT; JURISPRUDENCE; MEDICOLEGAL ASPECT; MENTAL DEFICIENCY; RESPONSIBILITY;

AGED; COUNSELING; ETHICS, PROFESSIONAL; HUMANS; JURISPRUDENCE; MENTAL COMPETENCY; MODELS, THEORETICAL; PROFESSIONAL COMPETENCE; QUALITY OF LIFE; STEREOTYPING; UNITED STATES;

EID: 0030428022     PISSN: 07353936     EISSN: None     Source Type: Journal    
DOI: 10.1002/(SICI)1099-0798(199623)14:4<459::AID-BSL257>3.0.CO;2-V     Document Type: Article

References (117)

1. Judith W. McCue, et al., Disability Planning for the Senior Citizen, C126 ALI-ABA 339 (1995).
2. ALI-ABA Id(1995).
3. STATISTICAL RECORD OF OLDER AMERICANS 10 (1994) [hereinafter STATISTICAL RECORD]
4. Lawrence A. Frolik & Alison P. Barnes, An Aging Population: A Challenge to the Law, 42 HASTINGS L. J. 683 (1991).
5. STATISTICAL RECORD, supra note 3 at 73.
6. STATISTICAL RECORD, supra note 3 at 82.
7. Frolik & Barnes, supra note 3.
8. STATISTICAL RECORD, supra note 3 at 624 & 780. Frolik & Barnes, supra note 3. Sec also LAWRENCE A. FROLIK & MELISSA C. BROWN, ADVISING THE ELDERLY OR DISABLED CLIENT: LEGAL, HEALTH CARE, FINANCIAL, AND ESTATE PLANNING (1992).
9. For another argument that lawyers' professional responsibility ought to include advising clients on relevant extra-legal matters see Peter Margulies, "Who Are You to Tell Me That?": Attorney-Client Deliberation Regarding Nonlegal Issues and the Interests of Nonclients, 68 N.C. L. REV. 213 (1990).
10. MODEL RULES OF PROFESSIONAL CONDUCT Rule 2.1. (1993).
11. David Finkelman & Thomas Grisso, Therapeutic Jurisprudence: From Idea to Application, 20 NEW ENG. J. ON CRIM. & CIV. CONFINEMENT 243, 245 (1994).
12. NEW ENG. J. ON CRIM. & CIV. CONFINEMENT Id. (1994).
13. See also, David B. Wexler, Therapeutic Jurisprudence in Clinical Practice, 153 THE AM. J. OF PSYCHIATRY 453 (1996) (discussing the therapeutic application of the law by lawyers and clinicians);
14. David B. Wexler, Applying the Law Therapeutically, 5 APPLIED & PREVENTIVE PSYCHOLOGY 179 (1996) (discussing the therapeutic application of existing law),
15. reprinted in DAVID B. WEXLER & BRUCE J. WINICK, LAW IN A THERAPEUTIC KEY: DEVELOPMENTS IN THERAPEUTIC JURISPRUDENCE (1996) (collecting recent writings on therapeutic jurisprudence, including several articles herein cited to their original source).
16. Louis M. Brown, The Other Side of the Law, National Center for Preventive Law Web Page, available at http://www.pacificrim.net/~ncpl/ (1995).
17. For example, in a description of the PREVENTIVE LAW REPORTER, the Editors state that "You will not find lengthy discussions reflecting on the state of the law. You will not find aspirational pieces proposing new legislative agendas. You will not find pages of footnotes or unending citations. What you will find is practical advice." The Other Side of the Law, Id. (1995).
18. Louis M. Brown, The Scheme: Maximize Opportunities, Minimize Future Legal Trouble, 6 PREVENTIVE L. REP. 17 (1987).
19. This term has been used by Professor Wexler with reference to lawyers who are attuned to the therapeutic needs of their clients. David B. Wexler, An Introduction to Therapeutic Jurisprudence, in THERAPEUTIC JURISPRUDENCE: THE LAW AS A THERAPEUTIC AGENT 3 (David B. Wexler ed., 1990).
20. THERAPEUTIC JURISPRUDENCE: THE LAW AS A THERAPEUTIC AGENT Id. at 8.
21. David B. Wexler & Bruce J. Winick, Therapeutic Jurisprudence as a New Research Tool, in ESSAYS IN THERAPEUTIC JURISPRUDENCE (David B. Wexler & Bruce J. Winick, eds. 1991).
22. Wexler, supra note 15.
23. Wexler, supra note 15 at 8.
24. For a description of the potential of therapeutic jurisprudence as a program of empirical research see Wexler & Winick, supra note 17.
25. Wexler, supra note 15; Cf. supra note 11 at 453 (noting that "the reach of therapeutic jurisprudence is by no means confined narrowly to mental health law").
26. DAVID B. WEXLER & BRUCE J. WINICK, ESSAYS IN THERAPEUTIC JURISPRUDENCE, xi, 1991.
27. ESSAYS IN THERAPEUTIC JURISPRUDENCE, Id. 1991.
28. ESSAYS IN THERAPEUTIC JURISPRUDENCE, 1991. Id.
29. See Robert F. Schopp, Therapeutic Jurisprudence and Conflicts Among Values in Mental Health Law, 11 BEHAV. SCI. & L. 31 (1993);
30. David B. Wexler & Robert F. Schopp, Therapeutic Jurisprudence: A New Approach to Mental Health Law, in THE HANDBOOK OF PSYCHOLOGY AND LAW (Dorothy Kaighehero & W. F. Laufer eds., 1990).
31. David B. Wexler and Bruce J. Winick, Therapeutic Jurisprudence as a New Approach to Mental Health Law Policy Analysis and Research, 45 U. MIAMI L. REV. 979, 981 (1991).
32. Supra note 10.
33. For example Professor Slobogin defines therapeutic jurisprudence as "the use of social sciences to study the extent to which a legal rule or practice promotes the psychological or physical well-being of the people it affects." Christopher Slobogin, Therapeutic Jurisprudence: Five Dilemmas to Ponder, 1 PSYCHOL. PUB. POL'Y. L. 193 (1995).
34. David B. Wexler, Reflections on the Scope of Therapeutic Jurisprudence, 1 PSYCHOL., PUB. POL'Y & L. 220 (1995).
35. PSYCHOL., PUB. POL'Y & L. Id. at 221.
36. Wexler, supra note 29. See also David B. Wexler, An Orientation to Therapeutic Jurisprudence, 20 NEW ENG. J. ON CRIM. & CIV. CONFINEMENT 259 (1994).
37. Wexler, supra note 29 at 223.
38. Equally important is acknowledgement that "psychological dysfunction" may have different meanings depending upon whether the term is used for a legal purpose or for a clinical psychological purpose. For legal purposes, psychological dysfunction takes on importance only to the extent that the mental illness undermines legal reesponsibiliry for a particular legal purpose.
39. Wexler, supra note 29.
40. Wexler, supra note 29 at 223.
41. Wexler, supra note 29 at 223.
42. Wexler, supra note 15 at 4.
43. Wexler, supra note 15 at 4.
44. See generally, WEXLER & WINICK, supra note 22.
45. See generally, TOM R. TYLER, WHY PEOPLE OBEY THE LAW: PROCEDURAL JUSTICE, LEGITIMACY AND COMPLIANCE, 1990.
46. Louis M. Brown, The Concept of Legal Health Is Encouraged by Preventive Law, PREVENTIVE L. REP. 4 (1992).
47. One advantage of law office legal procedures is that they are also largely under the control of the client. Consequently, the client has an opportunity to voice his or her concerns, interests, and goals to a greater extent than is possible in courtroom legal procedures. PREVENTIVE L. REP. Id(1992). .
48. Making such decisions intelligently requires practicing lawyers to become consumers of research on the therapeutic or anti-therapeutic effects of both formal, or courtroom legal procedures, and informal, or law office, legal procedures. There are, of course, practical difficulties in adequately disseminating empirical research results among practicing lawyers. See discussion infra section IV.
49. Wexler, supra note 15 at 16.
50. See, e.g., Robert D. Miller & Gary J. Maier, Factors Affecting the Decision to Prosecute Mental Patients for Criminal Behavior, in THERAPEUTIC JURISPRUDENCE: THE LAW AS A THERAPEUTIC AGENT (Wexler ed. 1990);
51. Janet B. Abisch, Mediational Lawyering in the Civil Commitment Context: A Therapeutic Jurisprudence Solution to the Counsel Role Dilemma, 1 PSYCHOL., PUB. POL'Y, & L. 120 (1995).
52. The Honorable Edward D. Re, The Lawyer as Counselor and the Prevention of Litigation, 31 CATH. U. L. REV. 685, 692 (1982),
53. citing WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 1798 (unabridged 1961).
54. See generally, LOUIS M. BROWN & EDWARD A. DAUER, PERSPECTIVES ON THE LAWYER AS PLANNER (1977).
55. See, e.g., Edward A. Dauer, Future of the Legal Profession Lies in Utilizing Preventive Law, 9 PREVENTIVE L. REP. 20 (1990) (comparing preventive law to the practice of dentistry);
56. Edward P. Richards III, Should Preventive Law, Like Some Medicine, be Mandated by Government?, 11 PREVENTIVE L. REP. 28, 30 (1992) (stating that "It is common for preventive lawyers to analogize their work to preventive medicine").
57. BROWN & DAUER, supra note 47.
58. BROWN & DAUER, supra note 47, at xix.
59. Brown, supra note 12.
60. Brown, supra note 12.
61. Forrest S. Mosten, Unbundling of Legal Services and the Family Lawyer, 28 FAMILY L. Q. 421, 440 (1994).
62. Dauer, supra note 48 at 25.
63. See, e.g., BROWN & DAUER, supra note 47.
64. See supra note 13. See also Scott E. Isaacson, Preventive Law: A Personal Essay, 9 UTAH B. J. 14 (1996).
65. BROWN & DAUER, supra note 47.
66. BROWN & DAUER, supra note 47.
67. LOUIS M. BROWN, MANUAL OF PREVENTIVE LAW, 3 (1950).
68. Dauer, supra note 48. There may be societal costs as well, such as overburdening the court system.
69. Wayne Moore, Improving the Delivery of Legal Services for the Elderly: A Comprehensive Approach, 41 EMORY L. J. 805 (1992).
70. "Only about 50 to 60% of older people eligible for SSI receive it." EMORY L. J. Id. at 815,
71. citing AARP, CENTER ON BUDGET & POLICY PRIORITIES, SUPPLEMENTAL SECURITY INCOME (SSI): A REVIEW OF PARTICIPATION RATES & OUTREACH ACTIVITIES 4 (1991).
72. Of course, even a small fee may impose an insurmountable barrier to the indigent elderly. Consequently, legal service programs and legal hotlines are often critical elements of preventive law at the societal level.
73. Brown, supra note 14.
74. LOUIS M. BROWN & EDWARD A. DAUER, PLANNING BY LAWYERS: MATERIALS ON A NONADVERSARIAL LEGAL PROCESS x, x 1977.
75. Quoting H. L. A. HART, THE CONCEPT OF LAW 28 (1961).
76. Brown, supra note 41 at 5 (discussing the relationship between law and fact in a jurisprudence of preventive law).
77. SCOTT J. BURNHAM, THE CONTRACT DRAFTING GUIDEBOOK (1992). However, in those instances in which a statute provides a form, such as some living will statutes, fidelity to that form may ensure enforceability.
78. THE CONTRACT DRAFTING GUIDEBOOK Id. (1992).
79. See also CARL FELSENFELD & ALAN SIEGEL, WRITING CONTRACTS IN PLAIN ENGLISH (1981).
80. BURNHAM, supra note 67.
81. FROLJK & BROWN, supra note 7.
82. See Wexler, supra note 15 (with regard to procedures outside of the courtroom, Wexler suggests that "there is surely room here for explicit considerations of [therapeutic] priorities, as well as for the lawyers to view themselves largely in the role of counselor." With regard to avoiding antitherapeutic courtroom procedures, Wexler suggests that "the attorney may be able in some ways to consider therapeutically-sound strategies, such as moving to exclude the public when embarrassing material is about to be presented.") Id. at 18 and 19.
83. Wexler, supra note 15 at 18 (addressing the question "What is the ethical propriety of judges and lawyers behaving in a therapeutic fashion, particularly if lawyer behavior departs from the traditional advocacy model?").
84. Wexler provides the example of commitment hearings at which "the adversary nature of an attorneys' role is - or at least should be - at its high point." Supra note 15 at 36.
85. See generally Symposium, Ethical Issues in Representing Older Clients, 62 FORDHAM L. REV. 961 (1994).
86. It is particularly important for a lawyer to recognize and be willing to openly identify their limitations with regard to their clinical knowledge. Although most lawyers are capable of becoming sophisticated consumers of psychological and therapeutic literatures, most lawyers are not clinical psychologists or psychiatrists and should readily recognize that limitation.
87. Bruce A. Green & Nancy Colman, Special Issues: Ethical Issues in Representing Older Clients: Forward, 62 FORDHAM L. REV. 961 (1994).
88. Peter Margulies, Access, Connection and Voice: A Contextual Approach to Representing Senior Citizens of Questionable Capacity, 62 FORDHAM L. REV. 1073 (1994); See also Margulies, supra note 8.
89. Model Rule of Professional Conduct 2.1 provides that in the lawyer's role as an advisor the "lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client's situation."
90. FROLICK & BROWN, supra note 7 at 2-3.
91. See Frolik & Barnes, supra note 3 for a discussion of "who really is elderly?".
92. "Increasingly, clients are concerned about the possibility of their own incapacity and wish to take steps to assure, should they become disabled in the future, that their assets will be protected and that health care decisions will be made on their behalf without court intervention or other delays." McCue, supra note 1 at 345.
93. For an interesting discussion of older persons' reflections on death see RICHARD A. POSNER, AGING AND OLD AGE 108-115 (1995).
94. Susan L. Hughes, et al., Impact of Joint Impairment on Longitudinal Disability in Elderly Persons, 49 J. OF GERONTOLOGY S291 (1994).
95. Donald K. Freeborn, et al., Consistently High Users of Medical Care Among the Elderly, 28 MED. CARE 527 (1990).
96. Barbara L. Downe-Wamboldt & Patricia M. Melanson, Emotions, Coping, and Psychological Well-Being in Elderly People with Arthritis, 17 W. J. OF NURSING RES. 250 (1995).
97. Baqar A. Husaini & Stephen T. Moore, Arthritis Disability, Depression, and Life Satisfaction Among Black Elderly People, 15 HEALTH & Soc. WORK 253 (1990).
98. Ge Li, et al., Age at Onset and Familial Risk in Alzheimer's Disease, 152 AM. J. OF PSYCHIATRY 424 (1995).
99. This is especially true of early onset Alzheimer's disease. AM. J. OF PSYCHIATRY Id(1995). .
100. AM. J. OF PSYCHIATRY Id. (1995).
101. Brown, supra note 41.
102. Recent geriatric research suggests that social interaction is a key factor in maintaing mental health among older individuals. Winifred Windriver, Social Isolation: Unit-Based Activities for Impaired Elders, 19 J. OF GERONTOLOGICAL NURSING 15 (1993).
103. Furthermore, research has shown that religious beliefs and behaviors are also positively related to mental health. Harold G. Koenig, Religion and Prevention of Illness in Later Life, 10 PREVENTION IN HUM. SERVICES 69 (1991).
104. A revocable trust allows the surviving spouse to again take control of his or her assets by revoking the trust, provided that he or she is competent to do so. FROLICK & BROWN, supra note 7.
105. It is important to note that such suggestions are not improper solicitations of business. Brown, supra note 14 at 19 (stating that "the law of professional responsibility has always permitted lawyers to initiate legal discussions with existing clients. That process is not a process of solicitation in the traditional definition of that word. Solicitation that was not permitted was solicitation to obtain a client.").
106. Medicare will often not pay for extended nursing home expenses. Furthermore, Medicaid will only pay for such expenses after the client has become impoverished. FROLIK & BROWN, supra note 7 at 11-28.
107. Recall that special extended care for mental illness may be of particular concern given the presence of Alzheimer's disease in Eleanor's family. An advance directive for mental health care might also be considered. See generally Bruce J. Winick, Advance Directive Instruments for those with Mental Illness, 51 U. MIAMI L. REV. 57 (1996) (discussing the enforceability and therapeutic value of advance directives for those with mental illness).
108. Dauer, supra note 48 at 25 (discussing the concept of the "periodic legal checkup").
109. Again, such suggestions do not create a problem of improper solicitation. See supra note 90.
110. Moore, supra note 61. Citing THE SPANGEBERG GROUP, WISCONSIN ELDER LEGAL NEEDS STUDY, 1 THE FINAL REPORT OF THE ABA COMMISSION ON LEGAL PROBLEMS OF THE ELDERLY 42 (Apr. 1991), which found that one area of quasi-legal nature are of great concern to older people was finding assistance with medical paperwork related to Medicare and Medigap reimbursement.
111. Of course, many good lawyers, especially those who often work with elderly or disabled populations, have long given consideration to therapeutic concerns. However, justifications for therapeutic concerns often appear paternalistic and deal ineffectively with the potential conflict between well-being and individual autonomy. The coherent intellectual justification for prioritizing therapeutic goals in legal planning that is provided by therapeutic jurisprudence has previously been lacking.
112. The integration with therapeutic jurisprudence also creates an identifiable literature to which the practicing lawyer can turn to obtain relevant psychological or psychiatric information.
113. Supra note 15.
114. Wexler, supra note 15 at 18 (suggesting that empirical information is "on the feasibility and effectiveness of training programs designed to provide attorneys with clinical insight").
115. See generally, Wexler supra note 11.
116. For an example of client questionnaires see FROLIK & BROWN, supra note 7. Costs might also be born more effectively by legal insurance plans or other prepaid legal services programs.
117. Indeed, numerous and less obvious areas of law may benefit from an application of the proposed framework. As noted by Wexler, a therapeutic perspective has already been explored in "criminal law and procedure, sentencing and corrections law, family and juvenile law, sexual orientation law, health law, disability law, workers' compensation law, personal injury and tort law, labor arbitration law, and even to contract law." Supra note 21 at 454.