One area that can affect client-attorney relationships occurs when the client has suffered a head injury. Unfortunately, traumatic brain injuries (TBIs) can affect communication, memory, personality, cognitive function and decision-making. This can affect a client’s ability to pursue a claim or their ability to understand and communicate effectively about legal matters.
When this happens, what are the obligations that a head injury attorney has towards their client?
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Must the Person Who Accompanies a Client With a Head Injury to an Appointment Sign Anything for Confidentiality?
In Pennsylvania, lawyers are expected to abide by ethics rules and laws. Attorneys are expected not to make false promises, to explain legal processes to clients and to act in the client’s best interests. If a client or client’s family feels an attorney is acting against the client’s interests, they can terminate the client-attorney relationship and in some cases even pursue a claim against the attorney.
In cases where a client has sustained a head injury and can no longer make decisions for themselves, the client can appoint an individual or family member to be given their legal power of attorney. That named person can then act on behalf of the injured person and can meet with legal counsel.
In cases where someone has sustained a head injury and clearly cannot make decisions for themselves, but is not willing to admit to it, a family can go to court and ask that the person be declared incapable of making their own decisions. In these cases, a court will usually appoint a legal guardian. This is a more difficult process, and often a more traumatic one, for the family.
A Lawyer’s Obligations
When a lawyer is working with a client who may not be able to understand what their options are in this situation, the attorney must follow the ethical rules concerning how a lawyer conducts themselves. The Rules of Professional Conduct for lawyers in Pennsylvania includes the ethical rules about a lawyer’s obligations when they are dealing with a patient with diminished mental capacity.
1. Maintaining a Normal Relationship
When a client’s ability to decide about their case had been diminished due to a TBI, it is incumbent upon the lawyer to continue as normal a relationship with that individual as possible.
It is important to note that if the client has a diminished mental capacity, that does not affect the lawyer’s obligation to treat the client with the respect and attention they deserve.
The lawyer needs to base this “normal” relationship on the assumption that the client can make critical decisions about important issues relevant to their case. If the client’s head injury, however, has significantly diminished their decision-making capacity, this relationship may not be possible. It may affect the standing of the case because a person who is severely mentally incapacitated may have no ability to make decisions which are legally binding on their behalf.
2. Determining Whether a Client With a Head Injury Can Make Important Decisions
When determining how much a client’s mental capacity has been diminished, the lawyer needs to look at several factors:
- Can a client reasonably articulate their wants and their values about their case?
- Can the client understand the consequences of their decisions?
- Can they understand the fairness of the decision?
- Can they understand if the decision is consistent with what the attorney may know about their long-term commitments and their current values?
To make the right decision for the client and their family, a good lawyer will work with a doctor who can make a diagnosis about the mental capacity of the client.
3. Protecting the Client
A lawyer must also work to protect the client.
If a lawyer concludes the client’s diminished capacity impairs their ability to understand their options, that it is very difficult for them to act in their own best interests and as a result may suffer financial or some other form of harm, the attorney can consult with family members or other entities. They can take the legal actions necessary to protect a mentally incapacitated individual, including seeking power of attorney or being appointed as guardian.
If a client has diminished mental capacity, but they are aware how it affects them, they may want to have a family member, a friend or some other person take part in legal discussions they hold with her lawyer. However, unless the client has signed over power of attorney to another individual or a guardian has been appointed for a client who cannot look after themselves, it is the lawyer’s duty to ask the client, and not their family member or representative, about how they want to deal with decisions which affect them.
If the client’s head injury has rendered them incapable of making these decisions, and the lawyer has decided protective measures are needed, the lawyer may consult with family members or others who possess power of attorney or who have been appointed guardians by a court. The lawyer is ethically bound, however, to be guided by the client’s wishes and values as far as they are known, to do their very best to represent the client’s best interests and to interfere with the client’s ability to make decisions as little as possible.
There are some legal concerns about attorney-client confidentiality when a third-party is present, unless certain conditions are met, which we will examine below.
Must the Person Who Accompanies a Client With a Head Injury to an Appointment Sign Anything for Confidentiality?
Attorney-client confidentiality only applies to a client and attorney. In most cases, any third party present is not covered by this privilege. In many legal situations, if you bring a third party into a discussion with a lawyer, you lose the right to claim the meeting was confidential.
However, if the third party is present to represent the client — for instance, if the client has diminished mental capacity due to a head injury and needs a friend or family member to help them, if the third party is there in the role of a guardian or if they have power of attorney — the attorney-client privilege remains in place.
If, however, a family member is present and the client can make their own decisions despite a degree of mental incapacity, this meeting will not be covered by attorney-client privilege, and a defense attorney could ask that family member to testify about what was said in the meeting.
So an individual or a family member does not need to sign a confidentiality agreement, but before a third party is invited to participate in any attorney-client meeting, either the client or a medical professional must determine if they have the mental capability to make important decisions.
HIPAA Compliance for Attorneys
Anytime a lawyer or their firm handle a case which involves protected health information (PHI), such as would be the case in working with someone with a head injury, they technically may become what is known as “business associates” of the clients. This means the lawyer is subject to several important obligations and compliance measures to protect that PHI. If the patient’s PHI was accidentally given to an insurance company or some other defendant in a personal injury case, it could seriously undermine the client’s chances of success.
This includes the law firm as well as any vendor or subcontractor who does work for them. This means the law firm needs to meet important standards such as:
- Securing their offices, any networks in which PHIs are located and any data which resides in that network. For instance, it is a HIPAA violation if a lawyer has important health information about a client with a brain injury on their laptop, and they leave that laptop in an unmarked car.
- Any access to health information must be encrypted and password-protected.
- Law firms need to ensure only authorized lawyers and staff can access this information and that they have policies regarding this access.
When you are talking to a lawyer about representing yourself or a mentally incapacitated individual, make sure you ask about HIPAA compliance.
Will a Lawyer Deny Me Because of My Head Injury?
A lawyer who typically deals with personal injury cases may lack familiarity with and understanding of the various symptoms TBIs can produce. This is why it is so important to find an attorney who deals specifically with head injury cases. An attorney who is not familiar with these kinds of cases should not agree to represent you.
For instance, if your head injury is a result of a workplace accident, it is not enough that a lawyer is familiar with the ins and out of the workers’ compensation system. They also need to be familiar with how workers’ comp handles a head injury in particular.
If you have chosen a lawyer who you believe does not properly understand the consequences of your head injury and as a result fails to represent your best interests, you have the right to choose a new lawyer.
What Is the Difference Between Holding the Power of Attorney and Being a Guardian?
There are essential differences between the power of attorney and guardianship:
1. Power of Attorney
A client who is mentally incapacitated due to a head injury can grant someone the power of attorney, which assigns that person to act on the client’s behalf. The client must, however, understand what they are signing when they sign a power of attorney form.
- If the mental capacity of the person who is suffered a TBI “comes and goes,” you will need medical documentation to show the person was mentally competent when they signed the power of attorney.
- If the client may become mentally incapable in the future, it may be necessary to sign what is known as a durable power of attorney. With a general power of attorney, the person who holds the power of attorney may lose that power if a client becomes mentally incompetent at some point. A durable power of attorney clearly says that person will retain the client’s power of attorney if the client becomes mentally incapable.
A guardian is a person who is legally appointed by a court to make decisions for an individual who is incapable of making those decisions for themselves. You will need a letter from a doctor explaining why they feel the individual is no longer capable of looking after themselves.
There are three types of guardianship:
- Guardian of the person: This usually is someone who is appointed to take care of an individual’s medical needs.
- Guardian of the estate: This is normally someone who is appointed take care of an individual’s business, financial and legal needs.
- Guardian of the general: This is someone who is appointed to take care of both interests.
If you are appointed as a guardian, you will still need a court’s permission to make many important financial or business decisions on behalf of the mentally incapacitated person.
Protecting Head Injury Patients
There are ways to make sure an attorney meets their obligations when it comes to a TBI plaintiff:
- Choose an attorney with a good reputation.
- Look for an attorney with experience in similar cases. Attorneys with experience in similar types of TBI cases and a proven track record of winning cases are more likely to know the ethical rules and other regulations regarding these types of claims.
- Have someone from the family attend appointments with the attorney and client. If the client agrees, it can be a simple way to assuage any fears about the client-attorney relationship.
How Do I Determine the Best Lawyer to Handle My Head Injury Case?
As we noted above, many good attorneys have experience with personal injury cases but may lack the specific knowledge needed in a head injury case. Here are some good questions to help you determine if you are choosing the right attorney:
- How many cases like mine have you handled in the past three years?
- How much of your practice is devoted to dealing with clients with head injuries?
- Will you be handling my case personally or you be passing it along to another member of the law firm?
- How successful have you been in representing clients like me?
- Do you read articles and textbooks about TBIs?
- Have you published any articles on TBIs?
- Are you up-to-date on any recent developments and how to legally represent people with TBIs?
- Have you attended any seminars or information sessions which have been held either by the Bar Association or Brain Injury Association in the past year?
- Have you ever won any awards or professional honors for representing clients with TBIs?
If you feel the attorney has satisfactorily answered your questions and has shown you evidence of their experience in dealing with cases involving head injuries, they are probably a good attorney to choose.
Contact KBG Injury Law for Assistance With Your Head Injury Case
If you are looking for a Pennsylvania attorney with experience in head injury claims, contact KBG Injury Law for a free consultation. Our team has a proven track record of securing court wins and settlements on behalf of patients with various types of traumatic brain injuries.
You can call us at 1-800-509-1011 or contact us online for an honest appraisal of your situation. A member of our team will get back to you as soon as possible.