NJSBA Family Law Section

My typical advice is to just apply to be relieved of further representational responsibilities.

However, I am curious... in the event a client is not acting at all rational based upon ones experience in this area of practice, as evidenced by burgeoning email content, with issues of possible psychiatric problems in a prior expert report, after asking the client if she would like an application to be made to appoint a GAL, and she has doubts or does not want this application made at all, is there some ethics standard or other authority that would protect an attorney from client retaliation after making such an application? What would the mechanics entail?

------------------------------
Curtis Romanowski Esq.
Senior Attorney - Proprietor
(732)603-8585
------------------------------

Been there. Very tricky to assert client's attorney client privilege while simultaneously asking court to appoint a GAL for client.

Am in a meeting now by happy to discuss by phone later if you are interested.

Starting points, in my opinion, are the RPC dealing with repping a client with a disability and the Part IV NJ Court Rule dealing with appointment of GAL.

Anne

Anne Cralle, Esq.

Sent from my iPhone


Original Message------

My typical advice is to just apply to be relieved of further representational responsibilities.

However, I am curious... in the event a client is not acting at all rational based upon ones experience in this area of practice, as evidenced by burgeoning email content, with issues of possible psychiatric problems in a prior expert report, after asking the client if she would like an application to be made to appoint a GAL, and she has doubts or does not want this application made at all, is there some ethics standard or other authority that would protect an attorney from client retaliation after making such an application? What would the mechanics entail?

------------------------------
Curtis Romanowski Esq.
Senior Attorney - Proprietor
(732)603-8585
------------------------------

I am thinking this would be a good starting point:

RPC 1.14. Client Under a Disability (a) When a client's capacity to make adequately considered decisions in connection with the representation is diminished, whether because of minority, mental impairment or for some other reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client. (b) When the lawyer reasonably believes that the client has diminished capacity, is at risk of substantial physical, financial or other harm unless action is taken and cannot adequately act in the client's own interest, the lawyer may take reasonably necessary protective action, including consulting with individuals or entities that have the ability to take action to protect the client and, in appropriate cases, seeking the appointment of a guardian ad litem, conservator, or guardian. (c) Information relating to the representation of a client with diminished capacity is protected by RPC 1.6. When taking protective action pursuant to paragraph (b), the lawyer is impliedly authorized under RPC 1.6(a) to reveal information about the client, but only to the extent reasonably necessary to protect the client's interests.

But who am I to determine she is under a disability, although unemployed for quite some time and under SSA disability? What is the level of proof needed? I've never liked the idea of committing suicide. If anyone would like to give me a call, I'd be quite happy.

------------------------------
Curtis Romanowski Esq.
Senior Attorney - Proprietor
(732)603-8585
------------------------------

Original Message:
Sent: 03-07-2017 12:49
From: Anne Cralle
Subject: GAL for adult client

Been there. Very tricky to assert client's attorney client privilege while simultaneously asking court to appoint a GAL for client.

Am in a meeting now by happy to discuss by phone later if you are interested.

Starting points, in my opinion, are the RPC dealing with repping a client with a disability and the Part IV NJ Court Rule dealing with appointment of GAL.

Anne

Anne Cralle, Esq.

Sent from my iPhone

Original Message------

I am thinking this would be a good starting point:

RPC 1.14. Client Under a Disability (a) When a client's capacity to make adequately considered decisions in connection with the representation is diminished, whether because of minority, mental impairment or for some other reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client. (b) When the lawyer reasonably believes that the client has diminished capacity, is at risk of substantial physical, financial or other harm unless action is taken and cannot adequately act in the client's own interest, the lawyer may take reasonably necessary protective action, including consulting with individuals or entities that have the ability to take action to protect the client and, in appropriate cases, seeking the appointment of a guardian ad litem, conservator, or guardian. (c) Information relating to the representation of a client with diminished capacity is protected by RPC 1.6. When taking protective action pursuant to paragraph (b), the lawyer is impliedly authorized under RPC 1.6(a) to reveal information about the client, but only to the extent reasonably necessary to protect the client's interests.

But who am I to determine she is under a disability, although unemployed for quite some time and under SSA disability? What is the level of proof needed? I've never liked the idea of committing suicide. If anyone would like to give me a call, I'd be quite happy.

------------------------------
Curtis Romanowski Esq.
Senior Attorney - Proprietor
(732)603-8585
------------------------------

Yes, but subsection (a) talks about as far as reasonably possible, maintaining a normal client-lawyer relationship with the client, not about getting a GAL appointed.

(b) refers to "at risk of substantial physical, financial or other harm unless action is taken and cannot adequately act in the client's own interest, the lawyer may take reasonably necessary protective action.

My problem is that she is just about impecunious without the ex's support, but is going around in circles asking that I propose outrageously ridiculous positions. I am concerned about bringing that into the harm category and really afraid to try to hang my hat on it.

------------------------------
Curtis Romanowski Esq.
Senior Attorney - Proprietor
(732)603-8585
------------------------------

Original Message:
Sent: 03-07-2017 15:27
From: Anne Cralle
Subject: GAL for adult client

The caption of the RPC "Client Under a Disability" is the only place where "disability" used.  

Part (a) requires the attorney to make a call whether client has "diminished capacity" to make "adequately considered" decisions in the case.

Part (b) again uses "diminished capacity".  Important to note is that standard for attorney is reasonable belief.

Sent from my iPad

Original Message------

Yes, but subsection (a) talks about as far as reasonably possible, maintaining a normal client-lawyer relationship with the client, not about getting a GAL appointed.

(b) refers to "at risk of substantial physical, financial or other harm unless action is taken and cannot adequately act in the client's own interest, the lawyer may take reasonably necessary protective action.

My problem is that she is just about impecunious without the ex's support, but is going around in circles asking that I propose outrageously ridiculous positions. I am concerned about bringing that into the harm category and really afraid to try to hang my hat on it.

------------------------------
Curtis Romanowski Esq.
Senior Attorney - Proprietor
(732)603-8585
------------------------------

ESPs and mediation matter of ancient history and not even on my watch. Fun.

------------------------------
Curtis Romanowski Esq.
Senior Attorney - Proprietor
(732)603-8585
------------------------------

Original Message:
Sent: 03-07-2017 16:04
From: Anne Cralle
Subject: GAL for adult client

Under (b), do you have the necessary reasonable belief?

Sounds like you are leaning toward yes on this point, correct?

So the sticking point is whether she is at risk of substantial financial harm?

What will likely happen if you follow her direction to take the outrageously ridiculous position?  Opposing counsel will refuse. Might counteroffer?  Might say see you at the MESP?  Or are you past that?  

Just because you apply for a GAL doesn't mean the court will appoint one. I haven't dealt with a client objecting to a GAL thank goodness. But am wondering if she objects, could you do an affidavit for her as part of your motion? Stating her objection and her reasons (as generically as humanly possible) for same so judge can consider. Of course, then you might have to battle with her over contents of her affidavit as she might want to include stuff which prejudices her . . . maybe better to just include her objection in your affidavit and not go into her reasons. 

Family law. Never a dull moment. 

Anne

Anne Cralle, Esq.

Sent from my iPhone

Original Message------

ESPs and mediation matter of ancient history and not even on my watch. Fun.

------------------------------
Curtis Romanowski Esq.
Senior Attorney - Proprietor
(732)603-8585
------------------------------