Mental Health Awareness – What They Don’t Teach You in Law School (…Really??)

Last week was “Mental Illness Awareness Week,” and in recognition of that fact, Maryland  Attorney Michael E. McCabe, Jr. posted an important Blog item on representing clients with diminished capacity.  I’m impressed that discussion of the need for lawyers to appreciate the potential for mental health to impact any aspect of the lawyer-client relationship is written for the IPethics & INsights blog, his law firm’s ” resource for intellectual property rights attorneys.” 

In other words, the topics of mental health and legal capacity are not exclusively the province of estate planners, elder law attorneys, disability law practitioners or poverty law experts.

He notes at the outset:

According to the leading mental health organization in the country, 1 in 5 adults in the United States suffers from some form of mental health condition or disorder. Thus, it is likely that at some point in your legal career, you will be representing an individual client or a representative of a corporate client, who suffers from some degree of mental illness.

Attorney McCabe points to ABA Model Rule of Professional Conduct 1.14 as guidance, while also suggesting:

A two-prong test may be useful when determining the existence and degree of a client’s mental illness:

 

(1) “take reasonable steps to optimize capacity,” and

 

(2) “perform a preliminary assessment of capacity.”

Attorney McCabe also links (although not directly attributing his recommendation) to Charlie Sabatino’s important 2000 article, “Representing a Client with Diminished Capacity:  How Do You Know It And What Do You Do About It?”

I suppose I do have a small quarrel with the author, however.  The title of his post is “What They Didn’t Teach You in Law School: Representing  Client with Diminished Capacity.”  Mr. McCabe graduated law school in 1992, and perhaps diminished capacity was not well addressed by law schools at that time.  Although it could be my bias as an academic interested in aging policy, I believe law schools have changed with the times.  Certainly I find myself teaching the importance of “capacity” issues and the attorney-client relationship, and I start this in my 1L course on Contracts, while digging deeper into the field of mental health impacts in Wills/Trusts/Estates and, of course, Elder Law.  Other faculty members address mental health in a variety of other contexts, including courses on education law.

If Mr. McCabe is right that law schools are not currently addressing the complex concerns attached to mental health, then certainly the moral from his column is “we need to do better.” 

My thanks to Attorney McCabe, and to Dickinson Law Professor Laurel Terry for sharing his article.