Representation of Clients with Disabilities: Issues of Ethics and Control


Few questions in disability law are more vexing than the proper allocation of responsibilities between lawyer and client. Through litigation, legislation, and regulation, advocates for persons with disabilities can influence who is served, by whom, and in what manner. By selecting certain clients and framing the issues that they pursue, lawyers can set the agenda for disability law and select certain policy issues for priority attention. For example, while social critics and treatment professionals initiated policies such as deinstitutionalization, normalization, and the provision of education to all handicapped children, legal advocates enforced those policies in the judicial, legislative, and executive branches. In sum, lawyers often screen the claims that the disability movement presses before Congress, state legislatures, administrative agencies, the judiciary, and the public at large.

The legal profession’s influence is felt not only at the macro level of class action suits and legislative proposals, but also at the micro level of individual case counseling. Disability law practitioners often exert considerable control not only over reform agendas, but over the very lives of their clients. Due to a variety of personality and professional factors, lawyers may dominate their clients and usurp decisions that are generally reserved to non-disabled clients. For many lawyers, the temptation to be paternalistic is acute when representing clients with developmental or other mental disabilities. Those clients may not only have certain expectations of how their lawyers should behave, but their lawyers may come to perceive themselves as behaving in ways that meet the clients’ expectations. If the clients have cognitive limitations, the lawyers, in contrast, are expected to be wise and articulate. If the clients have narrow experience, their representatives are supposed to be worldly and sophisticated.

If the clients are emotional and subjective, lawyers hold themselves out as analytical and objective. These images and stereotypes enhance the power of counsel to set the goals of representation, and to even confer “client” status on some persons with mental disabilities but not on others.

Even public interest lawyers may be tempted to impose their own goals and ideologies on others. The process of client-centered counseling is time-consuming. Adequate consultation with disabled clients and their organizations may require extraordinary patience to understand and satisfy their complex concerns. In a few cases, some lawyers entirely short-circuit this consultation process. In one landmark “right to treatment” case for the mentally ill and mentally retarded, the lead plaintiff’s lawyer would later unabashedly proclaim: “I played God. I never met [the named class action plaintiff] or his aunt. And I never needed to do so. I knew what needed to be done.” The lawyer achieved substantial gains for members of the plaintiff class, notwithstanding any psychological or political harm he may have caused by neglecting their views. But the scenario of a class action commander with decision-making authority becomes even more disturbing when one considers the possibility of a lawyer whose goals in conducting the litigation are neither benevolent nor consistent with the clients’ interests. And other forms of legal representation are subject to less outside scrutiny than the class action, which at least requires that a judge approve any settlements or dismissals as fair, adequate, and reasonable.

This Article analyzes ways to further client-centered legal representation of clients with mental disabilities. Theoretically, clients with physical disabilities already enjoy the benefits of such representation, and like any other client can expect to participate actively in an attorney-client relationship guided by norms of informed consent. Application of those norms of representation becomes problematic if the client becomes incompetent during the course of representation or was marginally competent from the start. Section I examines the traditional allocation of responsibilities between attorney and client in cases absent any competence issues. Section II identifies the ethical guidelines intended to aid the attorney in representing the client with a mental disability. Section III considers the problems of, and possible solutions to, individual representation of clients with mental disabilities. Section IV explores the problems and options presented when the attorney seeks to represent a class of disabled individuals, whether in a judicial class action or in legislative advocacy. Finally, since such attorney-client relationships are rarely bi-polar, Section V suggests some roles for disability organizations in improving disability law practice.

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