ETHICAL ISSUES AND PROFESSIONAL RESPONSIBILITIES: WHEN LAWYERS WORK WITH PSYCHIATRISTS AND PSYCHOLOGISTS

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1 ETHICAL ISSUES AND PROFESSIONAL RESPONSIBILITIES: WHEN LAWYERS WORK WITH PSYCHIATRISTS AND PSYCHOLOGISTS Presented by: Anne L. Clark, Zachary D. Fasman, Alfred G. Feliu, Stuart Kleinman, M.D. Dated: March 16, 2015

2 Should a litigant's emotional vulnerability influence a lawyer s actions? Put differently, are there ethical considerations when dealing with a highly emotional, or emotionally vulnerable, litigant? Assume the individual is not significantly cognitively impaired.

3 Should a litigant's emotional vulnerability influence a mediator s or arbitrator s actions? Is there any difference in the answer if the litigant has a mental disability?

4 Are there actions a mediator could take to capitalize on a party's emotional vulnerability to facilitate resolution and is there a point when such action crosses an ethical line?

5 Does the nature of the claim impact your answers? Consider two individuals who are emotionally vulnerable and highly emotional. One is bringing a sex harassment claim based in unwelcome touchings and verbal abuse, the other is pursuing a claim for unpaid commissions.

6 Cognitive impairments arise from a variety of causes. If you become aware that a litigant suffers from a cognitive impairment that compromises his or her ability to understand the issues or to exercise sound judgment, what are the ethical implications?

7 A physician, who will shortly be deposed, concludes that her patient s mental condition is being harmed by her pursuit of a legal claim. What should the physician communicate to the patient about her pursuit of the claim? Does the physician have an ethical duty to convey her conclusion to her patient s attorney? Does the physician have an ethical duty to avoid testifying about this issue at deposition?

8 You become aware that your client has a mental impairment that makes it impossible for the two of you to continue to work together. What are your ethical obligations?

9 A prospective client has a mental disability and in fact divulges it during the course of discussion about the claims he believes he has against his employer. Do you have any particular responsibilities now that you know about the mental disability?

10 Plaintiff brings an employment-related claim against her employer seeking damages, in part, for emotional distress. To what extent has she waived her right to privacy and the patient-psychotherapist privilege as to the content of her psychotherapy sessions with her treating therapist? Assume her treatment commenced before she began working for the defendant.

11 What are the psychotherapist s ethical obligations with respect to protecting the plaintiff/patient s confidences?

12 A litigant claims that her supervisor sexually harassed her and subjected her to a hostile work environment. Defense counsel learns from co-workers that she has been having an affair with another supervisor. When defense counsel deposes her treating therapist, she asks whether the plaintiff has divulged her affair with the supervisor in therapy. The therapist refuses to answer. Is this purely a matter of privacy law or are there ethical implications?

13 A psychotherapist learns from her client that she intends to harm a co-worker. What are the psychotherapist s ethical obligations and constraints with respect to informing the employer and the co-worker of the threat? Does it make a difference whether the psychotherapist is in California or New York?

14 In-house counsel becomes aware that an employee is voicing threats to kill himself. Co-workers report to Human Resources that the employee has long boasted about his gun collection. The employee assures HR when interviewed that he has no plan to harm himself. What is in-house counsel s best course of action?

15 An employee s spouse reports to Human Resources that the employee has beaten her and voiced threats to kill his supervisor. The employee has no performance problems and complies with company rules. Does the company have an obligation to take any action?

16 Contact Us Anne L. Clark Vladeck, Waldman, Elias & Engelhard, P.C. Phone: (212) ; Zachary D. Fasman Proskauer Rose LLP Phone: (212) ; Alfred G. Feliu Vandenberg & Feliu, LLP Phone: (212) ; Stuart B. Kleinman, M.D. Associate Clinical Professor Of Psychiatry Columbia University College of Physicians and Surgeons Phone: (917) ;

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