MCLE Self Study

By Steven N. Sparta

Sparta

Clients with past and/or current mental health problems are likely to have greater emotional vulnerability and be more dependent upon the advice and guidance of legal counsel. Attorneys owe all litigants the utmost duty of good faith and fidelity. In cases involving mental health issues, lawyers may confront ethical and practice challenges unique to mental expert testimony.

Consider the following: You represent a client involved in an auto accident determined to be the fault of the other driver. Your client reports numerous medical and psychological problems, including sleep problems associated with unsettling dreams, fear of driving, increased depression and anxiety, conflicts with family and complaints from the client's work supervisor. Your client had been treated in psychotherapy before the accident and continues to consult with this professional. Your client likes their psychotherapist, wants a quick resolution of the legal matter and suggests that you use this professional as an expert witness. Your client explains that their therapist is very supportive and would accept payment on a contingency basis.

Although lawyers quite naturally wish to prevail in their legal case, they need to provide competent service, and use reasonable care to prevent reasonably foreseeable harm to their clients. California Rule of Professional Conduct (CRPC) 3-110 states that competent legal service includes 1) diligence, 2) learning and skill, and 3) mental, emotional and physical ability reasonably necessary for the performance of such service. A lawyer representing a client with mental health issues may additionally need to consider a broader range of factors than is usual in other types of legal matters. While not binding on California lawyers, ABA Model Rule 2.1 sets forth the accepted principle that a lawyer may refer not only to the law but to other considerations such as moral, economic, social and political factors that may be relevant to a client's situation.

This article explores some of the ethical issues related to mental health testimony.

1. Consider the situation of a litigant who is experiencing acute mental health problems and whether those problems might be exacerbated by his or her participation in the action in which you are counsel. Should the lawyer urge the client to delay or abandon the case because the ensuing stress might significantly harm the client? In order to make a decision in the best interests of the client, the lawyer may wish to obtain the opinion from the mental health professional who is already treating the client, or obtain a consultation from another professional who, with the consent of the client, is retained as a confidential consultant to the attorney for this limited purpose.

2. Consider the variety of problems attendant to retaining a pre-existing mental health professional in the litigation as an expert. One problem is the potential waiver of the client's privilege concerning their psychotherapy in a legal matter when doing so potentially damages the legal case or is detrimental to the client's functioning. Using a pre-existing mental health professional as an expert in the litigation risks waiving the patient's privilege regarding information about their psychotherapy. According to Cal. Evidence Code Section 1016(a): "There is no privilege under this article as to a communication relevant to an issue concerning the mental or emotional condition of the patient if such issue has been tendered by the patient."

By engaging a separate mental health expert qualified in forensic matters, the attorney avoids the risk of revealing potentially damaging information about the client from the prior psychotherapy.

Also, a psychotherapist who opines about an ongoing patient's condition in a legal case risks losing their patient if the opinion causes the patient to experience a violation of trust (despite having previously giving permission for the testimony); potentially hurts the legal case; causes personal distress; or results in embarrassment. While it is true that the waiver is limited to the issues set forth in the litigation (see In re Lifschutz (1970) 2 Cal 3d 415, 431) counsel should consider whether it would be safer to use a separate mental health expert.

3. Consider also the issue of privilege involving a prior psychotherapist: the lawyer should understand that there are significant differences in the purpose, methods and goals of mental health professionals when acting in the differing roles of psychotherapist, evaluator or consultant to a lawyer. Professionals who conflate the roles of psychotherapist and evaluator may unwittingly and seriously compromise the validity of their opinions, with risk of harming the client and/or creating an untenable position for the attorney.

Forensic mental health practice is a specialty area, requiring knowledge and skills beyond general ethical principles. Such experts must be aware of at least the following: impartiality and fairness; appreciation of individual and group differences; the impact of personal beliefs and experiences; the need to focus on legally relevant factors; comprehensive and accurate presentation of opinions, reports and testimony; the use of appropriate methods; the reliance on multiple sources of information; and the selection and use of assessment procedures that are relevant to the specific facts of the case.

Mental health professionals proffering opinions in reasonable anticipation of a legal matter are responsible for understanding the limits of their opinion and qualifying the opinion when necessary. When serving in both roles of a psychotherapist and the client's expert in a legal matter, a psychotherapist who has a pre-existing relationship with the litigant cannot be regarded as a neutral and objective expert as it pertains to later opinions on ultimate psycho-legal matters. A psychotherapist-patient relationship requires that the psychotherapist serve in a quasi-advocacy function on behalf of the patient, while a forensic evaluator should be an objective professional with no such conflicts.

The methods of a psychotherapist and evaluator are quite different. An evaluator typically utilizes a broad range of evaluation methods including the reliance upon varied documents or collateral sources of information. The evaluator expert could also consider psychometric tests yielding scores based upon published normative data that are accompanied by reliability and validity studies.  An attorney may consider the introduction of limited testimony from a psychotherapist on past matters related to a patient’s past mental status, diagnosis, prognosis and treatment progress, but not whether the individual now suffers psychological damage proximately caused by a legally relevant event.

4. In choosing a forensic mental health professional, the number and the quality of credentials and/or the years of experience of an expert by itself are not alone sufficient for determining the appropriateness and/or suitability to assist a particular litigant. In evaluating someone who suffered multiple injuries in a car accident, counsel should consider whether the expert has qualifications to differentiate possible psychological trauma/PTSD, and if so to what extent, or the ability to determine if pre-existing anxiety or depression can account for some or all of the observed symptoms. The forensic psychological evaluator in a tort case would be expected to have the appropriate specific qualifications and also understand the concept of proximate cause or apportionment before simply concluding that an observed psychological problem was necessarily caused by a psycho-legal event. Determining proximate cause often involves a legally sufficient analysis which often escapes the consideration of a non-forensically trained professional. Additionally, qualified forensic mental health experts are usually aware of applicable court rules, important statutes and case law relevant to the expert opinion.

In considering qualifications for expert opinion, the U.S. Supreme Court case, Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 (1993) 509 U.S. 579, 592-93 held that experts may testify only if the reasoning and methodology underlying their testimony is scientifically valid. The court identified factors which can be used to determine the validity of admitting scientific conclusions. These include falsifiability, error rate, peer review and publication and general acceptance of the theory or practice. As explained in the Daubert decision (Id. at 592): "general acceptance ....does permit, explicit identification of a relevant scientific community and an express determination of a particular degree of acceptance within that community." The decision also opines that: "Widespread acceptance can be an important factor in ruling particular evidence admissible, and a known technique which has been able to attract only minimal support within the community, may properly be viewed with skepticism."

5. Payment for expert fees needs to be explicitly understood and consistent with the California Rules of Professional Conduct. Lawyers will sometimes accept cases whereby payment for legal services is based upon any financial award if the case is won. Regarding the lawyer’s practice, the lawyer functions as an advocate for the client and thus a contingency may provide a greater incentive for the lawyer to vigorously pursue an outcome favoring the client. CRPC 5-310 (B) states:

A lawyer shall not:

" Directly or indirectly pay, offer to pay, or acquiesce in the payment of compensation to a witness contingent upon the content of the witness's testimony or the outcome of the case."

To be compliant with CPRC 5-310 (B), the lawyer must avoid having the mental health expert's fees paid on a contingency basis linked to the expert's testimony. When a mental health professional is paid for expert testimony on a contingency fee basis when the case has settled, this creates a risk of biased and non-objective opinion. Future payment tied to the outcome of the case creates a risk that the professional's judgments could be consciously or unconsciously influenced. Regarding fee arrangements, the American Psychological Association Division of Psychology and the Law 2011 Specialty Guidelines for Forensic Psychologists (5.02) state:  "Forensic psychologists seek to avoid undue influence that might result from financial compensation or other gains. Because of the threat to impartiality presented by the acceptance of contingent fees and associated legal prohibitions, forensic practitioners strive to avoid providing professional services on the basis of contingent fees. "

6. Attorneys are required to zealously represent the interests of their clients. Zealous advocacy occurs in a context when the attorney could be confronted with mental health expert opinion which is in fact false; the attorney suspects but is not certain that the opinion is false; and/or the lawyer does not sufficiently understand the limitations and/or potential misuse of certain types of mental health opinions. An attorney’s duty for candor is found in Rules of Professional Conduct, Rule 5.200, and additionally California Business & Professions Code section 6068 (d). The attorney shall not seek to mislead a judicial officer or jury either by a false statement of fact or law or by artifice. A lawyer would not knowingly offer testimony believed to be false or adverse to a client. However, particularly involving mental health testimony, it may not always be easy to differentiate false from questionable testimony. Some cases involve a range of contradictory expert conclusions. Some clients may have serious personal problems which may create strong personal feelings within the lawyer, which could potentially compromise the lawyer's judgment about the testimony. The perceived accuracy of testimony can be clouded because of the presence or absence of many factors, including the differing time periods when the client is evaluated, the presence or absence of situational factors likely to trigger strong emotional reaction, or expected changes of functioning associated with the usual course of a particular disorder. Sometimes qualified experts may seek to offer what appear to be persuasive opinions based upon purported  "syndromal evidence, " labeling something a "syndrome" based upon psychological characteristics referenced in the psychological literature about certain types of persons. Cloaking a set of symptoms in the language of a syndrome creates a false belief in the validity and reliability of the opinion which is not generally scientifically supportable. In cautioning against using syndromal language, Melton and Limber (1989, Psychologists Involvement in Assessment and Treatment of Child Sexual Abuse, American Psychologist, 44, 1225) wrote  "when the clinician enters the courtroom, he or she should don a scientific hat. Presentation of greater certainty than is scientifically warranted does not assist the fact finder. Rather it misleads and in so doing, undermines pursuit of justice and the exercise of legitimate legal authority. "

Conclusion

The ethical representation of litigants with mental health issues requires lawyers to carefully consider knowing the tolerance of their client for the possible litigation; confidentiality and privilege considerations for information about a client's prior psychotherapy; the different roles and qualifications of mental health professionals and considerations about the admissibility for mental health opinions; and understanding the differences about the payment of lawyers and mental health experts on a contingency-fee basis. Best practice in this type of representation should include an awareness of subtle considerations, including how an attorney's feelings toward the client can affect professional judgments, the difficulty in differentiating the appropriateness for conflicting mental health opinion and when to recognize how sometimes qualified experts may unintentionally offer misleading opinion.

Steven Sparta, Ph.D., is in independent practice, dual boarded in clinical and forensic psychology, and involved in a variety of psycho-legal matters. He is a voluntary clinical professor of psychiatry at the University of California at San Diego School of Medicine and a member of the State Bar of California Committee on Professional Responsibility and Conduct.