Wednesday, October 23, 2013

The Day Aliens Abducted My Client: My Journey Into Client Incompetency

Shortly after graduating law school, I began my legal career representing plaintiffs in employment discrimination cases. One of my first clients is one that I will never forget! My client was a very nice woman - I liked her personally, and for whatever reason felt especially compelled to help her. On top of that, she actually seemed to have a case she could win, which is becoming increasingly rare with employment discrimination.  

My client filed a pro se complaint alleging that she was discriminated against on the basis of disability, and other grounds, when she was terminated from her job. The official record showed that after several successful years working for her employer, the employer reported that my client began displaying strange behavior, such as insisting that aliens where harassing her at home, abducting her, and performing unusual experiments on her, and that this was the reason she had been missing deadlines or missing work all together. The complaint further alleged that my client believed that her employer was involved with, or had direct knowledge of the repeated alien harassment, but that her employer refused to do anything to help her.

For some people, discussions about the existence of extraterrestrial life is inherently "crazy," while on the other end of the spectrum there are people that believe that the existence of extraterrestrial life is completely plausible. Well, my client's employer was the former. The official record showed that her employer requested that she submit to a medical evaluation, and as a result of the medical evaluation, my client was diagnosed with a mental condition similar to paranoid schizophrenia, which she adamantly denied having. Nonetheless, my client sought a reasonable accommodation for her disability, but her request was ignored by her employer.  

Eventually, my client was terminated as a result of her behavior, leaving her jobless, unemployable and virtually homeless. According to the record, the official reason from her employer was that she failed to perform the essential functions of her job. Frankly, however, I believe the employer was afraid of the stigma associated with her real or perceived mental disability and that was the real reason the employer terminated her. Initially, I even tried to give my client the benefit of a doubt - who am I to say whether or not the aliens are real? Over time, however, my opinion changed.

In that time, I had worked hard to get my client an excellent settlement - a judgment that I was confident she would not get had she gone to trial. Yet, during a settlement conference with the judge and opposing counsel, my client waived attorney-client privilege, and openly expressed that she was not going to allow the aliens, her former employer, or anyone else in cahoots with them, including me, the judge, and opposing counsel, to continue to "silence" her.  Instead, she wanted to forgo the settlement and proceed to the trial. So there I was - stuck. I really wanted to help this woman because I genuinely believed she was wronged by her employer and I am sympathetic to mental health issues. Yet, her mental disability was preventing her from making a competent decision regarding her case.

So how do you handle a situation where it is apparent that your client lacks the mental capacity to make decisions regarding his or her case? Start by doing what I did - consult your state's Rules of Professional Conduct. 

The ABA Model Rules of Professional Conduct, Rule 1.14: Client With Diminished Capacity states that:

(a) When a client's capacity to make adequately considered decisions in connection with a 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 Rule 1.6. When taking protective action pursuant to paragraph (b), the lawyer is impliedly authorized under Rule 1.6(a) to reveal information about the client, but only to the extent reasonably necessary to protect the client’s interests.  

In my situation, I followed all of the rules outlined above in an attempt to assist my client (even calling the Bar Ethics Hotline) but it did not help. After a lot of back and forth and the assignment of new counsel, the client ultimately signed a settlement agreement for less than half of the amount of the original settlement I negotiated for her. 

What should you take away from my experience?

1.   Learn how to spot diminished capacity.

2.   If you suspect your client may have diminished mental capacity, check your state's Rules of Professional Conduct on the issue.

3.   Act early when seeking protective action if your client cannot adequately consider decisions in connection with the representation.

4.   Only disclose information reasonably necessary to protect the client's interests.

5.   If a third-party guardian gets involved, be mindful not to forget who you represent.

How would you have handled this situation?

Erica N. Cordova is the Managing Attorney of HR Esquire - The Cordova Law Firm LLC. At HR Esquire, we believe in passing the savings along to our clients through our part-time law firm model. We strive to help small businesses develop a solid foundation and legal strategy so they can be successful. We will work to improve legal compliance and employee relations. Our goal is to improve your business' performance and provide legal advice for a successful human resources strategy via our Offsite General Counsel. Find out how we can help you and your business today! If you have questions about this article, please email 


  1. Very interesting post. I wonder if a conservatorship was a good route to go in this case. In general, I think attorneys need to be sensitive to capacity issues. Here's a blog post I wrote on what to go the conservatorship route:

  2. I personally would have liked to seek a guardian for my client. However, she retained the firm very late into her case, so by the time her lack of capacity was obvious, it was only a week before trial and it simply wasn't a viable option due to time constraints and other considerations.

  3. Fascinating case. I was once involved in terminating someone with a diminished capacity problem. We fully believed it was early onset alzheimers or similar, but not being doctors, we couldn't diagnose. Additionally, she refused any suggestions to see a doctor. It was absolutely horrible, but it wasn't because we were scared or discrminating against a mental disability. It was because she could no longer do the job. (She'd been with the company 10 years.)

    Mental illness/dementia are terrible burdens.