APPOINTMENT OF COUNSEL FOR PATIENTS/CONSERVATEES
ADAPTED IN PART FROM CA RULES OF COURT § 7.17 (LOS ANGELES)
LEGAL REPRESENTATION OF CLIENTS IN THE LPS SYSTEM
This issue has not been raised too often but given that LPS Conservatorships are reserved for those who are severely mentally ill to the point of being gravely disabled, counsel representing LPS Conservatees should have some form of extra certification in mental health law. Clients should be represented by competent attorneys specialized in the field of mental health and conservatorship law as representation by counsel not trained in mental health law may subject the patient to demonstrable prejudice. ABA Standards would help implement a baseline for minimum standards for counsel representing clients in the mental health system.
Mental health certification should be designated a professional achievement that signifies an attorney's specialized knowledge, skill, and verified expertise in the field of mental health and LPS Conservatorship law. This credential should be granted only to those attorneys who successfully complete the rigorous application and examination process as this would represent the highest testament to an attorney's dedication to this unique discipline.
This mental health law certification program would be created and sponsored by grants from the Department of Health and Human Services and is accredited by the American Bar Association/California Bar Association. The program would obtain the necessary authorization from state regulatory authorities on proper legal specialization.
Eligibility for Appointment as Counsel for Adults.
(1) California State Bar Membership. An attorney must be in good standing with the California State Bar at all times in order to represent a client in an LPS Conservatorship proceeding.
The attorney must complete the certification process by spending the last three years (preceding application) substantially involved in the practice of mental health law/LPS Conservatorship law or be able to evidence recent experience which demonstrates reasonable competency in the area of LPS Conservatorship law.
(A) The attorney must be familiar with Welfare and Institutions Code § 5000 et seq, Evidence Code, local and state court rules, mental health court policies, relevant LPS Conservatorship case law, follow practice guidelines set forth in said county’s Local Rules, and undergo training regarding the substantive, ethical, and procedural issues unique to mental health/conservatorship court.
(B) The attorney must be familiar with the various stages of the court proceedings from 5150 holds, cert review hearings, Riese hearings, and general LPS Conservatorship knowledge. This includes, but may not limited to, the structure and functioning of the mental health court, the Public Guardian, inpatient and outpatient program options, and issues related to IMD placement, psychiatric medication administration, and anosognosia.
(C) The attorney must be familiar with appellate and other review procedures
including writs at all stages of detention, annual rehearings, appellate process, and other extraordinary remedies.
(D) An attorney who is new to LPS Conservatorship court must observe and/or be
available to participate in each type of mental health hearing from a 14 day cert review hearing through review of re establishment of an LPS Conservatorship prior to accepting an appointment as counsel.
(E) An attorney who is new to LPS Conservatorship court must visit and learn about ___number of types of placements related to LPS conservatees such as IMDs, board and cares, BHU’s, and shelters to best understand where LPS Conservatorship clients most likely have come from or been discharged to in the past. Additionally,
(F) The attorney must be familiar with the effects of racial, cultural, ethnic,
sexual orientation issues, and language differences with regard to mental illness and the revolving door of homelessness, jail, and hospitals.
In addition to meeting the above eligibility requirements for appointment as counsel an attorney
seeking appointment must be familiar with the following:
(1) Mental illness development stages including a prodrome, acute stage of illness, and remission/partial remission.
(2) Interviewing techniques for acutely psychotic patients and perhaps integrating Xavier Amador’s I am not Sick I don’t need Help book.
(4) The types of placements available to mentally ill consumers, and issues related to each type of placement including, but not limited to (i) a working knowledge of licensing requirements for BHUs, IMDs, and board and cares
(5) The impact of multiple stints of hospitalizations, hospitalizations, and jail time on the patient, and the importance of balancing the importance of maintaining long term uninterrupted treatment against the patient’s due process rights
(6) The current state of psychiatric, housing, and other related resources available for
patients in the LPS system, the funding therefor, and the means of identifying the need
for and the accessing of such resources;
(7) In the course of representing a client, the attorney should make all reasonable efforts to ensure that the patient understands the court processes, proceedings, and the potential and actual consequences of the proceedings. Special efforts should be taken to ensure that LPS Conserved clients understands these matters as these client often face their first hearing while being currently gravely disabled and partially psychotic both of which affect the client’s ability to comprehend key aspects of the LPS Conservatorship proceeding.
(8) The attorney must maintain a current business address and working telephone
number and promptly notify a client of any change of address or telephone number. The attorney
should provide the client with his or her business card.
(9) At the initial interview, when possible given the short period of time allotted, the attorney should inform the patient, the nature of LPS Conservatorship proceedings, the role of them as counsel, the patient’s rights including the right to confidentiality, jury trial, right to remain silent, right to call witnesses, and right to appeal, the nature of the subject matter of any LPS Conservatorship petition and the contents of any related report; and
(10) The attorney should be actively involved in and vigorously advocate at every stage of the proceedings. They should ensure to take any necessary legal steps that would promote and advance a patient’s rights while ensuring that they also present to the court what is in the patient’s best interest. Exceptions may apply here.
Eligibility for Continued Practice in LPS Conservatorship Court
(1) Education/Training. A court-appointed attorney in LPS Conservatorship court must
complete a total of 12 hours of continuing education credits/minimum continuing legal education each year. This training shall include recommended attendance to NAMI training meetings, at least X hours of training offered at the mental health Court, other trainings approved by the state bar like Versatape, and others to be determined,
(2) Ongoing training shall also include summaries of current changes in the LPS Conservatorship
laws and related statutes, summaries of recent and relevant case law, and information and instruction on mental illness, homelessness, substance abuse and mental illness, government benefits for mentally ill consumers, and related diversity issues.
(3) Evidence of Competence. The attorney must file in the office of the Presiding
Judge of the Mental Health Court a certification of satisfaction, signed under penalty of perjury, of the continuing education requirements not later than February 15 of each year (Form to be determined). An attorney’s failure to comply with this requirement may result in the court’s refusal to appoint the
(i) Caseloads for Attorneys. The court shall adopt the caseload standard for patient’s attorneys as per the Judicial Council standards.
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