Understanding the Dynamics of the Attorney-Client
Relationship in Professional Abuse Cases
John D. Winer, Esq.
http://www.johnwiner.com
San Francisco, CA
I. Introduction.
In the past, I have written and lectured extensively on how to
maximize a plaintiff's recovery in therapist abuse cases. (1)
After representing several hundred victims of therapist abuse, it
has become clear to me that maximizing their financial recovery is
only one part of the role that a plaintiff's attorney must undertake
in representing abuse victims. Although financial compensation is
important, and often life saving to abuse victims, it is only part
of what these women (2) need to survive and, hopefully, successfully
go on with their lives. In addition to money, an abused woman needs
to feel that the litigation and its outcome have contributed to her
psychological healing. In other words, it is important for the
litigation to become part of the victim's empowerment process. This
is the psychological process by which an abuse victim "takes
back control" of her life.
I have discovered, often the hard way, that although there are
significant limitations as to how much an attorney can do to aid in
the empowerment process, it is important to: one, recognize that
your clients are often looking for more than just monetary
compensation, two, aide your client's empowerment when you can (or
at least not injure it) and, three, let the client know from the
very beginning what your limitations are in terms of aiding your
client's psychological healing.
Two different, but interrelated events helped me realize that
this article needed to be written. First, when looking back at the
professional abuse cases that we either settled or tried over the
years, I could not honestly say that the clients who ended up with
more money were necessarily happier with the result and more
satisfied with our performance, than clients who received relatively
little monetary compensation. Secondly, a client, who also leads a
women's victims' support group, informed me that although almost
every member of her group whom we had represented was satisfied with
the result that they ultimately achieved, they were sometimes less
than satisfied with the way that they felt they were treated, both
by the "system" (which I would have expected) and by our
office (which was something of a surprise).
Since this conversation, I have spent a great deal of time
talking with other attorneys who handle professional abuse cases and
my other clients and former clients to attempt to gain an
understanding of the dynamics which occur between attorney and
client in professional abuse cases.
As attorneys we could probably all become more sensitive to our
clients' needs, at least in terms of verbalizing our own flaws,
limitations and our role in the system to help our clients have a
reasonable expectation of us and the litigation process from the
very beginning of the attorney-client relationship. Since we are
dealing with intense human emotions (ours and our clients') and
clients who have been, by definition, traumatized at least once by a
professional, there is nothing that we can do to absolutely insure
smooth and satisfactory communication between attorney and client.
We will continue to make mistakes and our clients will sometimes be
disappointed in us and will sometimes have unrealistic expectations
of us. Also, no matter what we do, there will be clients who,
because of the nature of their underlying personality structures
and/or their response to the litigation process, will be unhappy
with us. However, it is my hope and belief that in most cases, if we
do our job properly, the plaintiff will feel satisfied with the
result she receives, both monetarily and emotionally, and will be
satisfied with the work that we put into achieving that result.
II. How the Client's Background May Impact the Attorney-Client
Relationship.
Although victims of professional abuse vary widely in background,
age, personality and intelligence, it is useful to examine at least
one of the characteristics that they may have in common.
Most victims of professional abuse were either sexually or
physically abused as children or otherwise traumatized by an
unavailable or distant parent.
In most cases, it is the childhood abuse that "sets the
plaintiff up" for the later abuse by the professional. As a
result of the childhood abuse or neglect, the plaintiff develops a
poor sense of self and difficulty differentiating between
appropriate and inappropriate conduct on the part of care givers.
(Something as seemingly crazy and inappropriate as a therapist
having sex with a patient does not seem so abnormal to a person who
had sex with their father.) The poor self image allows the plaintiff
to feel overwhelmingly flattered by the attention of the powerful,
magical (in her eyes) professional. The inability to recognize
appropriate professional boundaries leaves the plaintiffs
particularly vulnerable when the professional steps outside of his
boundaries to begin the exploitative behavior.
As attorneys, we should recognize that the early childhood trauma
of our clients not only led to the abuse by the professional, but
will also have a profound impact on our client's relationship with
us.
III. Stages of the Client's Response to the Perpetrator's Abuse
and the Litigation. (3)
As attorneys, we must remember that the client will be undergoing
a very painful emotional and psychological recovery from her abuse
at the same time that she comes to see us for legal help. Although
it would make our job easier, it is impossible for the client to
successfully compartmentalize the psychological recovery on the one
hand, and the "legal" recovery on the other hand.
Whether or not the client litigates her case, she will be
"recovering" from the professional abuse in significant
ways for years after the abuse ends. Whether the litigation helps or
hinders the recovery process may be debated. (Plaintiff's experts
will say it helps, the defense experts will say it hinders.)
However, there is no question but that the litigation complicates
the client's recovery. If we can understand the client's
psychological recovery process, we will better understand the
client's reaction to the litigation and to us.
As attorney and client, you will have to travel a sometimes rocky
and usually long road together. Your client will experience a fairly
predictable range of emotions during the course of the litigation.
We will attempt to delineate five recognizable stages of the abuse
victim's recovery and reaction to the litigation.
A. Stage One: Hurt and Puzzled
At this point the plaintiff is still suffering acutely from the
abuse. Time seems to play no role. Women who were abused many years
ago may "hurt" more than those who suffered a recent abuse
because they have been carrying their feelings around for a longer
time. (This is why the statute of limitations seems so unfair to
abuse victims.) They are often puzzled, they do not know what they
can do to "make things better". It is often at this stage
that they will make their initial appearance in your office.
Do not seem surprised to find a woman who is confused and
ambivalent. It is not automatically safe to assume that she wants
revenge or even money from the defendant. Often, at this stage, any
notion that their suit will hurt or anger the abuser is intolerable
because many of the victims still harbor affectionate, protective
feelings for the perpetrator and/or may be afraid of him.
At this stage, it is important that you clarify as much as
possible the client's goals and your role in the litigation. See
Section VI.
B. Stage Two: Hope
After the attorney-client interview, the client often feels a
great surge of hope. She has found an ally who will help her fight
back against the "enemy" as she may now see the defendant.
At this point, the element of control becomes essential. The
plaintiff who has emerged from an abusive professional relationship
has usually been controlled by the abuser. Her emotions, her time,
her values, her aspirations, her home life and career have probably
suffered by the controlling perpetrator. In the process of
empowerment, she virtually longs to take back that control, and in
the process of litigating her case it is her opportunity to do so.
Therefore, her attorney should expect her (probably more than other
kinds of clients) to want desperately to be involved in all aspects
of the case. She will want phone calls returned quickly, she will
want to know all the nuances of the process, she will want to have
all the information necessary to make decisions. In other words, she
may transfer her needs for control of the abuser onto her lawyer.
She wants to be in the driver's seat or at least in-tandem.
As an attorney representing abuse victims, you must make it clear
to the client how much control you are willing and able to give
over. Every attorney has a different style, and, your client has a
right to know how much participation she will have in the discovery
process and decision-making process. Also, expect a shift in the
client in this regard. During the first stage, she may want you to
take care of everything. However, as her empowerment grows, she will
probably want to take a much more active role. As a general rule, we
explain to the client that she will have tremendous power and
control over any settlement decisions. However, it is impossible for
her to be involved in every litigation and strategy decision. We
simply do not have the time to involve the client in day to day
discovery decisions. If you have a client who needs to participate
in every decision in the case, and you are not able to accommodate
her, then, you both should seriously consider not working together.
C. Stage Three: Anger
During the discovery process when depositions are given and taken
and the client is subjected to intense scrutiny and must listen to
or read the defendant's version of what happened, she may become
furious with the defendant, the system and her attorney for not
protecting her. She begins to resent a judicial system which she
feels is too lengthy, unpredictable and unfair. She may even
consider dropping the action altogether.
Simultaneously, the client may find that the relatively
unemotional forum of litigation clears her mind and forces her to
look at the situation logically. This shift from an emotional
approach to a more logical approach may produce great feelings of
anger towards herself and towards the perpetrator. At this point,
the client usually drops her reluctance to take money and looks for
ways to punish the abuser.
This may be a particularly difficult stage for attorney-client
relationships because, the client may direct her rage for the abuser
and the judicial process onto the attorney. As much as possible, the
attorney must not invalidate the client's anger at the perpetrator
and the system and, the attorney must ride out any anger which is
directed at the attorney.
D. Stage Four: Frustration
The client will become frustrated with the litigation process.
Many clients in support groups complain about the countless delays,
continuances, vacations, unanswered letters and phone calls.
Frustration may turn into despair. Whether justified or not, the
plaintiff will probably feel, at times, a lack of attention. This
lack of attention may be reminiscent of the manipulation she
suffered at the hands of the abuser. She will again feel that
control is slipping away. She will feel that her attorney is doing
nothing, that he or she is ignoring her and she may believe that the
attorney has found another case more attractive or lucrative. This
will result in feelings of rejection.
Although there is probably nothing an attorney can do to prevent
this stage from occurring, there are some things which he or she can
do to make it easier for the client. In particular, the attorney
should reassure the client that he or she has not lost faith in her
case (unless they have) and that the attorney is optimistic about a
good outcome. An effort should be made to explain to the client that
as an attorney, you handle many cases at the same time, and there
will be peaks and valleys in terms of the activity level. At times
when another case is very active, you must devote almost all of your
time and energy to that case. That time will come in this client's
case and, they will want you to be devoting a similar amount of time
and energy to their cause. This may not put the client completely at
ease, however, it may help to ease their burden.
E. Stage Five: Resolution
One of the periods of activity which clients find very satisfying
is the resolution process. Most cases are settled, and, most cases
are settled to the satisfaction of the client. Often, the process of
settlement is as important to the client as a monetary award. For
the first time since the very beginning of the case, the client is
closely involved in the decision-making process. The process of
mediation or settlement is one in which the client's wishes are
heard, her decisions are crucial and her presence is vital. She is
working hand in hand with her attorney and feeling in control.
The attorney should never underestimate how emotionally
significant the termination of the litigation is to the plaintiff.
In most cases, the termination of litigation will have a very
positive and negative component. On the positive side, the client
will have achieved some closure and, hopefully the sense that she
was "right". On the negative side, the client will now
lose the focus which the litigation has provided to her. Although
she may have intellectually realized it, she now will have to face
the emotional reality of the fact that "winning" the case
will not heal the deep wounds which she has suffered at the hands of
the perpetrator. As an attorney, I believe it is important to
encourage the client to remain in therapy for as long as necessary,
and, to explain to the client that the termination of the litigation
is actually an opportunity for her to devote all of her energy to
the healing process.
IV. Attorney-Client Relationship and the Transference Process.
The key concept in professional abuse cases is transference. In
its most formal definition, transference is the process by which a
psychotherapy patient unconsciously transfers feelings, perceptions
and desires which she had for a parent or significant figure in her
early childhood onto the psychotherapist. Psychotherapists are
trained to treat patients by recognizing the transference and then
helping patients gain insight into their own problems through
utilization of the transference.
Although transference is a term utilized in psychotherapy,
certain transferences exist in all relationships. As a general rule,
the more one-sided a relationship, in terms of power and knowledge,
the more intense will be the transference.
Thus, it is essential that an attorney recognize (actually in all
cases but particularly in professional abuse cases) that there will
be a transference which exists between the attorney and client and
the client and attorney which will affect the attorney-client
relationship in critical ways.
In most cases, an attorney can adequately represent their client
without knowing the first thing about the transference process. For
instance, in a car accident case, an attorney may become
inappropriately angry at a client as the result of a transference
reaction but as long as the attorney maintains his or her
professional stance, it is probably not particularly important that
the attorney analyzes whether his or her anger is a result of the
transference process or any other factor. However, in professional
abuse cases, in which the client has already been abused by a
professional, and probably her parents, the attorney must be
hypersensitive not to repeat that abuse and must be hyperalert in
maintaining his or her own appropriate boundaries, both in terms of
sexuality and containing emotions. In other words, client contact
must be at an extraordinarily professional level. This does not mean
that the attorney has to be cold and uncaring but, as much as
possible the attorney must constantly keep his or her own feelings
for the client in check, whether they are positive or negative
feelings.
It is even more important for the attorney to recognize the fact
that the client will be transferring unconscious feelings stemming
from his or her childhood onto the attorney. Since attorneys are not
trained in "handling" the transference, it would be a
monumental mistake for an attorney to attempt to "help"
the client by helping the client "work through" the
transference with the attorney. Rather, the attorney should
recognize the fact that the transference exists, do what he or she
can to minimize the transferential nature of the relationship and
not do anything to intensify the transference. Things will run far
more smoothly if attorney and client are relating to each other as
"real people" as opposed to transferential fantasy
figures.
V. Leveling Out the Client's Expectations.
It goes without saying that the attorney must do absolutely
nothing to encourage the client's sexual feelings about the
attorney. There are many ways in which an attorney can be
unconsciously sexually seductive without the attorney realizing it.
The power that comes from the attorney's role as
"professional" is in itself seductive to many clients.
That is an inherent part of the process and entirely appropriate and
acceptable. Where an attorney can get into trouble, particularly an
attorney who does not handle many of these cases, is by misusing
that power to manipulate the client and by increasing the client's
expectations and, perhaps, magical expectations of the attorney by
the attorney holding himself or herself out as being the client's
"savior."
Everybody, even the most psychologically healthy people, have
some secret, magical fantasies of being saved. Children who have
been abused will often have stronger fantasies of this type than
other children. More often than not, the abusing professional who
you are suing will have stirred up these feelings in your client and
will ultimately have grossly disappointed your client. By the time
the plaintiff comes into your office, she will have been led down a
false magical path by the abuser, betrayed and spit out. She will
often feel like she is at the end of a rope or treading water and
you are the person who can save her.
It is normal, particularly in the severe abuse cases, for the
client to have these feelings and desires. Since you, as an
attorney, deal in a privileged, secret (to the client), mystical
world of litigation in which you have the knowledge and power and
your client does not, the very nature of the system and relationship
will serve to increase the magical expectations of the client.
What you, as an attorney, must do is recognize this phenomena and
do whatever you can to decrease the magical expectations which your
client will have of you and your office. If you let your ego get in
the way and either actively or passively allow the client to believe
that you will save her or that the system is set up for that, you
will have an unhappy client by the end of the case because you
cannot possibly deliver on the client's expectations.
There are ways in which you can help to keep your client's
expectations balanced. I make it a point from the first interview
until the end of the case to make it clear that although I
specialize in abuse cases, I am not always successful and there are
certain limitations as to what I can do for a client. I make it a
point to not only talk about some of my past successes to clients,
but also to talk about my failures. I explain that I make mistakes
and my judgment is not always correct. In doing this, I am
attempting to limit the magical expectations a client may have of
me.
VI. Using the Initial Interview to Lay the Groundwork for a
Successful Attorney-Client Relationship.
We usually spend between two and five hours on the initial
interview with a client in a professional abuse case. We go into the
client's entire background from childhood to present. During the
interview, we are attempting to assess two things: one, whether the
plaintiff has a viable case and, two, whether we will be able to
help the client in such a way as to meet their expectations.
We spend the last half hour to an hour and a half of the
interview offering the client our analysis of the case and our
opinion as to what they can reasonably expect to achieve in the
litigation assuming that everything goes as planned. We also
directly ask the client what they want from the litigation and, if
their goals are too ill-defined or out of line with what we can
offer or what they can reasonably expect to achieve, we do not take
the case.
We do not ask our clients what they hope to achieve until we have
informed them about the litigation process. Before a client can
formulate their own expectations, they must be well informed of what
they can expect during the litigation and settlement proceedings.
Professional abuse cases have unique characteristics and problems
which the client cannot know about until they have been informed by
us. First of all, the existence or non-existence of insurance
coverage may dramatically affect the client's recovery. Secondly,
even if there is insurance coverage, the facts of the particular
case in relationship to sexual act exclusions may affect the outcome
of the case and ultimately the value of the case. Third, there is
usually at least some statute of limitations issue which will
greatly lower the potential value of the case and increase the
client's chances of losing completely and having to pay the
defendant's case costs. Fourth, there may be monumental proof
problems, particularly if the defendant denies the sexual
relationship.
Aside from these special problems, the litigation process itself
is usually more problematic and traumatic for professional abuse
victims than it is for other litigants. The plaintiff's deposition
may take more than a week to complete. The plaintiff's spouse will
usually be dragged into the case. Family members and friends may
have their depositions taken. Almost every aspect of the plaintiff's
past will come into evidence including otherwise privileged
psychological and drug/alcohol abuse records. In other words,
depending upon the tact that the defense takes, the client's entire
life and privacy may be invaded by the litigation. They may end up
feeling like a goldfish in a fish bowl.
We explain to the client that in most cases the worst case
scenario, in terms of invasion of their privacy, does not come to
light. However, there will be times during the litigation that they
will probably wish that they had never brought the case. But by the
end of the case, almost all clients are glad that they brought the
case and feel that they have achieved fair monetary compensation and
that the litigation, though painful, has to some extent aided them
in their psychological/empowerment process.
It is not at all uncommon for a client to tell us during our
initial interview that they are not bringing the action to achieve a
monetary recovery. I believe that clients honestly believe that
statement when they make it before they begin the litigation;
however, it has been our experience that the clients who make that
statement at the beginning of the case, may end up being the clients
who have the highest expectation regarding monetary recovery by the
end of the case. I am not sure what accounts for this phenomenon but
it is important for the attorney to recognize that it exists. (4)
Further, this should be a giant clue that you may not be able to
achieve through the litigation what the client is really looking
for. It is critical in these situations that you explain to the
client that although you will do what you can to aide the client's
psychological empowerment, you are being hired to achieve monetary
compensation. The same clients who say they do not want any monetary
recovery will want you to take their case on a contingency fee
basis. It seems elementary, but you must explain to the client that
you cannot take a contingency fee based upon a non-monetary
recovery. For instance, a client may want the defendant to be forced
to enter into therapy. We explain to the client that although we can
ask for this condition as a term of settlement, we can't force it to
occur. Ultimately, the case will be settled based upon what a jury
will do if there is a trial. A jury, as part of their award, can
only award damages and cannot take action such as forcing a
defendant to enter into therapy or to stop practicing.
We also explain to the client the fact that they have the right
to file an action with the licensing board. It is often the
licensing board that has the power to achieve the type of
non-monetary results which the client is interested in. For
instance, the licensing board can stop a defendant from practicing
or limit the defendant's practice and the licensing board can often
insist, as a condition of settlement, that the defendant enter into
treatment. However, we also explain to the client that filing a
licensing board action may have negative consequences on their case.
It may, in certain circumstances, make the defendant want to fight
the case harder because they feel that they have a better chance in
front of a jury than they do in front of a panel of their peers.
Also, is it really in the client's best interest to put somebody out
of business from whom they are attempting to obtain monetary
compensation? There is no statute of limitations on a licensing
board action; therefore, it is often in the client's best interest
to wait until the end of the civil case to bring a licensing board
case. However, it is ultimately up to the client to decide when and
if to bring the action and the strategy considerations must be
carefully explained.
Another critical point which should be brought up with the client
at the initial interview is that in the majority of cases, the
defendant will ask for some form of confidentiality as part of any
settlement agreement. The requested confidentiality may range
anywhere from the amount of the settlement remaining confidential to
all of the underlying acts and the fact of the settlement remaining
confidential. Under public policy, the plaintiff will still be free
to pursue a licensing board action; however, it is legal for the
defendant to request almost any other type of confidentiality. This
request for confidentiality will often have a significant
psychological impact on the plaintiff, particularly if they were
sexually abused as a child and were asked to keep that relationship
secret. The request for confidentiality often recreates that
childhood trauma and reactivates those abuse memories. The client
can, of course, refuse to comply with the confidentiality request;
however, that will often mean that they will have to face the risks
and trauma of a trial and even then, assuming that they achieve a
verdict, they will probably be requested to enter into a
confidentiality settlement to avoid the risk of appeal.
Although you will not be able to predict exactly what type of
confidentiality will be requested, it would probably be a good idea
to let the client know at the very beginning of the case that there
will be a confidentiality request. If the client is unwilling to
agree to any type of confidentiality, then you may decide that you
do not want to take the case since the expense and risk of knowing
that you are going to have to try the case may not be worth the
potential recovery. In any event, it is best if the confidentiality
request at the end of the case does not come as a surprise.
VII. The Importance of Informing the Plaintiff About How Your
Office Functions During the Litigation Process.
Once you have decided to work together (if not before), it is
important to explain to the plaintiff the usual way in which your
office litigates and processes cases. For instance, in our office,
most of the direct client contact, not involving settlement
discussions, is conducted through an associate attorney and/or a
paralegal. Although I am generally aware of what is occurring in the
case, and I make most of the strategy decisions, there may be
periods of time in which an associate or staff member has more
knowledge of the details of the case than I do. It is helpful if the
client knows this from the very beginning so they know what to
expect.
Also, we do not send the client a copy of every piece of written
discovery that changes hands. Again, it is useful if the client
knows this from the beginning.
Clients often complain that "nothing is happening on their
case". We attempt to explain to clients at the time of the
initial interview that there will be times periods when there will
be frenetic activity on their cases, and, there may be other times
when we may be in a holding pattern waiting for a court date. The
speed at which a case moves is often dictated by the courts and not
us. Further, in terms of settlement, delays are often caused by
internal defense posturing between the insurance defense lawyer, and
defendant's personal counsel. This is another matter that we have
little control over. In any event, we explain that we will try to
move things along as fast as possible. However, there will
inevitably be times during her case when there will be not much
going on. The client should be prepared for this inevitable
situation.
Of utmost importance is for you to define what your role and the
role of your staff will be during the litigation. We receive many
calls from clients which would be better handled by the client's
psychotherapist. We avoid giving psychological advice, at any cost,
and if a client calls complaining of extreme depression or
suicidality, we ask the client to call their psychotherapist and, if
they have no psychotherapist, to contact an emergency room. It is a
large mistake for the attorney to think that he or she can act as
the client's psychotherapist. It is too draining on the attorney and
ultimately will lead to burnout and resentment and it is probably
not that helpful for the client who needs expert psychological
advice at those moments and not the help of a lawyer. That does not
mean that the attorney should not be compassionate; however, the
compassion is best shown by leading the client towards somebody who
is truly an expert in helping them with their particular
psychological need at the moment, while you help them with their
legal case.
VIII. Conclusion.
Given the nature of professional abuse cases, it is inevitable
that relationships between attorney and client will be strained from
time to time. However, if the attorney is hyper vigilant to stay in
his or her role, and the client is adequately informed as to what to
expect, both in terms of the litigation and your office procedure,
conflicts and difficulties should be able to remain at a minimum.
The attorney must recognize that the client may be seeking more from
the case than monetary compensation and the client must recognize
the fact that they are hiring the attorney for the main purpose of
achieving monetary compensation. If the expectations of attorney and
client are understood at the beginning of litigation, there is a
good chance that the client will achieve a result in the case that
will make her satisfied, both with the result and the performance of
the attorney.
1. "Medical Negligence -- Psychotherapist Sexual Contact
With Client" 14 AmJur Proof of Facts 3rd 319; Helpful Hints on
Litigating Therapist Abuse Cases, CTLA 30th Annual Convention
Syllabus, 1991; Trying the Therapist/Patient Sex Case, CTLA 25th
Annual Tahoe Seminar Syllabus, 1990.
2. Although professional abuse victims can be male or female, the
overwhelming number of victims are women. Therefore, at times in
this article the feminine gender only will be utilized; however, the
same basic principles would apply to male clients.
3. The author would like to thank Gretchen Haskin, founder of
Forbidden Zone Recovery, a Bay Area professional abuse victims
support group, for her substantial contribution to this section of
the article.
4. Gretchen Haskin of the Forbidden Zone Recovery Group offers
this possible explanation: "Why do clients deny wanting a
monetary settlement during the 'hurt and puzzled' stage? Taking
someone's money is punitive, and they are not ready to punish. Also,
it seems a greedy and 'unfeminine' thing to do. It also may
represent another tie to the perpetrator much like the divorcing
woman who says 'Oh, I don't want a cent from him!' (and regrets it
later). In our society, money has an emotional value that often
exceeds its purchasing value, and because the injury has been
emotional, money doesn't seem to be an adequate compensation."
This article has been reproduced on AdvocateWeb with permission
from the author. Copyright © 2001 California Legal Info Center.
See AdvocateWeb's disclaimer.
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