Disability and Guardianship Project Disability and Abuse Project 9420 Reseda Blvd. #240, Northridge, CA (818)

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1 Disability and Guardianship Project Disability and Abuse Project 9420 Reseda Blvd. #240, Northridge, CA (818) April 20, 2017 Chief Justice and Associate Justices California Supreme Court 350 McAllister Street San Francisco, CA Re: Comments on Proposed Amendment to Rule 1.4 (Communication with Clients) Case Number S To the Court: We are writing to urge the Court to disapprove proposed Rule 1.4 and to send it back to the State Bar for reconsideration. This is necessary because the proposed amendment fails to address the issue of communications with clients who have cognitive and communication disabilities. This is a significant omission one which may adversely affect substantive and procedural rights of such clients, especially those who are involuntary litigants in probate or mental health conservatorship proceedings. Rule 1.4 should advise lawyers of their duty to provide meaningful access to justice to clients with such disabilities. Whether in the rule itself or in a comment to it, there should be an emphasis that effective communications with clients who have special needs due to a disability are required as a matter of federal due process as well as Title II and Title III of the Americans with Disabilities Act. Title II of the ADA applies to state and local courts and, by extension, to public defenders and court-appointed attorneys who represent clients with disabilities. Title III of the ADA applies to attorneys who are privately retained by such clients. A different proposal (subdivision (a) of proposed Rule 1.14) applicable to clients with diminished capacity captures the spirit of the ADA and its access to justice requirements. It specifies that when an attorney represents a client with diminished capacity, the lawyer shall, as far as reasonably possible, maintain a normal lawyer-client relationship with the client. This language sets the tone, but proposed Rule 1.4 should be more specific as to what an attorney must due in terms of effective communication with a client who has diminished capacity. Proposed Rule 1.4 is presumably intended to explain what actions a lawyer should and should not take in order to maintain reasonable communications with a client. Unfortunately, it is completely silent about communication responsibilities when the client has cognitive and communication disabilities. That omission should be corrected before the rule is approved by this Court.

2 Unfortunately, Rule of the California Rules of Court does not address this issue properly either. That rule pertains to requests for accommodations by persons with disabilities. While Rule has a laudable policy goal to ensure that persons with disabilities have equal and full access to the judicial system the structure of the rule is premised on a false assumption that everyone with a disability can request an accommodation. That is simply not true for many, if not most, litigants with intellectual, developmental, or other cognitive disabilities. For example, due to the nature of their disabilities, most people who are involuntarily drawn into limited probate conservatorship proceedings would not be able to request an accommodation. The same would be true for many seniors who become the subject of a general probate conservatorship proceeding. Likewise for respondents in mental health conservatorships. For these clients, the duty is on the attorney who represents such a client to develop an effective ADA accommodation plan on the attorney s own motion. No request is required to trigger the mandates of the ADA (or its California equivalent under Government Code Section 11135). Representing clients with cognitive and communication disabilities requires an attorney to acquire the special skills necessary to engage in effective communication with such clients. Merely having a license to practice law does not make an attorney competent to represent a client with a cognitive or communication disability. As Rule of the Rules of Professional Conduct warns, acting with professional competence may require an attorney to acquire sufficient learning and skill before undertaking representation. The enclosed ADA Case Study is an example of a specific case in which an attorney in Los Angeles failed to engage in effective communications with a special needs client. Had the attorney attended a training program on interviewing and communications skills sponsored by the Los Angeles County Bar Association, he still would not have acquired the necessary skills. (See letter to Honorable Maria Stratton, dated February 16, 2015). The Department of Developmental Services reports that 43,000 adults with developmental disabilities are currently under an active order of conservatorship in California. Our research indicates that about 5,000 new cases are filed each year. Add to that the general conservatorship cases for seniors, and the LPS mental health conservatorships, and it becomes clear that the failure of Rule 1.4 to address communications with clients who have cognitive and communications disabilities is a serious omission affecting a large class of disabled litigants. Perhaps it is an issue that the State Bar Commission on Access to Justice should address before this Court approves the proposed amendment to Rule 1.4. Respectfully submitted: Thomas F. Coleman Legal Director, Spectrum Institute tomcoleman@spectruminstitute.org cc: Ms. Vanessa L. Holton, Office of General Counsel Mr. Randall Difuntorum, Office of Professional Competence 180 Howard Street, San Francisco, California Attachments -2-

3 Spectrum Institute is a nonprofit organization with 501c3 tax exempt status. The organization sponsors the two projects listed below. Each project has its own board of consultants. Disability and Abuse Project Nora J. Baladerian, Ph.D. Director Focus Physical, sexual, and emotional abuse of people with developmental or intellectual disabilities Mission To identify ways to reduce the risk of abuse, to promote healing for victims, and to seek justice for those who have been victimized Action Areas Research, education, public policy, law enforcement, professional consulting, and public awareness Disability and Guardianship Project Thomas F. Coleman, J.D. Director Focus Adult guardianships and alternatives for people with intellectual and developmental disabilities Mission To improve guardianship procedures for adults with intellectual and developmental disabilities and to promote viable alternatives Action Areas Research, education, public policy, advocacy networking, equal access to justice, and public awareness

4 Enclosures to Letter to California Supreme Court Re: Case S / Communications with Clients 1. Supreme Court Docket for Amendments to Rules of Professional Conduct Proposed Rule 1.4 Communication with Clients Proposed Rule 1.14 Client with Diminished Capacity Rule California Rules of Court Rule Filing to Act Competently ADA Case Study: Example of ADA Violations in a Limited Conservatorship Case Letter to Hon. Maria Stratton dated Feb. 16, Los Angeles County Bar Association, Trusts and Estates Section: Mandatory PVP Training Program for Limited Conservatorship Proceedings.. 13

5 Appell ate Courts Case Information Supreme Court CALIFORNIA COURTS THE JU D1CI."l BR.4.NCH OF CALIFORNIA ichange court j Court data last updated :51 AM Docket (Register of Actions) AMENDMENTS TO THE RULES OF PROFESSIONAL CONDUCT Case Number Date Descri ption Notes Request for Recommendation requester: Office of the adoption of General Counsel - the State Bar of new rule or California rule Attorney: Vanessa L. Holton Request modification that the Supreme Court of California filed Approve Proposed Amendments to the Rules of Professional Conduct of the State Bar of California, and Memorandum and Supporting Documents in Explanation Exhibit(s) Attachments A through L in support of lodged Request to Approve Proposed Amendments to the Rules of Professional Conduct of the State Bar of California Click here to request automatic notifications about this case. Page 1

6 Rule 1.4 Communication with Clients (Proposed Rule Adopted by the Board on November 17,2016) (a) A lawyer shall: (1) promptly inform the client of any decision or circumstance with respect to which disclosure or the client's informed consent,* is required by these rules or the State Bar Act; (2) reasonably* consult with the client about the means by which to accomplish the client's objectives in the representation; (3) keep the client reasonably* informed about significant developments relating to the representation, including promptly complying with reasonable* requests for information and copies of significant documents when necessary to keep the client so informed; and (4) advise the client about any relevant limitation on the lawyer's conduct when the lawyer knows* that the client expects assistance not permitted by the Rules of Professional Conduct or other law. (b) (c) (d) A lawyer shall explain a matter to the extent reasonably* necessary to permit the client to make informed decisions regarding the representation. A lawyer may delay transmission of information to a client if the lawyer reasonably believes that the client would be likely to react in a way that may cause imminent harm to the client or others. A lawyer's obligation under this rule to provide information and documents is subject to any applicable protective order, non-disclosure agreement, or limitation under statutory or decisional law. Comment [1] A lawyer will not be subject to discipline under paragraph (a)(3) of this rule for failing to communicate insignificant or irrelevant information. (See Bus. & Prof. Code 6068(m).) Whether a particular development is significant will generally depend on the surrounding facts and circumstances. [2] A lawyer may comply with paragraph (a)(3) by providing to the client copies of significant documents by electronic or other means. This rule does not prohibit a lawyer from seeking recovery of the lawyer's expense in any subsequent legal proceeding. [3] Paragraph (c) applies during a representation and does not alter the obligations applicable at termination of a representation (see rule 1.16(e)(1». [4] This rule is not intended to create, augment, diminish, or eliminate any application of the work product rule. The obligation of the lawyer to provide work product to the client shall be governed by relevant statutory and decisional law. Page 2

7 Rule 1.14 Client with Diminished Capacity (Proposed Rule Adopted by the Board on March 9, 2017) (a) (b) Duties Owed Client with Diminished Capacity. 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 lawyer-client relationship with the client. Taking Protective Action on Behalf of a Client With Significantly Diminished Capacity. (1) Except where the lawyer represents a minor, a client in a criminal matter, or a client who is the subject of a conservatorship proceeding or who has a guardian ad litem or other person* legally entitled to act for the client, the lawyer may, but is not required to, take protective action, provided the lawyer has obtained the client's consent as provided in paragraph (c) or (d), and the lawyer reasonably believes*that: (i) (ii) (iii) there is a significant risk that the client will suffer substantial* physical, psychological, or financial harm unless protective action is taken, the client has significantly diminished capacity such that the client is unable to understand and make adequately considered decisions regarding the potential harm, and the client cannot adequately act in the client's own interest. (2) Information relating to the client's diminished capacity is protected by Business and Professions Code 6068(e)(1) and rule 1.6. In taking protective action as authorized by this paragraph, the lawyer must: (i) (ii) act in the client's best interest, and disclose no more information than is reasonably* necessary to protect the client from substantial* physical, psychological, or financial harm, given the information known* to the lawyer at the time of disclosure. (c) Obtaining Consent to Take Protective Action. (1) Before taking protective action as authorized by paragraph (b), a lawyer must take all steps reasonably* necessary to preserve client confidentiality and decision-making authority, which includes: (i) (ii) explaining to the client the need to take protective action, and obtaining the client's consent to take the protective action. (2) In seeking the consent of a client to take protective action under paragraph (b), the lawyer may obtain the assistance of an appropriate person* to assist the Page 3

8 lawyer in communicating with the client. In obtaining such assistance, the lawyer must: (i) (ii) (iii) act in the client's best interest; disclose no more information than is reasonably* necessary to protect the client from substantial* physical, psychological, or financial harm, given the information known* to the lawyer at the time of disclosure; and take all reasonable* steps to ensure that the information disclosed remains confidential. (d) Obtaining Advance Informed Written Consent* to Take Protective Action. A lawyer may obtain a client's advance informed written consent* to take protective action in the event the circumstances set forth in paragraphs (b )(1 )(i) - (iii) should later occur. The advance consent must be in a separate writing* signed by the client and must include the following written* disclosures: (1) the authorization to take protective action is valid only when the lawyer reasonably believes* that the circumstances set forth in (b )(1 )(i) - (iii) are present; and (2) the client retains the right to revoke or modify the advance consent at any time. (e) Restrictions on Lawver's Actions. This rule does not authorize the lawyer to take: (1) any action that is adverse to the client, including the filing of a conservatorship petition or other similar action; (2) any action on behalf of a person* other than the client that the lawyer would not be permitted to take under rule 1.7 or 1.9; or (3) any action that would violate the client's right to due process of law under the United States or California Constitutions, or the California Probate Code. (f) Definitions. For purposes of this rule: (1) "Protective action" means to take action to protect the client's interests by: (i) (ii) notifying an individual or organization that has the ability to take action to protect the client, or seeking to have a guardian ad litem appointed. (9) Discipline. A lawyer who does not take protective action as permitted by paragraph (b) does not violate this rule. rule-diminished-capacity 2 Page 4

9 Comment [1] The purpose of this rule is to allow a lawyer to act competently on behalf of a client with significantly diminished capacity, to further the client's goals in the representation, and to protect the client's interests. [2] A client with significantly diminished capacity, such that the client cannot make adequately considered decisions regarding potential harm, may have the ability to understand, deliberate upon, express preferences concerning, and reach conclusions about matters affecting the client's own well-being, including the ability to provide consent. (See Probe Code 810.) [3] In determining whether a client has significantly diminished capacity such that the client is unable to make adequately considered decisions, a lawyer should consider the factors in Probate Code 811 and 812. A lawyer may also seek information or guidance from an appropriate diagnostician or other qualified medical service provider. In doing so, the lawyer may not reveal client confidential information without the client's authorization or except as otherwise permitted by these rules. See Business and Professions Code 6068(e)(2) and rule 1.6(b). [4] Where it is reasonably* foreseeable that a client may suffer from significantly diminished capacity in the future such that the client will likely be unable to make adequately considered decisions, the lawyer may have an obligation to explain to the client the need to take measures to protect the client's interests, including using voluntary surrogate decision-making tools such as durable powers of attorney and seeking assistance from family members, support groups and professional services with the client's informed written consent. * See rule 1.4. [5] In taking protective action as permitted by paragraph (b), a lawyer may not substitute his or her own judgment in deciding what is in the client's best interest but must abide by the client's expressed interests and decisions concerning the objectives of the representation. Paragraph (b) does not apply if the lawyer is unable to ascertain the client's expressed interests and objectives. [6] In obtaining the assistance of another person* such as a trained professional to assist in communicating with and furthering the interests of the client pursuant to paragraph (c), the lawyer must look to the client, and not the other person,* for authorization to take protective measures on the client's behalf. See Evidence Code 952. The lawyer must advise the person* who assists the lawyer that the person* is not authorized to disclose information protected by Business and Professions Code 6068(e)(1) and rule 1.6 to any third person.* [7] Paragraph (b) does not apply in the case of a client who is (i) a minor, (ii) involved in a criminal matter, (iii) is the subject of a conservatorship; or (iv) has a guardian or other person* legally entitled to act for the client. The rights of such persons* are regulated under other statutory schemes. See Family Code 3150; Penal Code 1368 et seq.; Lanterman-Petris- Short Act, Welfare and Institutions Code Division 5, Part 1, ; Probate Code, Division 4, Parts 1-8, ; and Code of Civil Procedure rule-diminished-capacity 3 Page 5

10 «Previous Rule [Back to Title Index J Next Ru le» Q gg Q, Printer-friendly version of this 2017 California Rules of Court Rule Requests for accommodations by persons with disabilities (a) Definitions As used in this rule: (1) "Persons with disabilities" means individuals covered by California Civil Code section 51 et seq.; the Americans With Disabilities Act of 1990 (42 U.S.C et seq.); or other applicable state and federal laws. This definition includes persons who have a physical or mental impairment that limits one or more of the major life activities, have a record of such an impairment, or are regarded as having such an impairment. (2) "Applicant" means any lawyer, party, witness, juror, or other person with an interest in attending any proceeding before any court of this state. (3) "Accommodations" means actions that result in court services, programs, or activities being readily accessible to and usable by persons with disabilities. Accommodations may include making reasonable modifications in policies, practices, and procedures; furnishing, at no charge, to persons with disabilities, auxiliary aids and services, equipment, devices, materials in alternative formats, readers, or certified interpreters for persons with hearing impairments; relocating services or programs to accessible facilities; or providing services at alternative sites. Although not required where other actions are effective in providing access to court services, programs, or activities, alteration of existing facilities by the responsible entity may be an accommodation. (Subd (a) amended and relettered effective January 1, 2007; adopted as subd (b) effective January 1, 1996; previously amended effective January 1, 2006.) (b) Policy It is the policy of the courts of this state to ensure that persons with disabilities have equal and full access to the judicial system. To ensure access to the courts for persons with disabilities, each superior and appellate court must delegate at least one person to be the ADA coordinator, also known as the access coordinator, or designee to address requests for accommodations. This rule is not intended to impose limitations or to invalidate the remedies, rights, and procedures accorded to persons with disabilities under state or federal law. (Subd (b) adopted effective January 1, 2007.) (c) Process for requesting accommodations The process for requesting accommodations is as follows: Page 6

11 (1) Requests for accommodations under this rule may be presented ex parte on a form approved by the Judicial Council, in another written format, or orally. Requests must be forwarded to the ADA coordinator, also known as the access coordinator, or designee, within the time frame provided in (c)(3). (2) Requests for accommodations must include a description of the accommodation sought, along with a statement of the impairment that necessitates the accommodation. The court, in its discretion, may require the applicant to provide additional information about the impairment. (3) Requests for accommodations must be made as far in advance as possible, and in any event must be made no fewer than 5 court days before the requested implementation date. The court may, in its discretion, waive this requirement. (4) The court must keep confidential all information of the applicant concerning the request for accommodation, unless confidentiality is waived in writing by the applicant or disclosure is required by law. The applicant's identity and confidential information may not be disclosed to the public or to persons other than those involved in the accommodation process. Confidential information includes all medical information pertaining to the applicant, and all oral or written communication from the applicant concerning the request for accommodation. (Subd (c) amended effective January 1, 2007; previously amended effective January 1, 2006.) (d) Permitted communication Communications under this rule must address only the accommodation requested by the applicant and must not address, in any manner, the subject matter or merits of the proceedings before the court. (Subd (d) amended effective January 1, 2006.) (e) Response to accommodation request The court must respond to a request for accommodation as follows: (1) In determining whether to grant an accommodation request or provide an appropriate alternative accommodation, the court must consider, but is not limited by, California Civil Code section 51 et seq., the provisions of the Americans With Disabilities Act of 1990 (42 U.S.C , et seq.), and other applicable state and federal laws. (2) The court must promptly inform the applicant of the determination to grant or deny an accommodation request. If the accommodation request is denied in whole or in part, the response must be in writing. On request of the applicant, the court may also provide an additional response in an alternative format. The response to the applicant must indicate: (A) Whether the request for accommodation is granted or denied, in whole or in part, or an alternative accommodation is granted; (8) If the request for accommodation is denied, in whole or in part, the reason therefor; (C) The nature of any accommodation to be provided; (D) The duration of any accommodation to be provided; and (E) If the response is in writing, the date the response was delivered in person or sent to the applicant. (Subd (e) amended effective January 1,2010; previously amended effective January 1,2006, and January 1,2007.) (I) Denial of accommodation request Page 7

12 A request for accommodation may be denied on ly when the court determines that: (1) The applicant has failed to satisfy the requirements of this rule; (2) The requested accommodation would create an undue financial or administrative burden on the court; or (3) The requested accommodation would fundamentally alter the nature of the service, program, or activity. (Subd (f) amended effective January 1, 2007; previously amended effective January 1, 2006.) (g) Review procedure (1) If the determination to grant or deny a request for accommodation is made by nonjudicial court personnel, an applicant or any participant in the proceeding may submit a written request for review of that determination to the presiding judge or designated judicial officer. The request for review must be submitted within 10 days of the date the response under (e)(2) was delivered in person or sent. (2) If the determination to grant or deny a request for accommodation is made by a presiding judge or another judicial officer, an applicant or any participant in the proceeding may file a petition for a writ of mandate under rules or in the appropriate reviewing court. The petition must be filed within 10 days of the date the response under (e)(2) was delivered in person or sent to the petitioner. For purposes of this rule, only those participants in the proceeding who were notified by th e court of the determination to grant or deny the request for accommodation are considered rea l parties in interest in a writ proceeding. The petition for the writ must be served on the respondent court and any real party in interest as defined in this rule. (3) The confidentiality of all information of the applicant concerning the request for accommodation and review under (g)(1) or (2) must be maintained as required under (c)(4). (Subd (g) amended effective January 1, 2010; previously amended effective January 1, 2006.) (h) Duration of accommodations The accommodation by th e court must be provided for the duration indicated in the response to th e request for accommodation and must remain in effect for the period specified. The court may provide an accommodation for an indefinite period of time, for a limited period of time, or for a particular matter or appearance. (Subd (h) amended effective January 1, 2006.) Rule amended effective January 1, 2010; adopted as rule effective January 1, 1996; previously amended effective January 1, 2006; previously amended and renumbered effective January 1, Advisory Committee Comment Subdivision (g)(2). Which court is the "appropriate reviewing court" under this rule depends on the court in which the accommodation decision is made and the nature of the underlying case. If the acccmmodation decision is made by a superior court judicial officer and the underlying ca se is a limited civil, misdemeanor, or infraction case, the appropriate reviewing court is the appellate divis ion of the superior court. If the accommodation decision is made by a superior cou rt judicial officer and the case is anything other than a limited civil, misdemeanor, or infraction case, such as a fami ly law, unlimited civil, or felony case, the appropriate reviewing court is the Court of Appeal. If the accommodation decision is made by a judicial officer of the Court of Appeal, the appropriate reviewing court is the California Supreme Court. [ Back to Top 1 Page 8

13 Current Rules Rules of Professional Conduct Rule Failing to Act Competently (A) A member shall not intentionally, recklessly, or repeatedly fail to perform legal services with competence. (B) For purposes of this rule, "competence" in any legal service shall mean to apply the 1) diligence, 2) learning and skill, and 3) mental, emotional, and physical ability reasonably necessary for the performance of such service. (C) If a member does not have sufficient learning and skill when the legal service is undertaken, the member may nonetheless perform such services competently by 1) associating with or, where appropriate, professionally consulting another lawyer reasonably believed to be competent, or 2) by acquiring sufficient learning and skill before performance is required. Discussion: The duties set forth in rule include the duty to supervise the work of subordinate attorney and non-attorney employees or agents. (See, e.g., Waysman v. State Bar (1986) 41 Cal.3d 452; Trousil v. State Bar (1985) 38 Cal.3d 337,342 [211 Cal. Rptr. 525]; Palomo v. State Bar (1984) 36 Cal.3d 785 [205 Cal.Rptr. 834]; Crane v. State Bar (1981) 30 Ca1.3d 117, 122; Black v. State Bar (1972) 7 Cal.3d 676,692 [103 Cal.Rptr. 288; 499 P.2d 968]; Vaughn v. State Bar (1972) 6 Ca1.3d 847, [100 Cal.Rptr. 713; 494 P.2d 1257]; Moore v. State Bar (1964) 62 Ca1.2d 74,81 [41 Cal. Rptr. 161; 396 P.2d 577].) In an emergency a lawyer may give advice or assistance in a matter in which the lawyer does not have the skill ordinarily required where referral to or consultation with another lawyer would be impractical. Even in an emergency, however, assistance should be limited to that reasonably necessary in the circumstances. (Amended by order of Supreme Court, operative September 14, 1992.) Page 9

14 ADA Case Study Example of ADA Violations in a Limited Conservatorship Case A petition for limited conservatorship was filed on August 22, The court appointed an attorney to represent the proposed conservatee on September 14, The petition was granted on April 14, The following actions of the court-appointed attorney violated the Americans with Disabilities Act by denying someone with a developmental disability access to justice and depriving him of meaningful participation in the case. 1. No ADA Plan. The attorney failed to develop an ADA plan for the client to determine the best way to have meaningful communications with the client and maximize his participation in the case. 2. No IPP Review. The attorney failed to request an Individual Program Plan (IPP) Review with the regional center and to have a professional appointed to determine the capacities of the client in the seven decision-making areas in question. An IPP review also would have examined if there were lesser restrictive alternatives in any of those seven areas. 3. Home Visit. When the attorney visited the home of his client, the attorney directed his entire conversation with the mother of his client, even though the client was present and even though a communication facilitator was present and available to assist the client in communicating with the attorney. When the attorney left the home, the client asked his mother if the attorney thought he was deaf since he never attempted to speak directly with him. 4. School Visit. When the attorney visited his client at the client s school, the attorney refused to allow the client to use assisted communication technology (facilitated communication). Instead, the attorney used yes/no flash cards and told the client to answer his questions by pointing to one of the cards. Even though the flash card system was failing to produce consistent answers, the attorney refused to change to the client s preferred method of communication. 5. Voting Rights. When the mother asked the attorney if her son could retain the right to vote, since he had indicated a desire to vote, the attorney replied that the retention of voting rights would be inconsistent with the purpose of a conservatorship. The attorney later informed the court that his client was unable to complete an affidavit of voter registration even though the attorney never attempted to have his client fill out such an application, with or without assistance. The attorney was unfamiliar with federal voting rights laws, including ADA accommodation requirements. 6. Violation of Confidentiality. The client signed MC-410, an ADA accommodation request form asking that he be allowed to use facilitated communication in his case, both in and out of court. When the attorney received this form from the client, sent to the attorney by Thomas F. Coleman who the client had asked to help him as a support person, the attorney did not forward the form to the court as required by law. Instead, the attorney sent the form to the attorneys for the other parties. Form MC-410 is a confidential form that is intended as a communication between court personnel and the person making the ADA request. 7. Disloyalty to Client. The attorney filed a report with the court recommending that decision-making authority be taken away from the client in all seven areas in question, including the right to make social decisions. The attorney knew that the client wanted to retain the right to make social decisions. He also knew that the regional center has recommended that the client retain authority over social decisions. Ultimately, when confronted with evidence of his client s capacity to make such decisions, the attorney changed his mind. However, the attorney still recommended that his client be required to have regular Skype visits with his father, despite knowing that his client feared his father, did not want to communicate with him, and his therapist recommended against mandatory communications. Page 10

15 Spectrum Institute Disability and Abuse Project 2100 Sawtelle, #204, Los Angeles, CA (310) February 16, 2015 Honorable Maria Stratton Presiding Judge, Probate Division Los Angeles Superior Court 111 N. Hill Street Los Angeles, CA Dear Judge Stratton: I am writing to inform you of my experience attending a mandatory training for PVP attorneys that was sponsored by the Los Angeles Superior Court and conducted with the assistance of the Los Angeles County Bar Association. When my colleague, Tom Coleman, informed me that the advertised agenda for the training included a presentation by a psychologist on interviewing and communication skills for clients with developmental disabilities, I registered for the event. Although I have done trainings for attorneys and law enforcement officers on this topic for many years, I am always eager to learn what other experts have to say. I had never heard of Dr. Richard Brightman, but since this was a training mandated by the Superior Court, I assumed that he was a subject-matter expert and that he had been properly vetted by the seminar organizer. I was very surprised to learn that there was such a qualified expert since I had never heard of anyone other than myself doing this work in my 37 years of experience. My first clue that something might be wrong was when I looked in the program to read a biographical summary of Dr. Brightman s credentials. What I found were short biographies for speakers at a prior training. Tom Coleman brought this to the attention of the seminar staff. A few minutes later, the correct biographical summaries were distributed. Unfortunately, they did not include any information about Dr. Brightman, or a syllabus or learning objectives for his presentation. When it was Dr. Brightman s turn to speak to the group, I sat up in my chair and was ready to take notes. Unfortunately, what I heard in Dr. Brightman s presentation was absolutely nothing of substance. In fact, I do not remember if he even mentioned the term interviewing skills more than the one time when he said that it was such a big topic it could not be covered in 45 minutes, so he would instead do another presentation. The presentation he did was read from a prepared text in a binder. It was his personal early-career life experience during which he met several people with intellectual and developmental disabilities, and also several psychologists and other practitioners who provide services to them. He was struck with the depth of feelings of the folks with disabilities, and learned that they have the same hopes and dreams as those who do not have disabilities. I found it odd that he had to read text to tell his personal story. He did not relate his story to the topic he was slated to address. Page 11

16 Following this early career experience, he did not indicate ongoing work with people with disabilities. Nor did he, at any time, reference the fact that there are professionals who conduct training programs on this topic for attorneys, law enforcement, protective services and other related professionals, and that there are both books and training videos available for them from the U. S. Department of Justice and CDAA. I produced the two videos under a grant from USDOJ using the wisdom of an advisory group, and this was part of the reason that in 2008 I was selected by DOJ to receive their National Victims Services Award from the Office for Victims of Crime. The videos are available on the NCJRS website, along with training guidebooks. Neither the training host, Jonathan Rosenbloom, nor Judge Michael Levanis, when addressing the audience after Dr. Brightman s talk, apologized to the audience for him not addressing the promised and critical topic, or even acknowledged that the promised information was not delivered. The audience went home with a certificate from LACBA (CLE s) confirming that they had received training in interviewing skills with individuals with intellectual and developmental disabilities. A few days later, I called Dr. Brightman. I wanted to know more about his background, training and expertise that would have caused him to be selected to be the presenter on this topic. Dr. Brightman returned my call. He said that he actually has no expertise in interviewing individuals with developmental disabilities, no training, does not do that type of work and does not conduct trainings on the topic. He did not know of any resources on the topic that he might have shared with the audience. After finishing his studies, he said, he opened a private practice in Westwood where he treats individuals and couples, not including people with intellectual disabilities. He stated that the reason he was selected was likely that he and Jonathan are friends, and that because Dr. Brightman has kids with developmental disabilities, Jonathan probably thought he was a good choice. I did not point out to Dr. Brightman that he should have declined the invitation as he does not have the requisite skills and background as was required by the invitation and would be required by professional ethics. But, he said, it was all very informal and he was doing a favor for Jonathan. I have no quarrel with someone doing a favor for a friend. I do have a quarrel with promising essential training content, then not providing it at all. And, making no apology for it, and not making up for it later. The whole thing was far below any level of quality that I had imagined would be supported by the court and/or the LACBA. I never have in the past attended a training program that they offered. I have personally, however, designed and taught dozens of training programs for attorneys and law enforcement officers and officials in which CLE s were provided, for which the content was delivered. While Dr. Brightman may be a nice man, that is not the qualification training attendees would expect or value. They came in order to learn the skills that are needed in their critical role as legal representative of proposed conservatees. Who are the real losers? The proposed conservatees, whose attorneys have received absolutely no training to understand them and effectively converse with them. I really hope that, with your leadership, the training operations will change. Sincerely, -2- Page 12 Nora J. Baladerian, Ph.D. Executive Director Disability and Abuse Project nora@disability-abuse.com

17 View Cart Member Login 09/13/2014 Mandatory PVP Training Program for Limited Conservatorship Proceedings Presented by Trusts and Estates Section Program Information: This program provides training and education to PVP attorneys representing proposed conservatees in limited conservatorship proceedings. It is the course required by LASC Local Rule 4.124(b)(5) and helps to satisfy the educational requirements set forth in CRC The program will give an overview of the duties of PVP attorneys in limited conservatorship proceedings, with emphasis on voting rights, reasonable accommodations, confidentiality, Probate Code powers, and interviewing and communications skills. SPACE IS LIMITED! Speakers: Steven P. Beltran, Beltran Beltran Smith & Mackenzie LLP Richard Brightman Hon. David J. Cowan, Los Angeles Superior Court Yolande P. Erickson, Bet Tzedek Hon. Michael I. Levanas, Supervising Judge of Probate, Los Angeles Superior Court Julie A. Ocheltree, Enright & Ocheltree, LLP Jonathan L. Rosenbloom, Rosenbloom Law Firm Melinda Sullivan, Frank D. Lanterman Regional Center Location: Los Angeles County Bar Association, 1055 West 7th Street, 27th Floor, Los Angeles Parking: $9.00 all day when you enter before 9:00am. After 9:00am, $10 for first 4 hours. $2.00 each additional 15 minutes Times: Registration: 8:30-9:00am Meal/Reception: 8:30-9:00am Program: 9:00am - 12:15pm CLE Credits: 3 General CLE Credit, including Estate Planning, Trust & Probate Law Legal Specialization Credit Categories: Family Law Trusts and Estates Page 13