Sample Chapter
* NOTE: The following is a sample excerpt from Chapter 13:
The Counterinsurgency in Legal Counseling: Preparing Attorneys to Defend Veterans Against Themselves in Criminal Cases
Major Evan Seamore
Chief of Military Justice for the U.S. Army Maneuver Center of Excellence
Fort Benning, GA
I. Introduction: The Need for an Enhanced Therapeutic Approach in Legal Counseling for Combat Veterans
Veterans who require criminal defenders often fight a war within, traumatized by visible or unseen injuries—or both, they may be physically home but mentally deployed, expecting enemy contact with each backfire of a muffler or an ambush waiting in the shadows of a nearby alley.[i] Those attorneys who undertake legal representation of veterans often enlist in the ongoing fight, not only to safeguard the client’s constitutional rights, but, more importantly, to defend the client against himself or herself. The words of former Marine Sergeant Clint Van Winkle, as he sat in the Veterans’ Administration office waiting for treatment of his Posttraumatic Stress Disorder (PTSD), cannot but echo in the waiting rooms of public defenders and criminal law offices:
My thoughts drifted in and out of the present, jumped between various places and events. I was at the VA hospital, but also in a Virginia Beach hotel room my first night home, and somewhere in Iraq. Just another day of time travel. I told myself to concentrate, think about the present, live.
Don’t look for a meaning in all of the madness. But there was no subduing it: The past wanted the present.[ii]
While it is true that most clients come to attorneys when they are in crisis, transforming criminal law counseling into a very real form of crisis-response,[iii] the legal process does not have the same magnitude on every client. To veterans who suffer from PTSD, Traumatic Brain Injury (TBI)—“signatures” of the recent wars in Iraq and Afghanistan[iv]—the additional trauma of criminal litigation can be deadly.[v] These veterans are already prone to defense mechanisms that overestimate the nature of a problem and view it in terms of absolutes.[vi] To them, arrest, charges, sanity determinations, court appearances, presentation of evidence, sentencing proceedings, and all aspects of a criminal case can, in effect, set off a chain reaction of mental and physiological consequences that exacerbate the symptoms of existing disorders.[vii] In the field of therapeutic jurisprudence, which recognizes the attorney’s ability to improve the psychological well-being of the client, these areas are all recognized as “psycholegal soft-spots,”[viii] each of which can be mitigated with some degree of prior planning on the part of attorneys and their clients.
Clinical psychologists Larry Cohen and Joyce Vesper label additional stress brought on by legal proceedings as “forensic stress disorder” to highlight the independent influences of the legal process on any client’s fragile psyche.[ix] As Professor Bruce Winick notes, “[l]itigation may provoke such strong anger and resentment that wounds will never heal and [a] relationship may be permanently severed. A typical lawsuit will provoke fear and anxiety that may be debilitating and sometimes a form of depression.”[x] In the case of veterans with service-connected mental conditions, as symptoms combine, the criminal attorney is inescapably along for the journey, functioning just like a squad member on patrol through the bombed and burning villages in the recesses of the client’s mind.
Counterinsurgency (COIN) describes the military’s approach to the unconventional enemies in Iraq and Afghanistan who slip within populations of civilians and attack using roadside bombs.[xi] The lawyer’s battle in the office and at counsel table is equally a COIN fight, against the client’s self—the most unconventional of enemies.[xii] While the attorney’s rucksack must surely contain legal reporters and statutory supplements, she must take the point with a moral compass, assessing the most likely points of ambush (forensic stress) and steering the client on a safe azimuth by using effective counseling and equally effective collaboration with mental health professionals. At the most basic level, criminal defenders who represent veterans must be prepared to adopt a proactive counseling role to divert the client from self-harm far more aggressively than in standard cases.[xiii]
In counseling traumatized veteran clients on legal matters, the attorney should always be alert for signs of self-destruction and positioned to respond. The attorney should explore how the client is influenced by facts or theories and know how to counteract degrading influences. This aggressive legal counseling orientation is extremely intimidating to attorneys based on 1) the legal profession’s typical lack of training in psychological influences on client behavior during the client counseling process, 2) attorneys’ fears of harming a client, and 3) general fears of malpractice or professional liability for practicing psychology without a license.[xiv] Most attorneys are satisfied assigning responsibility for the emotional impact of the law elsewhere, sometimes recommending referral to an assumedly qualified mental health provider, and often doing nothing at all.[xv] In a backwards way, these views of legal professionalism translate to an abdication of the attorney’s counseling function.[xvi] Given the worries that prevail throughout the defense bar, Part II discusses the ethical principles underlying the enhanced therapeutic approach for counseling combat veterans and proposes a method to identify professional boundaries.
Part III explores the attorney’s relationship with trained mental health professionals and describes effective, as opposed to ineffective, attorney-therapist collaboration. Here it is crucial to expose several flawed assumptions that explain attorney nonintervention. The reality that not all clients seek therapy when recommended, and that others often discontinue treatment for mental health conditions, places more responsibility on defense counsel to mitigate the psychological harm imposed by litigation. Part IV, therefore, develops the framework for attorney-based intervention. This Part introduces the concept of “psychological first aid” as a useful framework because it remains an area where mental health professionals recognize that even lay persons have significant capacities and responsibilities to take basic steps in preventing enduring psychological damage.
During the course of representing combat veterans, attorneys may be overcome with raw emotions. Therapists, like Gail Olson, speak of these daunting challenges: “Like the veterans, there are times when I can only observe while others’ lives are destroyed, lacking power to change things. Working with veterans forced me to face my sorrow and was a continual reminder of my feeble humanity, my limits, and the fragility of life.”[xvii] While each attorney may respond to this raw material differently based on individual experiences, none are immune to their own subconscious reactions. For this reason, Part V discusses legal countertransference, identifying methods to anticipate and moderate the attorney’s reactions to information related by the veteran client.
II. Dimensions of Enhanced Client-Counseling for Combat Veterans
One of the most uncomfortable discussions in the practice of law involves the extent of required counseling in legal representation. Most attorneys condemn the idea of the lawyer as a “psychologist” and revolt even at the modest suggestion that lawyers may sometimes engage in forms of “social work.”[xviii] While professional conduct rules are extremely permissive,[xix] there is a general perception that attorneys should be conscious of boundaries between clinical and legal counseling. The only problem with this restrictive interpretation is the absence of any guidelines defining these very boundaries.[xx] Too often, the attorney imposes needless and overly-restrictive limits in response to valid concerns.
Most attorneys label themselves nonprofessionals in mental health, voicing grave concerns for causing potential harm to a client if they step only a foot from the lane of substantive legal analysis. On closer examination, these barriers are largely artificial. Criminal attorneys, more than any other type, are counselors at law. Aside from the titles on their bar certificates, their professional responsibilities are far more extensive than that of a psychologist. Attorneys, unlike many therapists, cannot adopt nonjudgmental roles in client-counseling. They often must coerce and bully clients into considering legal alternatives. Most importantly, they must deal with client trauma as it unfolds during trial or in the aftermath of bad news, without the benefit of time for the client to process and consider events before consultation.[xxi]
The erection of artificial barriers by attorneys is not without consequence for veteran clients. In their aims to avert harm by refusing to respond to crisis, these lawyers only increase it among a client population at a high risk of suicide and more susceptible to forensic stress.[xxii] David Switzer, a pastoral counselor, aptly explains that issues of competence to address a client’s emotional problems and the limits of a nonclinician “have usually been portrayed as a warning.”[xxiii] However, this is “not the whole story”; we overlook the “equally important” fact that “there’s a certain space within that boundary mark.”[xxiv]
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The paradox of harm aversion is that, in over-cautious attempts to protect the client, the attorney becomes blinded to the very signals that would indicate suicide risks and positions that are harmful to the client’s legal interests. |
Too often, the attorney encourages a muffled, suppressed dialogue with the client by holding out the law office as an inappropriate place to address feelings and emotions.[xxv]
Truth be told, the general notion that attorneys should not—and do not—use psychological methods is a fictional concept, entirely detached from the reality of legal practice. Family lawyers— especially those representing vindictive and irrational clients—regularly use clinical counseling techniques.[xxvi] But criminal defense attorneys use them more frequently. Even for clients who are not suffering from mental illnesses, defense attorneys have a duty to confront all clients’ denial. In discussing “unrealistic expectations,” “emotional reactions,” and “psychological barriers to the client’s consider[ation of] alternative possibilities,” Professor Bruce Winick explains that “the lawyer must attempt to dispel [misconceptions] and provide the client with a new sense of reality.”[xxvii]
As a component of nearly every defense counsel’s repertoire, the technique of asking a client to view evidence from a hypothetical jury’s perspective[xxviii] is a form of necessary “cognitive restructuring.”[xxix] Along with several other counseling techniques, it is unabashedly and unashamedly a way to identify obstructions in the client’s mental and perceptual frames. Here, the defense attorney sets goals that are indistinguishable from the licensed clinicians who use cognitive therapy techniques.[xxx]
Cognitive restructuring, as a staple of effective legal representation, however, is not purely the practice of psychology, even though it adopts psychological methods. This is still, and foremost, the practice of law. As I have explored elsewhere, state psychology licensing boards have long confronted the issue of lawyers’ inevitable “overlap” with clinical practice. For a simple reason, the great majority of jurisdictions permit attorneys to use psychological techniques without an additional psychology licensing requirement:[xxxi]
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Although the lawyer’s counseling is partly psychological, such characteristics are limited to that which is necessary for effective legal advice and representation. |
This point echoes most clearly in the joint efforts of the American Bar Association and the American Psychological Association to assist attorneys faced with the assessment of elderly clients for diminished capacity. Their handbook distinguishes between a permissible legal assessment and a prohibited clinical one, justifying the use of psychological tools for legal purposes when they enhance the attorney’s effectiveness as a lawyer.[xxxii] The same is true of assisting combat veteran clients.
Limits on the Attorney’s Counseling Role
Although professional rules provide a wide berth for attorney counseling techniques, companion rules require competence in their application.[xxxiii] Defense attorneys who counsel clients suffering from PTSD are largely failing to meet their professional obligations by denying the critical role of trauma de-escalation in their counseling practice. “Teachers, doctors, lawyers, and other [professionals], must respond when [an] emergency explodes, whether they are prepared to do so or not.”[xxxiv] Like most nonpsychologist professional counselors, attorneys often, by default, engage in counseling with a sense of ambivalence, suspecting that their innate reactions to client crises will somehow always result in success. There are reasons to doubt attorneys’ uncritical and uneducated “gut reactions.”[xxxv] As Switzer further highlights,
There are numerous expressions, often with high emotional intensity, of people under duress (panic-stricken, furious, depressed, suicidal, etc.) which are difficult enough for a well-trained and experienced person to respond to in highly facilitative ways. All of us have found ourselves at a loss of words at times. Unfortunately, in those moments, we may attempt to force something out in order to break the silence and take care of our own anxiety. Therefore, it’s only by sheer coincidence that we come up with something which also speaks effectively to the needs of the [client] at this moment.[xxxvi]
Here, what a defense attorney “may do naturally or intuitively may simply miss or even reject the [client’s] most immediate needs.”[xxxvii] As another dimension of the harm aversion paradox, attorneys, through their avoidance of therapeutic measures, increase potential harm to the client by responding from an instinctual, rather than a planned, basis.[xxxviii]
The deployment of rudimentary psychological techniques to challenge defective thoughts and reduce stress reactions does not transform an attorney into a clinician:
Lawyers need not become psychologists or social workers in order to practice law affectively or effectively, any more than a medical malpractice lawyer must go to medical school. But just as the lawyer needs to acquire sufficient knowledge about the human body, disease, and medicine in order to effectively represent his clients, all lawyers need to know enough about the operation of emotions and the psyche in order to appreciate the ways in which these forces may enhance or impede their work.[xxxix]
Yet, there is a line in the sand:
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Defense attorneys should not help the client find meaning in combat experiences or life events, or aim for the client’s personal or spiritual transformation. |
Activities that focus on the client’s universal wellbeing, but without regard to the law, detract from the attorney-client relationship, set improper expectations, and are better suited for clinicians; they otherwise mislead clients into believing that the attorney is a healer of all wounds.[xl] Instead of therapy and behavior modification for long-term life adjustment, the attorney’s role in proactive therapeutic counseling is to help the client deal with the immediate impact of litigation and minimize the impact of forensic stress and the triggers that can aggravate the underlying disorder. In line with these objectives, attorneys should use methods to enhance the effectiveness of their legal counseling. When absence of intervention will harm the client’s legal interests, the attorney must act, either by personally using methods, or ensuring that the client will be able to obtain this assistance elsewhere. The following sections will address considerations for effective collaboration with other professionals and attorney-based techniques, in turn.
Endnotes:
[i] See, e.g., Gail A. Olson & Michael J. Robbins, Scars and Stripes: Healing the Wounds of War 4 (1992):
The truth, for [many] veterans, is that war isn’t over when the veteran returns home. The bombing may have stopped, but the memories haven’t. As with all memories, it’s necessary to put them in some meaningful psychic order. Ignoring them, evading them, or pretending they don’t exist is a lie that, eventually, the body rejects.
[ii] Clint Van Winkle, Soft Spots: A Marine’s Memoir of Combat and Post-Traumatic Stress Disorder 27 (2009).
[iii] See, e.g., Joseph G. Allegretti, The Lawyer’s Calling: Christian Faith and Legal Practice 108 (1996) (“Clients usually come to lawyers because of some serious problems they are encountering. They are confused and troubled.”); Burl E. Gilliand & Richard K. James, Crisis Intervention Strategies, at v (2d. ed. 1993) (“Practically all counseling is initiated as crisis intervention.”).
[iv] Hillary S. Burke et al., A New Disability for Rehabilitation Counselors: Iraq War Veterans with Traumatic Brain Injury and Post-Traumatic Stress Disorder, 75 J. Rehabilitation 1, 1 (2009) (“TBI and PTSD are commonly referred to as the ‘signature injuries’ of military personnel serving in the Iraq war.”).
[v] Evan R. Seamone, Attorneys as First-Responders: Recognizing the Destructive Nature of Posttraumatic Stress Disorder on the Combat Veteran’s Legal Decision-Making Process, 202 Mil. L. Rev. 144, 150–51 (2009).
[vi] See infra Part IV.D (providing a list of 14 common cognitive distortions).
[vii] Law enforcement agencies have recognized this fact, sometimes assigning veterans on calls responding to emergencies in an effort to mitigate the effects of these chain reactions and obtain mental treatment for the veteran offender at the earliest possible stage. See, e.g., Penny Coleman, Why Are We Locking Up Traumatized Veterans for Their Addictions Instead of Offering Them Treatment?, www.alternet.org, Nov. 11, 2009, http://www.alternet.org/world/143867/why_are_we_locking_up_traumatized_veterans_for_ their_addictions_instead_of_offering_them_treatment (describing experimental programs in Chicago and Los Angeles involving “veterans who are specifically trained to ride along with police when they get disturbance calls”).
[viii] See Evan R. Seamone, The Veterans’ Lawyer as Counselor: Using Therapeutic Jurisprudence to Enhance Client Counseling for Combat Veterans with Posttraumatic Stress Disorder, 202 Mil. L. Rev. 185, 191 (2009) (“A ‘psycholegal soft spot’ is any phase or issue in the legal process that could subject a client to stress or tension.”).
[ix] Larry Cohen & Joyce H. Vesper, Forensic Stress Disorder, 25 L. & Psychol. Rev. 1, 2 (2001).
[x] Bruce J. Winick, Overcoming Psychological Barriers to Settlement: Challenges for the TJ Lawyer, in The Affective Assistance of Counsel: Practicing Law as a Healing Profession 341, 343 (Marjorie A. Siver ed., 2007).
[xi] See U.S. Dep’t of Army, Field Manual 3-24.2, Tactics in Counterinsurgency 1-6 (Apr. 2009) (observing that “COIN operations, by nature involve a confusing enemy situation, since the enemy generally lacks a traditional task organization”).
[xii] The war vernacular has elsewhere been used to describe efforts to aid returning veterans, such as the concept of “Shinseki’s Surge” as a summary of the VA Administrator’s current efforts to combat veteran homelessness and other common problems. See, e.g., Carol Wild Scott, Shinseki’s Surge: Can it Work?, Fed. Law., July 2010, at 30, 30 (characterizing the VA’s efforts as a “surge” and comparing them to the efforts of General David Petraeus in Iraq and Afghanistan). However, here, we speak of tactics in the legal counseling and representation of clients.
[xiii] Seamone, supra note 8, at 195–96 (describing contours of the attorney’s enhanced counseling function).
[xiv] Id. at 192–93.
[xv] Carol M. Suzuki, When Something is Not Quite Right: Considerations for Advising a Client to Seek Mental Health Treatment, 6 Hastings Race & Poverty L.J. 208, 217 (2009) (“Some lawyers are resistant to considering psychological needs of a client when providing legal counseling, believing that mental health referral is ‘social work’ that is not appropriate for lawyers.”).
[xvi] Infra Part II (discussing the paradox of harm aversion in legal counseling for many veterans).
[xvii] Olson & Robbins, supra note 1, at ix.
[xviii] Jane Aiken & Stephen Wizner, Law As Social Work, 11 Wash. U. J. L. & Pol’y 63, 81 (2003) (“[L]awyers often make efforts to distinguish themselves from social workers, and, in effect, will say, ‘I’m not a social worker.’”).
[xix] Model Rules of Prof’l Conduct R. 2.1 (2009) [hereinafter ABA Model Rules] (permitting legal counseling on considerations besides solely the law, including “moral, economic, social, and political factors”). See also Bruce A. Green, The Role of Professional Values in Professional Decisionmaking, 11 Geo. J. Legal Ethics 19, 48 (1998) (noting the “considerable room for client counseling [that even] gives expression to the lawyer’s moral and religious beliefs”).
[xx] Suzuki, supra note 15, at 213 (“[L]awyers have no specific guidance on what to say to the client with a mental health problem about seeking its resolution.”); Susan Bandes, Repression and Denial in Criminal Lawyering, 9 Buff. Crim. L. Rev. 339, 342 (2006) (“There may be no other profession whose practicioners are required to deal with so much pain with so little support and guidance [as law].”).
[xxi] Seamone, supra note 8, at 197–201.
[xxii] See, e.g., Arthur Freeman & Mark Reinecke, Cognitive Therapy of Suicidal Behavior: A Manual for Treatment 177 (1993) (“Combat veterans suffering from PTSD constitute a . . . group that is at increased risk for depression, suicidal thoughts, and self-destructive behavior.” ); Seamone, supra note 5, at 149–50 (“[A]ttorneys who fail to acknowledge the client’s PTSD symptoms or counter the effects of stress responses can cause harm beyond their clients’ legal cause. Chief among other potential harms, the compounded stress of litigation alone can increase the risk of suicidal behavior.”).
[xxiii] David K. Switzer, Pastoral Care Emergencies 17 (2000).
[xxiv] Id.
[xxv] Id.
[xxvi] See generally Sanford M. Portnoy, The Family Lawyer’s Guide to Building Successful Client Relationships 68–71 (2000).
[xxvii] Winick, supra note 10, at 341, 347.
[xxviii] See, e.g., Albert W. Alschuler, The Defense Attorney’s Role in Plea Bargaining, 84 Yale L.J. 1179, 1309 (1975) (explaining how defense attorneys have a “duty to emphasize the harsh terms the force of the prosecution’s evidence: . . . How the hell would you vote if you were a juror in your case?”).
[xxix] Stephanos Bibas, Using Plea Procedures to Combat Denial and Minimization, in Judging in a Therapeutic Key: Therapeutic Jurisprudence and the Courts 165, 174 (Bruce J. Winick & David B. Wexler eds., 2003) (observing the defense counsel’s indisputable function of “cognitive restructuring by confronting their clients with the incriminating evidence”). Professor Winick acknowledges that the lawyer’s reality reorienting role has psychological foundations: “This can be seen as a task not unlike cognitive restructuring, a therapeutic approach used by clinicians in dealing with a variety of problems that bring their patients to the office.” Winick, supra note 10, at 341, 347.
[xxx] See, e.g., Julia M. Whealin et al., Clinician’s Guide to Treating Stress After War: Education and Coping Interventions for Veterans 13 (2008) (“The primary goal of many cognitive approaches can be viewed as assisting individuals to formulate thoughts and beliefs that are typically more realistic and adaptive, and by addressing a broad range of maladaptive thinking patterns.”).
[xxxi] After reviewing the positions in multiple jurisdictions in the great majority of states, these boards exempt or except licensed members of professions like law from licensing requirements. Importantly, at least ten states, including California, Texas, and New York, have explicitly identify attorneys as persons who require no psychology license to use psychological techniques. Given the wide birth of Model Rule 2.1 and the conclusions of most state boards, there is no issue about whether attorneys have the ability to do what they are already doing. Seamone, supra note 8, at 202–06.
[xxxii] ABA Comm. on L. & Aging & Am. Psychological Assn., Assessment of Older Adults with Diminished Capacity: A Handbook for Lawyers 9 (2005).
[xxxiii] See, e.g., Seamone, supra note 8, at 197 (highlighting how the lawyer’s ethical field is still populated by the requirements of competence, communication, client self-determination, and other requirements applicable to any and all legal counseling).
[xxxiv] Eugene Kennedy, Crisis Counseling: The Essential Guide for Nonprofessional Counselors, at xi (1981) (emphasis added).
[xxxv] Susan L. Brooks, Using Social Work Constructs in the Practice of Law, in The Affective Assistance of Counsel: Practicing Law as a Healing Profession 53, 54 (Marjorie A. Siver ed., 2007) (“Most experienced lawyers have developed their own strategies for dealing with [clients in crisis]. But if they are honest, they simply follow their gut feelings.”).
[xxxvi] Switzer, supra note 23, at 17.
[xxxvii] Id.
[xxxviii] Id. at 21, 121–21 (describing the likelihood of missing important danger signals in the suppression of the client’s expression).
[xxxix] Marjorie A. Silver, Emotional Competence and the Lawyer’s Journey, in The Affective Assistance of Counsel: Practicing Law as a Healing Profession 5, 5–6 (Marjorie A. Silver ed., 2007). See also Robin Wellford Slocum, The Dilemma of the Vengeful Client: A Prescriptive Framework for Cooling the Flames of Anger, 92 Marq. L. Rev. 481, 512 (2009) (“Just as a corporate lawyer who advises a client about the tax consequences of a proposed business decision may not be a substitute for an accountant, so too, the lawyer who helps a client reduce the level of anger and frustration that is driving his decisions is not a substitute for a mental health professional.”).
[xl] See, e.g., Portnoy, supra note 26, at 58 (distinguishing problems that arise when the attorney’s counseling function goes beyond addressing the client’s litigation-based “affective needs” to “having a primary objective of helping the client deal with his feelings and personal problems.”). Defense attorneys often experience such role confusion when clients regularly visit their offices unannounced, merely to gain a sense of security or talk about life in general without any connection to the law. The problem is most evident when, despite the attorney’s courteous requests, the client refuses to leave.
THIS ENDS THE SAMPLE EXCERPT FROM CHAPTER 13
