What Are an Attorney's Obligations When a Client Has Had a Brain Injury?

Question: 

What are an attorney’s obligations when a client is not able to fully understand his options? In this situation, the attorney is pushing for settlement of a workers’ compensation claim, which we feel is not in the client’s best interest. It’s hard because the client doesn’t understand what he doesn’t understand.

Answer: 

In New York State, as in most states, ethical rules govern the conduct of attorneys. These rules regulate the attorney-client relationship and impose considerable obligations upon attorneys and provide for significant rights for clients.

Generally, the rights of clients are codified in some form. In New York, the following statement is contained within the client’s bill of rights: “You are entitled to an attorney capable of handling your legal matter competently and diligently, in accordance with the highest standards of the profession. If you are not satisfied with how your matter is being handled, you have the right to withdraw from the attorney-client relationship at any time (court approval may be required in some matters and your attorney may have a claim against you for the value of services rendered to you up to the point of discharge).” The client’s bill of rights further specifies: “You are entitled to have your legitimate objectives respected by your attorney; including whether or not to settle your matter (court approval of a settlement is required in some matters).”

Workers compensation matters are generally governed by specific rules promulgated by each state and set forth in each state’s workers compensation law. These cases are generally processed in specific tribunals set up solely for the purpose of adjudicating workers compensation matters.

Attorneys should not agree to represent a client in matters in which they do not have adequate expertise. In workers compensation cases involving claims of a traumatic brain injury, this requires that the attorney must first be well versed in the specific rules relating to issues involving workers compensation and appearances before the workers compensation board, but further necessitates that he or she must also have knowledge in the area of traumatic brain injury.

If an individual does not believe that his attorney is properly representing his best interests, or if a client no longer trusts or has confidence in his legal representative, then it is time to retain a new lawyer. A client always has the right to change attorneys and may do so at any time.

Before clients agree to settle any case, the terms of the settlement must be disclosed and explained in full to them. If the client does not understand the terms of the settlement, he has a right to ask questions and gain a full appreciation of the settlement’s ramifications before it is accepted. Frequently, settlements are reached in court or at the workers compensation board at which the litigant must appear before a Judge to formally accept the terms of the settlement. During this proceeding, it is important for the client to inform the Judge if he is not satisfied with his legal representation. Further, clients should inform the judge if they do not understand the terms of the settlement, do not want to settle their case, or believe that they are being improperly coerced into a settlement. Unfortunately, if they do not speak up at this juncture or pose any questions, the court will assume that they understand the terms of the settlement and are satisfied, and it may be impossible to invalidate the settlement at a later time.

One of the best ways to assure that an individual receives proper legal representation is to choose a brain injury lawyer with care. Family members can assist an individual in this process by accompanying the individual when he or she interviews a potential attorney and by screening an attorney in regard to his or her knowledge, education and experience in this area of litigation.

Since the results of your law suit will have important and long term impact upon the quality of your life, it is important to determine who the best lawyer is for your brain injury case.

  • Here are some questions to ask any attorney who you are considering retaining in a brain injury case:
  • How many cases, similar to mine, have you been involved with as the principal attorney over the past three years?
  • What percentage of your practice is devoted to representing persons with a traumatic brain injury?
  • Will you be handling my case personally or will you be referring it to another lawyer or law firm?
  • What have been your results in representing persons with cases similar to mine?
  • Have you written and published any articles on traumatic brain injury?
  • Have you lectured to any bar associations, brain injury associations or other groups about the effective legal representation of persons with traumatic brain injury?
  • Do you actively participate in your state’s brain injury association?
  • Do you regularly attend conferences and read textbooks and articles about traumatic brain injury?
  • Have you ever received any professional honors and awards concerning your representation of persons with a brain injury?

The ability of family members or close friends to intervene on behalf of an individual they believe is not receiving adequate legal representation is extremely limited since this third party is not part of the legal relationship between attorney and client and does not have “legal standing” in the eyes of the law. However, if it can be shown to a Court that the individual is not capable of making an informed decision and cannot adequately protect his or her rights, then proceedings may be instituted and a court order can be sought for the appointment of a legal guardian. The court appointed legal guardian can then substitute his or her judgment in place of the impaired individual, as to matters regarding the lawsuit.

A more practical approach is for a family member to speak candidly with the injured person and discuss the need to obtain a written “power of attorney” from the injured individual. Such “power” will allow the designated person the legal right to substitute his or her judgment on the other’s behalf. In order for this “power of attorney” to be legally valid, it must be shown that the individual who executes the document has the ability to make an informed decision. It cannot be entered into by an individual who lacks the mental capacity to understand the nature and effect of this legal instrument. Each State has very strict rules as to how this document must be executed, the language that must be used, how it is to be witnessed, and specifically, the powers that may be shared.

 

Posted on BrainLine December 16, 2010. Reviewed March 20, 2018.

Shana De Caro

Shana De Caro, Esq. is partner at De Caro & Kaplen, LLP. Ms. De Caro serves on the board of directors for both the Brain Injury Association of America and the New York Academy of Trial Lawyers. She is first vice president of the American Academy of Brain Injury Attorneys and serves as secretary of the Civil Justice Foundation.

Comments (11)

I have a brain injury from a car accident 4 Years ago, I also have many cervical surgeries and Hip surgery. My neurologist ordered a brain MRI and there was some white matter problems, but he didn’t do anything to treat me or help me. Now I can’t get a hold of him, and my attorney is not pursuing my brain injury now because we can’t get a hold of my neurologist concerning that. My trial is less than a month, and I don’t know what to do!

Greetings! Can anyone on here suggest resources that would help me in Maryland?

Wow. My injuries happened in the NM oilfield 26 months ago. It was 19-1/2 hours into a 22-1/2 hour work day. I know, an people think there is no longer slavery.

I find it simply amazing just how openly dishonest the insurance companies attorney's are allowed to be, and without consequences from the courts. So much so that when I read about a particular violation that the opposing WC attorney was clearly guilty of and that there was a mandatory $5k fine. I brought it to my attorney's attention and he said; I have only seen that enforced twice in 35 years and the last time was over ten years ago.

An this is the guy who only oh too often tries to remind me that he is the only one trying to do any good for me. I suppose Doctor Kevorkian had a similar view of the services he provided.

So this "Attorney" has advised me that if tomorrow's settlement conference do not end with my satisfaction, he is done with my case. Well considering that in less then three hours of negotiating he got us from 40k under my highest number and now sitting at what I told him would be my lowest number, I can only hope that he shows up prepared to hand over the documents to the case.

This guy has seen my family almost loose our home, have to sell my truck to cover the property taxes. Go through a winter without firewood which is our only form of heat. All during a period of time that he is boastfully able to share the fact, in court that as my representative, for well over a year, he has not yet had to spend a dime on discovery.

In layman's terms that means he has not spent any monies collecting records or obtaining interviews or doing anything to enable him to take a offensive position on my behalf. I have to assume that he believes the world is flat and people go to court to play fair.

I am a TBI survivor, as well as a paralegal. I would like to also suggest looking into Avvo.com to verify attorneys, and don't use attorneys who advertise too much. In the law field, (IMO), that's sneezy. Especially the Personal Injury attorneus.

My God, your comments I read are very very similar to what I have and continue to go through. Even doing w/o pellets & firewood.

I was re-injured, on 1/2017, as I suffer from a TBI, PTSD, Nephropathy in left foot @ a Casino on Indian land when a drunk man fell on top of me & my service dog. Almost all the lawyers I've contacted tell me to look up the State bar for referral.....SEEM"S  They just want easy-lay-down cases. I also.. feel like I've been actively discriminated
wish I could find an aggressive attorney.

 

Very informative blog with helpful information. I like to read your every blog to get needed information.

Jan M. Weinberg

Need malpractice attorney around Lancaster, pa

The lawyer is guided by the legal system, which is flawed, severely. Best practices standards should  require special standards when representing brain injured and especially at the point  the attorney's interests conflict  the client's,  e.g. when executing the retainer. Witnesses signatures on every page and  at every significant paragraph at a minimum. Monitoring progress throughout the case, too.

Dear lonely I hope you are doing better. You are not alone in your pain . I fell down a flight of stairs while working as a sales rep, I have just about every injury u do, add a torn labrum and bicep tendon. I was placed on workers comp I hired a lawyer before knew anything was wrong with my brain. The insurance company for Wc was A.I.G . The things that happen to me no one could dream up. Just to name a few , The WC lawyer lied to me. Told me I had to settle said my benifits where running out! Month prior had a Nerophyc eval . Stated there was damage. No dr would released me. I asked about head and surgiery lawyer told me there was no PROOF I HIT MY HEAD. But liability was excepted so I was set for life . Gets better.. 2004 /06! After settmemt no contact or return calls from WC lawyer ! One letter saying he checked into a third party action and there was not a case O7 trying to get on with my life still trying to get approvals for medical treatments need surgery took a summer course . Get a letter from AIG copy Cc to Wc lawyer saying I have to go to see the insurance company doc. Wc lawyer won't return call. I go to dr. I hire different attorney. All want is AiG to do is pay me back and approve my treatments that we agree to in court, .. This firm discovered that not only wAs there a third party. From the home fall. But that i didn't fall down a flight of stairs. I walked off a ledge in the hallway fell into the stairwell then down a of stair. The lump sum settlement Agreement i signed and to what terms I agree to .. Wasn't the one I agree to Court .,HAD BEEN altered By both Wc lawyer and AIG. AIG CHANGED TO NO LIABLIY FOR HEAD INJURY !! Well the firm had already filed suit against the homeowners! And the only good thing about that was ! At least I know how I fell! That law firm along with the Wc lawyer lost that case for me . Dismissed at summary judgement . I won't even get into that. Except for the ingonance of the TBI in the Courts today, one reason because I couldn't Recall what the stairs looked like/what step / ect that I began my fall'. Theres more is more I appealed the motion and lost. All way up. The appeals attorney as soon as they got the answer back . They handed my case to a legal malpractice attorney . Obviously these lawyers found mounds of violations done to me by My Wc lawyer and 93a violations against AIG INSURANCE COMPANY! The worst is I've still no help. No surgery had 2008 Nero eval. Taken with no pain medication . Results a improved very little or none . 3weeks ago . I was told that AIG and the Wc filed a motion to dismiss on statue of limitation and motion for summary judgment. They claim that we'll many things. But one is I'm faking,;I AS SOON AS I WALKED IN MY LAWYER ASKED IF I EVER SAW THE RESULTS OF THE AIG IME DOC visit in Sept 12 2007! I had not . No one had. My lawyer found then in there boxes of files ! I couldn't believe what I was reading " within 100 % reasonable medical certainty the injury to mrs ---/ brain injury as well as her labrum tears are a direct cause of her work related accident 10/14/07" I would not at this time realease her to a 2year college.. since it 3 post accident I and there has been no treatment I would say her prognosis is guarded "....... This from their own doctor. I pray they do not win these motions ! AIG was a government bailout they misrepresented and misused the money and got ..pick you lawyers wisely oh I have a copy of the original lump sum agreement I signed . I took my copy home :)god bless maybe you can Appeal
I got hit by a tractor trailer truck. I am brain injured and have back surgery knee and leg surgery. My attorney strung my case along for 5 year. Then the court allowed her to withdraw from the case. No other lawyer in the town would help me. Guess what? Mind you I am brain injured. I had to do my court case alone. I understood nothing. They said I caused the accident. Trans am trucking company gave me $0. I got treated like dirt. I don't go outside of the house anymore. I have stopped eating. But I know God is going to send somebody so they won't get away with what they have done to me. Whew....that felt good to get that off my chest. Thanks. From, lonely

I'm sorry to hear about your situation. My lawyer strung mine along over 6 years and it was looking to be another 2 years before my trial would be all said and done. My attorney was certainly not good but I couldn't imagine having to deal with all of it without him. It's mind blowing the judge allowed that. Over the last six years or so and with my mother being an attorney for 20 some years I've met a ton of different lawyers all over the country. Depending on what state you are in i would like to try and help you if possible. So if you want let me know what state your case is in and maybe I know someone who could maybe help you.