________________
Re: Case
Dear ___________:
Normally before an attorney takes a case, a formal "representation" or "retainer" agreement is signed which sets forth the scope and terms of the representation. Because of the incredible time pressures in this case we didn't have a chance to do that until now. Now that we have had a chance to discuss these things and reach a common understanding of the scope and terms of my representation, your signature below will signify that this letter accurately sets forth our agreement.
What I have agreed to is to represent you in your pending involuntary commitment and forced medication proceeding. This does not necessarily include a subsequent commitment/forced medication proceeding if we should lose this one or you get into another one. In other words, I am not agreeing to represent you in a different commitment/forced medication proceeding that might be brought upon the expiration of the 30 day commitment the state is seeking here or if we win and they haul you back in later. In great contrast, if either side appeals it is our attention that I will continue to represent you in the appeal. In fact, such a prospect is a very important reason why I agreed to represent you because it is a chance to have your case help many other people in the same situation.
You, of course, are entitled to make decisions regarding the conduct of your case. There are some limitations on this. For example, I can not follow any instructions that would be illegal to take it to the extreme. There are also practical limits to my ability to consult with you because of time constraints. For example, depending on the client and the way that client wants me to do things, I would have a draft of things to be filed with the court for the client to review before filing. Some clients want that, which I welcome, while others frankly don't want to be bothered. I actually prefer the client's review for a couple of reasons, but the main one is that it is always better to have two people think about it than just one. In this case, the unreasonable time constraints have prevented any possibility of advance review. The most extreme example was when I was literally given seven minutes to file an opposition to an important motion that I had not seen until eight minutes before that. In other words, I had a total of 15 minutes from the time I first heard about a motion until I was required to file a response. Obviously, I couldn't give you an advance copy of that. All of the other documents have also had such time pressures that advance consultation was simply not feasible. I don't see that as changing in this case so I don't anticipate giving you advance copies. In addition, of course, in light of your circumstances of being confined by the other side and their being able to take anything I might give you in advance, it would be imprudent to do so. My normal procedure, however, is to copy my client with every document that is produced on his or her behalf and I see no reason why I shouldn't do that. The same goes for important documents I receive from them. Thus, I have copied you with all of the major pleadings I have filed on your behalf as well as Dr. Hanowell's "report" and a copy of your chart, which includes the documents they filed against you.
Another example of where I have to make the decisions is about some of the technical legal issues and where there simply isn't time to consult. For example, snap decisions have to be made in court. However, you have the absolute right as far as I am concerned to control the ultimate goals and make the final decision with respect to any settlement proposals. . The distinction is often phrased as between "tactical" and "strategic" decisions with the client having the right to control strategic decisions and the attorney has to make the tactical decisions. If I had any question about your competence to make those decisions, we would have to address that. I don't. You have the right to make bad decisions even when deciding about the conduct of this case. However, I will tell you what I think the best decision is and why (again within the time constraints we are working under) and if you choose to make a bad one, unless I feel there is a real danger that you are no longer competent to do so, I will follow it. However, I will tell you this right now, if I ask you to sign a paper saying you are directing me to do something against my advice that means I think it is a very serious mistake about a very serious matter. Unfortunately, if it gets to that point, I might be putting myself in jeopardy for malpractice if I follow your directions and may ask for some guidance about whether your directions should be followed. Putting it more bluntly and directly that means I may be forced to question your competency which, would be very bad for you and probably fatal to your case. It puts us both in a very bad situation, so if it ever gets to the point where I ask you to sign a paper saying that you are directing me to do something against my advice, you should carefully reconsider your directions in light of how serious I think the mistake is. I must say, however, that I am unaware of anything that makes me think you were ever incompetent to make decisions, although you know I have thought that you have made some very poor decisions in the past -- even insisting on them after I have told you my view. This, of course, is your right in my view (as opposed to API's view, which is that they should be able force you to do what they think is best for you).
The other thing that
representation agreements provide for is the payment of fees and expenses. My normal hourly rate is $225 per hour, and
normally out of pocket costs are to be reimbursed by the client and internal
copies are charged at $.10 per copy. In
this instance, however, I am actually providing my services through the Law
Project for Psychiatric Rights, an
Another thing to consider is that you have the right to have the hearing open or closed to the public as you decide. We have discussed the pros and cons and please write your decision of "Open" or "Closed" here: ___Closed_______ Finally, as set forth on the psychrights.org website one of the things we are trying to do is to prepare "How To" materials for other attorneys and psychiatrized people to utilize in their efforts to prevent what API is trying to do to you to have happen to them (not just at API). Perhaps it is just foolish pride, but I think that both motions and the deposition transcript can be useful in that regard and my current intention is to make them available to other people, including possibly posting them on the Internet. However, it is your decision whether you want your name to be removed or stay. We have talked about this and please write your decision of "Removed" or "Stay" here: ___Removed______.
The last thing I want to say is that even though it has been a huge amount of work in a short time to try to achieve your freedom, particularly from forced medication, and this has taken a pretty big toll on me, that I am very excited about the prospect of this helping not only you, but other psychiatrized people as well. Thank you for the opportunity to do this.
Yours truly,
/s/
Jim Gottstein
Agreed: _____/s/____________________