Representing Adult Victims of Sexual Assault & Domestic Violence: Duty of Competence

Trauma victims present a number of characteristics that result from their trauma. This includes PTSD with all its plethora of symptoms, as well as the effects of gaslighting and trauma bonding. Understanding these characteristics is critical to understanding how victims view the world and interact with others, including their lawyers. It is also important because victims of trauma will present cognitive, logistical, and communication challenges. However, as attorney Maria-Vittoria Carminati notes in this important program, ignoring, not understanding, or mishandling these issues can result in lawyers failing in their duty of competence.

A lawyer has a duty of competence, at all times and regardless of who the client is. If the lawyer does not fully comprehend why the client-victim is behaving in certain ways, they may fail in their duty of competence. Ways to do this would be to be impatient, impose too onerous burdens, or failing to accommodate the client's well-grounded needs. Communication can also pose a challenge because of trauma victims' various behaviors. Although victims of trauma can be challenging clients, they are also among the most deserving of legal services and most in need of strong advocates who will compassionately and fiercely stand up for them. As a result, lawyers should endeavor to learn how to be better lawyers for them and help them in their times of need.  

Learning Objectives:

1. Examine the duty of competence as defined by ABA Model Rule 1.1

2. Review recent revisions to the ABA Model Rules, particularly Rules 1.1 (Competence), 1.4 (Communication), 1.6 (Confidentiality), 4.4 (Unintentional Disclosure), 5.1 (Supervising Junior Lawyers), and 5.3 (Supervising Staff and Vendors)

3. Address the way that trauma affects a victim's interactions with the legal system and the victim's lawyer, and how those interactions can pose a challenge to competent representation

4. Identify best practices for recognizing domestic violence and truly understanding your case

5. Develop techniques to address the many challenges of representing victims of domestic violence, while showing adequate sensitivity to the victim's state of mind and pathology 

6. Explore how to navigate common ethical challenges through the use of practical scenarios that attorneys are likely to face in this area of law