Do you reveal personal information about yourself, and/or teachself-disclosure, as a lawyering technique?

Professor Vanessa Merton

Hi, colleagues –

At the end of this message is the description of a concurrent session that 

Janet Calvo

of CUNY and I will co-facilitate at this year’s AALS Clinical Legal Education Section Conference.

As we prepare, we would be very grateful to have the benefit of as much of your insight as you can spare.   Responses should probably come just to us unless for some reason it makes sense to post to the list instead.

What we’d like to know are your thoughts about this small, but significant, question (posed more simply here, more fully below):  is it good practice for a lawyer to inform a client when the lawyer shares certain characteristics or experiences with the client?  If the answer is sometimes yes, sometimes no, how do we decide which, when?  What about if a client is curious and inquires about whether the lawyer is, e.g., an immigrant, a Christian, an alcoholic, or lesbian?  How does it affect the dynamics within a student team if a team member shares, or does not share, personal information with a client?   Does it matter whether the client is interested in characteristics or experiences that are in fact like the client’s – “have you, Ms. Lawyer, ever been fired?  Beaten up?  In a hospice?” -- or that merely seem pertinent to the client, but to the lawyer feel quite personal and private?

Second, what if anything do we teach our student attorneys about this issue?   Do we routinely address this topic when preparing to work with clients? 

Here are some specific questions we would love your feedback on – and understand that you may not have time to answer more than one or two:

1.  Have you ever deliberately disclosed personal information about your experience or characteristics to a client?  If so, for what reason or purpose? Did it “work” as a technique?
2.  Have you ever tried to avoid self-disclosure to a client?  If so, did the client figure it out anyway?   What happened then?
3. Give an example of a type of personal experience or attribute that you think could be good to share with a client.
4.  Have you ever raised the issue of appropriate or inappropriate self-disclosure with your student attorneys?  In seminar, simulation, or supervision?     
5. Have you and/or student attorneys deliberately planned some self-disclosure?
6. Have you ever observed unplanned self-disclosure by a student attorney that concerned you?   What did you do?   
7. Do you think that you as supervising attorney can and should engage in judicious self-disclosure to clients, but encourage student attorneys to refrain from it?  What is your rationale for this distinction?   
8. Do you engage in analogous deliberate self-disclosure about certain aspects of your own background or situation with your students?   Give a couple of examples of personal characteristics or experiences you have chosen to share with students.

___ 

Also, Janet and I are in the process of compiling some written materials on the topic, including some from other professions, and would greatly appreciate any suggestions.

 Thanks, Vanessa

Title:  “When Is the Personal, Professional?”

Co-facilitators:

Professor Janet Calvo, City  University  of New York School  of Law
Professor Vanessa Merton, Pace University  School  of Law

Brief Description:

In this concurrent session, the specific problem we examine is how student attorneys [SAs] should and do handle potential identification with the predicament of a client (or, perhaps, a witness, adversary, juror, or judge – but in our limited time, we will focus on clients), e.g., when an immigrant SA represents immigrants; when an SA representing domestic violence survivors was herself a DV survivor; or an SA who has been fired has a client claiming wrongful discharge?  When does drawing upon or revealing personal experience become a vehicle for empathy and passionate advocacy, and when does it endanger rational decision-making and lead to fallacious presumption?  Might it seem artificial or distancing not to disclose that an SA shares certain key attributes or experiences with the client, such as when the SA’s immigrant origin is "obvious" and the client is likely to recognize and wonder about how the SA’s immigrant status/experience may affect the representation?  Then again, what if ethnicity or accent suggests to the client that the SA is an immigrant when that is not the case?  In determining the appropriate range of self-disclosure, does it matter how “personal” the information is, i.e., age? sexual orientation? political opinion? disability? level of prior lawyering experience or expertise? HIV+ status? bipolar disorder?  Is it different if the supervising professor shares certain characteristics or experiences with the client?  There is a rich literature about secondary trauma and self-disclosure in the medical, social work, and psychiatric literature, so we will look to other professions for their insights.

We also want to explore how these issues may affect case assignments and the dynamics within case teams.  What if one team member is perceived, accurately or not, as having “instant rapport” because of a personal attribute or experience shared with the client?  Or, on the contrary, is personal congruence with a client’s position, or a strong emotional reaction to a client’s particular suffering, a reason not to assign an SA to that client’s case?  Should information about an SA’s similarities with a client be shared within the case team, even if not with the client?  Should SAs be encouraged to express their emotional response to a client’s situation, again at least to the rest of the case team, if not to the client? 

We will try to engage the work-group in formulating ideas and techniques for engaging and working with students on the complexities of this tricky topic.  Perhaps if we cannot determine when the personal ought to be professional, we can at least decide when it should not.      

 Professor Vanessa Merton
Faculty Supervisor, Immigration Justice Clinic

John Jay Legal Services, Inc.
Pace University School  of Law 
80 North Broadway 

White Plains NY 10603

914 422 4333 (office) 
914 422 4391 (fax) 
800 836 7223 (free call)
vmerton@law.pace.edu