Lawyers at Parent Psychiatric Evaluations

A U.S. Supreme Court holding from 1967 makes it clear that, in criminal matters, defendants who are required to undergo medical examinations at a “critical stage” of the proceedings have a constitutional right to the presence of their attorneys. United States v. Wade, 388 U.S. 218 (1967) (counsel constitutionally permitted to attend psychological examination of defendant asserting insanity defense). Following the teachings of Wade, New York's Court of Appeals in 1971 came to the same conclusion in Lee v. County Court, 27 NY2d 432 (1971). It found that criminal defendants are entitled to the presence of counsel during critical phases of criminal proceedings, yet also held that the attorney's presence should be unobtrusive: The attorney should not make objections or advise the defendant not to answer questions. The lawyer was allowed to be present only in order to prepare to elicit testimony on direct- or cross-examination.

In civil matters, more often than not, New York courts have also allowed attorneys to accompany their clients during medical examinations. The Appellate Division, Fourth Department, did so in Jakubowski v. Lengen, 86 AD2d 398 (1982), in which that court reasoned that the relative dearth of prior case law on the subject of attorney presence at client medical examinations could be explained by the fact that such attorney attendance in the examination room had gone largely unchallenged in New York up to that point. The Fourth Department noted in that personal injury action that “[n]either CPLR 3121 (physical or mental examination) nor the Uniform Calendar and Practice Rules of the Fourth Department (22 NYCRR 1024.25 (exchange of medical reports)) provide for an attorney's presence at physical examinations and, more importantly, they do not provide for his exclusion.” Still, the Fourth Department found no constitutional right to such accompaniment in civil matters, only noting that this norm had become the “practice” of New York courts.

In 1983, the question arose in a case concerning termination of parental rights, Matter of Alexander L., 60 NY2d 329 (1983). There, the psychological evaluator attempted to refuse an attorney's request to sit in with his client during an evaluation because his employer, the Bureau of Mental Health Services, maintained a blanket policy against such an action. The Court of Appeals held that the parent was entitled to the presence of counsel during the court-ordered psychological examination because Section 262 of the Family Court Act guarantees parents in termination proceedings the right to assistance of counsel during critical phases of these civil proceedings. That guarantee extended to the psychological exam room, the court held.

In the years since these cases were decided, New York courts have largely, though not uniformly, continued to hold that parties in civil matters ' including contested custody matters ' have the right to have their own attorneys present at court-ordered physical or psychological examinations if they so choose; any objector bears the burden of showing the court why the attorney's presence should not be permitted. The rationale in the above cases and their progeny is that the party being examined has a justifiable interest in having his or her attorney present in order to prevent the examiner from asking misleading questions, and/or to allow the examinee's attorney to gather fodder for cross-examination. However, the recent case of of M.A.M. v. M.R.M. has gone against this grain, with the court relying in large part on the decisions of federal and sister state courts to bar an attorney from the psychological examination room.

A Father Wants His Attorney Present

Justice Richard J. Dollinger, of Supreme Court, Monroe County, is hearing the case of M.A.M. v. M.R.M. In it, parents embroiled in a custody dispute were, at the request of the wife, ordered to undergo psychological examinations. The wife was willing to submit to examination by the court's chosen professional without conditions, but the husband alleged bias. His attorney, who felt that he should be present during his client's examination, spoke to the evaluator to gain his permission to accompany his client to the examination.

The evaluator answered the attorney's request by e-mail, stating, “It is the longstanding policy of this office not to allow third parties to be present for any part of the evaluations for reasons that can be explained if necessary.” Unsatisfied, the husband brought the issue before the court.

The psychological evaluator submitted an affidavit to the court laying out his objections to the presence of attorneys at sessions with the parents:

• The husband's attorney made it clear that he would seek to prevent his client from providing spontaneous responses to open-ended or specific questions asked during the course of the interview, responses and information which are critical to an understanding of the individual.
• Clinical interviews, including the taking of the social history, are not solely for the purpose of gaining the asked-about information, but also an assessment of the manner in which such information is presented, the fluidity and cogency of the thought process, observation of the manifest behavior, and other critical clinical nuances and manifestations which are likely to be significantly influenced by the presence of an attorney or any other third party.
• There is considerable professional literature in the field to support the practices of his office and which suggest that the presence of attorneys (or other third parties) has significant potential for undesirable influence on the interactions, behavior, and statements of the individual being evaluated. The potentially negative influence and consequences of an attorney's presence during an evaluation is discussed, as it changes the manner in which the patient/client interacts with the evaluator.

The evaluator also submitted to the court several of the pieces of professional literature to which he had referred in his affidavit. It informed the court that the evaluator would not allow the husband's attorney to sit in on his sessions.

Judge Dollinger determined that because the evaluator had previously conducted numerous psychological examinations in custody matters before him, and had testified as an expert in these matters previously, he should be deemed an expert on the issue of the impact of the presence of third parties during psychological evaluations. The husband provided no counter-expert.

Next month, we will see how the M.A.M. v. M.R.M. court analyzed New York law, found it inconclusive on the question of third-party presence in the medical examination room, and turned for additional guidance to the decisions of sister states and the federal courts in crafting its decision.

Janice G. Inman is Editor-in-Chief of this newsletter.

When parents involved in custody proceedings are ordered to undergo a psychiatric evaluation, are they entitled to have their attorneys present during these interviews? According to the widespread reading of New York common law, the answer has generally been, “Yes.” However, in M.A.M. v. M.R.M., 2012 N.Y. Misc. LEXIS 5644; 2012 NY Slip Op 52299U, a New York trial court recently questioned this common interpretation of the case law, and ultimately determined that it is flawed.

What can litigants, their attorneys, and their medical examiners expect from the courts when this question arises?

Some Background

A U.S. Supreme Court holding from 1967 makes it clear that, in criminal matters, defendants who are required to undergo medical examinations at a “critical stage” of the proceedings have a constitutional right to the presence of their attorneys. United States v. Wade , 388 U.S. 218 (1967) (counsel constitutionally permitted to attend psychological examination of defendant asserting insanity defense). Following the teachings of Wade , New York's Court of Appeals in 1971 came to the same conclusion in Lee v. County Court , 27 NY2d 432 (1971). It found that criminal defendants are entitled to the presence of counsel during critical phases of criminal proceedings, yet also held that the attorney's presence should be unobtrusive: The attorney should not make objections or advise the defendant not to answer questions. The lawyer was allowed to be present only in order to prepare to elicit testimony on direct- or cross-examination.

In civil matters, more often than not, New York courts have also allowed attorneys to accompany their clients during medical examinations. The Appellate Division, Fourth Department, did so in Jakubowski v. Lengen , 86 AD2d 398 (1982), in which that court reasoned that the relative dearth of prior case law on the subject of attorney presence at client medical examinations could be explained by the fact that such attorney attendance in the examination room had gone largely unchallenged in New York up to that point. The Fourth Department noted in that personal injury action that “[n]either CPLR 3121 (physical or mental examination) nor the Uniform Calendar and Practice Rules of the Fourth Department (22 NYCRR 1024.25 (exchange of medical reports)) provide for an attorney's presence at physical examinations and, more importantly, they do not provide for his exclusion.” Still, the Fourth Department found no constitutional right to such accompaniment in civil matters, only noting that this norm had become the “practice” of New York courts.

In 1983, the question arose in a case concerning termination of parental rights, Matter of Alexander L., 60 NY2d 329 (1983). There, the psychological evaluator attempted to refuse an attorney's request to sit in with his client during an evaluation because his employer, the Bureau of Mental Health Services, maintained a blanket policy against such an action. The Court of Appeals held that the parent was entitled to the presence of counsel during the court-ordered psychological examination because Section 262 of the Family Court Act guarantees parents in termination proceedings the right to assistance of counsel during critical phases of these civil proceedings. That guarantee extended to the psychological exam room, the court held.

In the years since these cases were decided, New York courts have largely, though not uniformly, continued to hold that parties in civil matters ' including contested custody matters ' have the right to have their own attorneys present at court-ordered physical or psychological examinations if they so choose; any objector bears the burden of showing the court why the attorney's presence should not be permitted. The rationale in the above cases and their progeny is that the party being examined has a justifiable interest in having his or her attorney present in order to prevent the examiner from asking misleading questions, and/or to allow the examinee's attorney to gather fodder for cross-examination. However, the recent case of of M.A.M. v. M.R.M. has gone against this grain, with the court relying in large part on the decisions of federal and sister state courts to bar an attorney from the psychological examination room.

A Father Wants His Attorney Present

Justice Richard J. Dollinger, of Supreme Court, Monroe County, is hearing the case of M.A.M. v. M.R.M. In it, parents embroiled in a custody dispute were, at the request of the wife, ordered to undergo psychological examinations. The wife was willing to submit to examination by the court's chosen professional without conditions, but the husband alleged bias. His attorney, who felt that he should be present during his client's examination, spoke to the evaluator to gain his permission to accompany his client to the examination.

The evaluator answered the attorney's request by e-mail, stating, “It is the longstanding policy of this office not to allow third parties to be present for any part of the evaluations for reasons that can be explained if necessary.” Unsatisfied, the husband brought the issue before the court.

The psychological evaluator submitted an affidavit to the court laying out his objections to the presence of attorneys at sessions with the parents:

• The husband's attorney made it clear that he would seek to prevent his client from providing spontaneous responses to open-ended or specific questions asked during the course of the interview, responses and information which are critical to an understanding of the individual.
• Clinical interviews, including the taking of the social history, are not solely for the purpose of gaining the asked-about information, but also an assessment of the manner in which such information is presented, the fluidity and cogency of the thought process, observation of the manifest behavior, and other critical clinical nuances and manifestations which are likely to be significantly influenced by the presence of an attorney or any other third party.
• There is considerable professional literature in the field to support the practices of his office and which suggest that the presence of attorneys (or other third parties) has significant potential for undesirable influence on the interactions, behavior, and statements of the individual being evaluated. The potentially negative influence and consequences of an attorney's presence during an evaluation is discussed, as it changes the manner in which the patient/client interacts with the evaluator.

The evaluator also submitted to the court several of the pieces of professional literature to which he had referred in his affidavit. It informed the court that the evaluator would not allow the husband's attorney to sit in on his sessions.

Judge Dollinger determined that because the evaluator had previously conducted numerous psychological examinations in custody matters before him, and had testified as an expert in these matters previously, he should be deemed an expert on the issue of the impact of the presence of third parties during psychological evaluations. The husband provided no counter-expert.

Next month, we will see how the M.A.M. v. M.R.M. court analyzed New York law, found it inconclusive on the question of third-party presence in the medical examination room, and turned for additional guidance to the decisions of sister states and the federal courts in crafting its decision.

Janice G. Inman is Editor-in-Chief of this newsletter.