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ISSUE V. 21 |
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FEATURE OF THE MONTH |
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ARCHIVE OF PAST ISSUES |
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Employment Law Family Law
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Litigation
Borderline Personality Disorder and the Attorney-Client Relationship: Managing the Difficult Legal Client to Maximize Positive Outcomes
By Daniel Kupper, Ph.D.
Dr. Kupper earned his doctorate in Clinical Psychology at UCLA. He is an Assistant Clinical Professor in the Department of Psychiatry at the David Geffen School of Medicine, UCLA. His duties include lecturing on the assessment and treatment of Borderline Personality Disorder and Post-Traumatic Stress Disorder. He has a private psychotherapy and consultation practice in West Los Angeles. Dr. Kupper can be reached at Daniel.Kupper@adelphia.net
Personality Disorders in the General Population
Borderline Personality Disorder (BPD)
BPD In the Legal Setting
The BPD Client and Litigation
The BPD Client and His or Her Attorney
Strategies
ConclusionPersonality Disorders in the General Population
Personality disorders are psychiatric conditions identified by specific criteria in the Diagnostic and Statistical Manual (DSM-IVR) of the American Psychiatric Association. All ten personality disorders are characterized by rigid and inflexible patterns of thinking, emotional experience and behavior. By definition, personality disorders are chronic in nature, manifesting across a broad range of situations, and not the result of specific, stressful events (e.g., a disrupted business partnership). They usually have a marked, debilitating effect on interpersonal relationships, occupational and academic functioning, and can lead to problematic interactions in the legal setting. It is generally believed that each personality disorder is caused by a combination of genetic and environmental factors. Survey research indicates that at any one time, 10 to 13% of the population, and 20% to 30% of patients in primary care outpatient settings, may be afflicted with a personality disorder.Borderline Personality Disorder (BPD)
A personality disorder that appears frequently in legal settings and tends to lead to difficult and potentially destructive interactions is Borderline Personality Disorder. For reasons delineated below, persons with BPD often feel compelled to seek legal redress and can be quite litigious. They are often the “difficult” clients who seduce, frustrate, or intimidate attorneys and their staff. Borderline clients are usually impulsive and evince instability across many areas of their life—relationships, self-esteem, affect and behavior. Abandonment and rejection by a needed or trusted other are feared above all things. Therefore, relationships, especially those characterized by a measure of dependency, for example the attorney/client relationship, trigger a kind of “hyper alertness” to betrayal. In the face of the experience --or, more likely, the perception of rejection-- panic, rage, and retaliation are typical. Other common BPD symptoms include depression, anxiety, self-mutilation, suicide threats and attempts, substance abuse, eating disorders, gambling, and reckless spending and sexual behavior.About 75% of those given the diagnosis of BPD are women. However, this may be because male borderlines are more likely to direct violence at others. They often get into fights and are frequently cyclical domestic abusers. Thus, they are more likely to be incarcerated and end up being diagnosed with Antisocial Personality Disorder. Inherited and environmental factors both seem to interact to lead to adult BPD. It may be that borderline adults are from birth temperamentally more prone to experiencing intense negative feelings when frustrated. Research indicates that BPD adults come from families where they experienced constant “invalidation;” that is, their emotional reactions and opinions were negated and considered wrong, crazy, or weak. There is evidence that borderlines had troubled interactions even in infancy with their primary caretakers, usually the mother. Their mothers have been characterized most frequently as “frightened and frightening.” It is also clear that a large percentage of borderline adults have experienced trauma in the form of chronic sexual, physical, or psychological abuse during childhood or adolescence.
Borderlines vary widely in overall functioning, but they are always significantly impaired in either intimate relationships or in occupational functioning, or often both. However, it is important to remember that there are many “high-functioning” borderlines who can be very successful and accomplished. They may be highly respected and successful physicians, judges, attorneys, professors, business people, writers or actors, as long as they can avoid intimacy, their work situation is structured, and they can identify and take refuge in their professional role while working with others.
BPD In the Legal Setting
In the legal setting, BPD can be immediately identifiable or may only gradually become apparent over time and after multiple interactions. A client’s behavior may be highly inappropriate to the situation (e.g., hostile, seductive, anxious, needy) and may in turn elicit powerful and often irrational negative or positive emotional reactions from legal practitioners. For instance, their demands in terms of time and availability may be unreasonable and relentless, or they may constantly test or show open contempt for an attorney’s loyalty, competence, or motives. This is often due to an inability to reflect on their behavior or empathize with others. Their tendency is to misinterpret and distort the communications and intentions of others. At these times, it is important to realize that they may truly believe that they are in danger and might be destroyed, and that their behavior is the direct result of this certainty, however unreasonable that may seem to the casual observer.As a result of early trauma, Borderlines tend not to think in terms of “states of mind” or to reflect on the intent behind actions. They tend to judge people purely on their behavior without considering the variety of possible motivations behind a certain behavior. Therefore, attitudes, beliefs or motivations behind certain behaviors can be grossly misidentified, especially if the BPD feels pushed away or neglected. Because of their history of trauma, they tend not to differentiate feeling from fact. They believe that their emotional reactions are equivalent to reality. Thus they may rapidly but incorrectly infer anger, lack of interest, control and rejection from another’s actions or even facial expressions, all of which for them imply inevitable abandonment. Acute feelings of panic then ensue. Finally, they attempt to protect themselves and regain some sense of power and dignity by retaliating with hostile verbal or sometimes physical threats (e.g., reports to the Bar Association, legal action), and self-righteous character assassination.
One day outside my office I ran into a patient with BPD. I was preoccupied and hurrying to a lunch appointment and out of context almost didn’t recognize her. When I did, I said hello politely and hurried on. When she next came in, her demeanor was noticeably cold. She announced that because of the abusive way I had treated her on the street, she finally realized “what I was up to,” and had decided to report me to my professional board for gross negligence. Although eventually she was able to accept my candid and direct explanation for my behavior and understand that it might not have been indicative of my sadistic desire to degrade and humiliate her, this incident underscores the Borderlines’ exquisite sensitivity to perceived slights, their tendency, especially when hurt, to focus on behavior rather than on possible intentions, to assume that their emotional reaction is the truth and only truth, and their conviction that they have no other alternative but to defend themselves by counterattacking their perceived victimizer. Mental health professionals will tell you that when you feel like you are “walking on eggshells” with your client, you are most likely in the presence of borderline pathology.
This article is intended to provide the legal practitioner with effective strategies for managing difficult clients, who may or may not have Borderline Personality Disorder.
The BPD Client and Litigation
Borderlines are often drawn to conflict because they tend to see relationships as existing in dynamics of victim/persecutor, helpless/powerful, controlled/controlling. This is due to their tendency to rely on unconscious defense mechanisms called “splitting” and “projection.” Splitting is the tendency to see the self and others as either all good or all bad, and the tendency to oscillate rapidly between these two extreme positions. Projection, which occurs simultaneously, externalizes the borderline’s internal fears and self-hatred onto an interpersonal relationship. For instance, an attorney can be seen at one point as a brilliant, protective savior, but if there is even a small crack in the armor, the same person can be viewed as an incompetent or dishonest charlatan who is only interested in racking up fees. At times, they see themselves as all bad and worthless, and may become depressed and suicidal. When they attempt to relieve themselves of these painful feelings by projecting them outward, they can then see themselves as all good and others, possibly spouses, business partners, employers, medical and legal professionals, as evil exploiters and victimizers.This tendency to split is exacerbated when, in the context of a close or important relationship, they believe they have been hurt, neglected, or abandoned by someone they trusted often blindly. As mentioned above, this leads to an excruciating experience of intense shame and anxiety. As a way to relieve this intolerable state of mind, they tend to focus incredible energy on striking back at the perceived “perpetrator”, blaming that person as the cause of everything bad, without taking into consideration or taking responsibility for their own actions. Their world can rapidly transform into a self-contained, simplistic drama of the righteous versus the evil where they play the part of the hero fighting for justice and dignity. A significant appreciation of the nuance and complexity of most relationships is not possible.
The use of splitting and projection leads to a set of predictable behaviors and attitudes on the part of a BPD client. First, they can have total certainty and a passionate belief in their skewed view of reality. Also, instead of facts and logic, they tend to use intense emotion to convince others of their point of view. Research has shown consistently that humans can be very susceptible to a passionately-held point of view; clinical reports attest to the fact that individuals with BPD are uncannily adept at inducing others to experience certain feelings and attitudes toward them. Furthermore, many borderlines can also be quite adept at presenting a calm, reasonable public persona, while they are violent, abusive and irrational in private with those they know well.
Often attorneys, juries, and judges are won over. At least at first, they want to help them and become angry with those accused of victimization. The borderline tendency to negatively stereotype, hurl allegations, and recruit others in the character assassination of their adversary can become convincing, no matter how exaggerated.
With its adversarial assumptions, the legal setting can reinforce the tendency to split and underscores the appeal of the concrete over the abstract. In terms of their battle against a perceived victimizer, only winning in a palpable (i.e., through a monetary settlement or award, or judicial order) manner relieves them of their shame and anger. They also tend to seek out those whom they can idealize and consider powerful enough to protect them. Attorneys are such professionals: it is their role to advocate for others. Some attorneys will not be concerned about this; others, for personal reasons, may be flattered and buy into it. This can lead to uncritical acceptance of their BPD clients or increasing emotional involvement. In some cases, attorneys, like other professionals who enter a professional relationship with a borderline client, will lose their sense of professional boundaries and become intimately involved with their borderline clients.
The BPD Client and His or Her Attorney
Legal professionals must not be in denial about the fact that, no matter how positive your relationship with you client or how wonderful you seem to be in their eyes, the BPD client remains chronically suspicious and highly alert to minute signs of betrayal, lack of interest, control, or obfuscation, particularly on the part of those on whom they depend. Along with their chronic tendency to see danger where it doesn’t exist, their seeming inability to reflect on the variety of mental intentions that might motivate a particular behavior, and their need to constantly test the loyalty of others, it is likely that disappointment, hurt, and rage will be inevitable. At that point, the attorney and the firm, once seen in a totally positive, idealized light will be perceived in highly negative terms and condemned as evil for any number of reasons. Under these circumstances, the attorney client relationship can become chaotic and hostile. In extreme but not necessarily rare cases, a new attorney will be hired, and the erstwhile attorney and his or office will be reported to the Bar for incompetence or negligence, or threatened with legal action.Strategies
In order to lower the probability of this reaction or to modulate it when it occurs, it is first and foremost essential for the attorney and anyone else in the firm who has contact with this client to honestly monitor their own feelings vis a vis the client and to take them into careful consideration when dealing directly with him or her. When attorneys don’t do this they run the risk of engaging in behavior that is ultimately sabotages their relationship with their borderline clientsAlso, be cognizant of the impact of your demeanor, tone, and behavior on this particular client. Try to approach things in a direct, but calm and neutral manner. Individuals with BPD scan facial expressions and nonverbal behavior but tend to misinterpret it. Try not to flood this client with your opinions or to overwhelm them with potential scenarios that might be negative. The BPD client is easily overwhelmed and may feel endangered either by the information you present or the way in which you present it. At this point, rather than taking in or thinking about what you are presenting, the BPD client will tend to shift to a fight or flight position, and become vigilant, anxious and emotional. However, it is equally important not to give in to the tendency to avoid negative information or to tiptoe around your BPD clients. In reaction they are almost certain to believe they are again being invalidated. Instead, try to make every communication with a client whom you suspect has BPD as transparent as possible, particularly when a disagreement arises or seems likely. The following specific approaches can help if used persistently:
1. Elicit and solicit your client’s point of view. Don’t refute it immediately, no matter what your opinion. Instead, treat the client respectfully and especially non-judgmentally by asking them questions about why they believe certain things to be true or how they came to that opinion.
2. When you present your own point of view, take care to mention that you are aware that other points of view exist and that your point of view is one alternative and could be fully or partially mistaken. An attorney might begin by saying, “I appreciate your views on this matter and your certainty about them, but I wouldn’t be doing my job if I didn’t tell you that there are certain alternative ways of looking at this that come to my mind. Can I go ahead and share them with you?”
3. Always check in with the borderline in a nonchalant, non-patronizing way to make sure you have been understood in the way you intended, by asking, for example, “Does what I said make sense to you?” Borderlines believe their view of reality is the only correct one, but it is important that you come away from significant discussions with the sense that the client understands your stance and/or evaluation, and that it differs from his or hers.
4. Don’t try to avoid conflict with the BPD client. The typical way in which professionals avoid conflict with their borderline clients is to hide information, especially if it is negative, that might cause an emotional reaction, or to avoid contact entirely. Do your best to fight against this tendency; it is almost always a mistake. Borderline clients hate “not knowing” and tend to look for evidence that they are being deceived. If they find out that information is being kept from them, trust in you will be instantly damaged and possibly destroyed, and you will be considered dangerous or worthless to them.
Conclusion
In addition to having his own extremely rigid notion about why and how things happen, the BPD client can become quickly suspicious of even the “all good” attorney’s motivations. When you turn your thought processes inside out for the client, explaining clearly and undefensively why you reached the conclusion you reached, you reassure the client that you are not hiding anything or keeping anything secret, even if you are inevitably challenging the accuracy of his own rigid, distorted views. If you do this in a collaborative, non-confrontational way, instead of lecturing or becoming impatient, you are less likely to trigger the sense of threat, which will undermine your attempts to successfully work with this client. In all, clinical experience indicates that borderlines are reassured and calmed by direct, clear communications, even if it contains negative information.
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