From Understanding Elder Law, Chapter 1
- Discover how to maintain confidentiality.
- Find out how to avoid multiple representation.
Determining Who Is the Client
Attorneys dealing with elder clients often face ethical issues in determining competence, in properly representing the impaired or incapacitated client, and determining who is actually the client. One of the first questions the attorney must ask is “who do I represent? Is it the elderly person, is it the family member, or is it both?”
The attorney must clearly understand who is represented, and communicate that relationship to the other parties involved. An attorney’s fiduciary duty is of the highest order and you must not represent interests adverse to those of the client. It is true that because of your professional responsibility and the confidence and trust that your client places in you, you must adhere to a high standard of honesty, integrity, and good faith when dealing with the client. You are not permitted to take advantage of your position or superior knowledge to impose upon the client, nor conceal facts or law, nor in any way deceive him without being held responsible therefore.1
If you represent the older family member, you must advise the other family members of your obligation of undivided loyalty to your client and the requirement of the confidentiality of lawyer-client communications. The professional judgment of a lawyer should be exercised, within the bounds of the law, solely for the benefit of the client and free of compromising influences and loyalties.
A fundamental principle in the attorney-client relationship is the attorney’s duty to maintain confidentiality of information relating to the representation. The client is thereby encouraged to communicate fully and frankly with the attorney even when dealing with embarrassing or legally damaging subject matter.2 And it is important to remember the duty of confidentiality continues after the attorney-client relationship has terminated.3 The American Bar Association Model Rules for Professional Conduct, Rule 1.6, provides some guidance:
(a) A lawyer shall not reveal information relating to representation of a client unless the client consents after consultation, except for disclosures that are impliedly authorized in order to carry out the representation, and except as stated in paragraph (b).
(b) A lawyer may reveal such information to the extent the lawyer reasonably believes necessary
(1) to prevent the client from committing a criminal act that the lawyer believes is likely to result in imminent death or substantial bodily harm; or
(2) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer’s representation of the client.4
The attorney must be careful if family members desire to be present when the attorney is counseling the elder client. The question of undue influence can arise whenever the elder client has another person present at the interview. But you should not automatically exclude everyone except the elder client from the interview. You should consider the reasons why the elder client wants another person present. There may be legitimate reasons, such as when the client wants someone there for moral support. But then it may be because the client is a victim of undue influence. How do you know? The burden on the attorney is significant though seldom appreciated by the client or the client’s family. The confidentiality rule applies not merely to matters communicated in confidence by the client but also to all information relating to the representation, whatever its source.
Multiple representations are easy to fall into. The appointment is made by the adult child for the elderly parent to discuss wills, powers of attorney and advance directives. The child drives the parent to the appointment and comes in to meet with the parent and attorney. The child may do most of the talking and is the one who writes the check to pay the legal fee. You may have done legal work for both parent and child in the past. They consider you the family’s attorney. Who is your client? Often times there is no problem, but what do you do when the child appears to pressure the parent into naming her as personal representative and power of attorney? This may appear to be the best decision, but it won’t look so clear if at a later date another child contacts you complaining of possible improprieties by the child who now has power of attorney under the document you prepared and your secretary notarized. It is even worse if the child makes you aware of the parent’s declining mental condition and you only spent 30 minutes interviewing the client because it was a boilerplate simple will and power of attorney.
The watchword is caution. Make the ethical problems known at the beginning of the representation. Keep in mind the Rules of Professional Conduct, Rule 1.7, which states:5
(a) A lawyer shall not represent a client if the representation of that client will be directly adverse to another client, unless:
(1) the lawyer reasonably believes the representation will not adversely affect the relationship with the other client; and
(2) each client consents after consultation.
(b) A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer’s responsibilities to another client or to a third person, or by the lawyer’s own interests, unless
(1) the lawyer reasonably believes the representation will not be adversely affected; and
(2) the client consents after consultation. When representation of multiple clients in a single matter is undertaken, the consultation shall include explanation of the implications of the common representation and the advantages and risks involved.
Then document in your files that you explained these issues, hope for the best, and do your job well.
Estate Planning Conflicts
Conflict questions may also arise in estate planning and estate administration. An attorney may be called upon to prepare wills for several family members, such as husband and wife, and depending upon the circumstances, a conflict of interest may arise. In estate administration, the identity of the client may be unclear under the law of a particular jurisdiction. In one view, the client is the fiduciary; in another view, the client is the estate or trust, including its beneficiaries. The attorney must make clear the relationship to the parties involved.6 For example consider the following scenario:
An attorney in estate practice represents an older couple for whom she prepares “mirror wills” in which each leaves the estate to the other. Several days after the wills are executed, the husband alone visits the attorney, asks the attorney to prepare a new will leaving the bulk of his estate to another woman, and instructs the attorney to keep the visit confidential from his wife. How should the attorney respond? May she draft the new will? May she—indeed, must she—disclose the circumstances of the visit to the wife?
In 1994, six organizations (the American Association of Retired Persons, ABA Commission on Legal Problems of the Elderly, ABA Section on Real Property, Probate and Trust Law, American College of Trust and Estate Counsel, National Academy of Elder Law Attorneys and Fordham Law School’s Stein Center for Ethics and Public Interest Law) met to discuss ethical issues in representing older clients. The scenario set forth above was one of the issues discussed at this conference.7 The consensus of opinion at the conference on the above scenario is as follows:
Taking a practical approach, participants in the Conference perceived that the estate attorney’s dilemma was largely of the attorney’s making. By appropriately counseling the clients at the outset of the representation, in a manner participants deemed consistent with the existing Model Rules, the prudent estate attorney would ordinarily avoid having to act in a manner that one client or the other might reasonably regard as an act of betrayal. Thus, the Conference recommended that when an attorney is asked to represent multiple family members, the attorney should explore the possibility that a conflict of interest will arise with the prospective clients. Furthermore, the attorney should explain to the family members how confidences will be treated.8
The prospective clients should be told at the initial client conference that one client’s disclosures will not be kept confidential if they involve revelations that are relevant and adverse to another client’s interest. In the context of estate planning in particular, the spouses should be told that there can be no secrets as to issues material to the estate plan. Unless the family members agree in advance that confidences will be handled in this manner, they must seek separate attorneys. Moreover, even with respect to how nonmaterial disclosures are to be handled, attorneys should reach some understanding with the clients in advance regarding the nonmaterial disclosures. Having achieved an understanding about how confidences will be handled, the attorney can then act in accordance with that understanding without reasonably being accused of violating the duty of loyalty or confidentiality. For example, the husband who intended to alter his will without his wife’s knowledge will be on notice that, if he seeks the assistance of the estate attorney who had prepared the couple’s “mirror wills,” that attorney will be obligated to inform the wife.9
Accepting Payment of Fees from Non-Client
What ethical problems can the attorney face when another family member and not the client wants to pay for the legal services given to the elderly client? The Model Rules of Professional Conduct, Rule 1.8, addresses this issue:
(f) A lawyer shall not accept compensation for representing a client from one other than the client unless:
(1) the client consents after consultation;
(2) there is no interference with the lawyer’s independence of professional judgment or with the client-lawyer relationship; and
(3) information relating to representation of a client is protected as required by Rule 1.6.
If your services are being paid for by other family members, you must obtain consent for this arrangement from the older family member who is the client. Yet, the mere fact the attorney is actually paid by some entity other than the client does not affect that relationship, so long as the attorney is selected by and is directly responsible to the client.l0 On the other hand, if you choose to represent other family members, you must explain your role to the older family member and offer no advice except to advise the older family member to obtain his or her own counsel.11
Attorneys should keep a detailed itemized statement of all charges for the elderly client. An attorney’s fee must be reasonable. Factors to be considered in determining the reasonableness of a fee include-·the following:
(A) The time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly.
(B) The likelihood, that the acceptance of the particular employment will preclude other employment by the attorney.
(C) The fee customarily charged in the locality for similar legal services.
(D) The amount involved and the results obtained.
(E) The time limitations imposed by the client or by the circumstances. (F) The nature and length of the professional relationship with the client.
(G) The experience, reputation, and ability of the attorney or attorneys performing the services.
(H) Whether the fee is fixed or contingent.12
The determination of a proper fee requires consideration of the interest of both client and attorney. An attorney should not charge more than a reasonable fee; excessive cost of legal service would deter laymen from utilizing the legal system in protection of their rights. Furthermore, an excessive charge abuses the professional relationship between attorney and client. On the other hand, adequate compensation is necessary in order to enable the attorney to serve his or her client effectively and to preserve the integrity and independence of the profession.13
The importance of determining your fee arrangement is illustrated in Kentucky Bar Assn. v. Noble. The attorney was disbarred from the practice of law for charging an excessive or illegal fee, having a conflict of interest, making a false statement to a tribunal and engaging in conduct involving dishonesty, fraud, deceit, and misrepresentation. The attorney violated Disciplinary Rule 2-106 when he entered into a contract calling for payment of attorney’s fees for three visits to his client in a nursing home per day for two hours per visit at $110.00 per hour, which constituted a charge of a professional fee for nonprofessional services. He further was found guilty of violating Disciplinary Rule 5-101, which prohibits an attorney from accepting employment if exercising professional judgment on behalf of a client may be affected by the attorney’s own financial, business, property, or personal interest. This second violation was because the attorney prepared a will for his client in which he named himself as executor, knowing he would be asserting a substantial financial claim of $145,000.00 against the estate for legal fees. Law is still meant to be practiced as a profession and not a business enterprise—a fact increasingly overlooked by many in our profession. May they soon find other work.
Competency of Elder Client
Competent adults have the right to make decisions, whether or not the decision is the same as the one the attorney would make; and protecting the client’s autonomy in making a decision is crucial in the attorney-client relationship.14 Whether an elderly client has the mental capacity to make major legal decisions for his or her life is a concern to the attorney. If there is doubt, the attorney should contact the client’s physician and gain the-physician’s assistance in making the determination.
Today many of our elderly are facing the terrible disease of dementia: Dementia refers to degenerative diseases that result in the progressive deterioration of intellectual and emotional functions.15 This disease can virtually destroy a person’s mind and leave him helpless.
When a client’s ability to make adequately considered decisions in connection with the representation is impaired, whether because of mental disability or for some other reason, the attorney shall, as far as reasonably possible, maintain a normal attorney-client relationship An attorney may seek the appointment of a guardian or take other protective action with respect to a client only when the attorney reasonably believes that the client cannot adequately act in the client’s own interest.16
The normal attorney-client relationship is based on the assumption: that the client, when properly advised and assisted, is capable of making decisions about important matters. When the client suffers from mental disorder or disability, however, maintaining the attorney-client relationship may not be possible in all respects. In particular, an incapacitated person may have not power to make legally binding decisions. Nevertheless, a client lacking legal competence often has the ability to understand, deliberate upon, and reach conclusions about matters affecting the client’s own well-being including making a will. Furthermore, to an increasing extent the law recognizes intermediate degrees of competence. So it is recognized that some persons of advanced age can be quite capable of handling routine financial matters while needing special legal protection concerning major transactions.17
The fact that a client suffers a disability does not diminish the attorney’s obligation to treat the client with attention and respect. If the person has no guardian or legal representative, the attorney often must act as de facto guardian. Even if the person does have a legal representative, the attorney should as far as possible accord the represented person the status of client, particularly in maintaining communication.18
When a disabled person or another acting in good faith on that person’s behalf has consulted the attorney in an emergency where the health, safety or a financial interest of the person under a disability is threatened with imminent and irreparable harm, an attorney may take legal action on behalf of such a person even though the person is unable to establish a client-attorney relationship or make or express considered judgments about the matter. Even in such an emergency, however, the attorney should not act unless the attorney reasonably believes that the person has no other attorney, agent or other representative available. The attorney should take legal action on behalf of the disabled person only to the extent reasonably necessary to maintain the status quo or otherwise avoid imminent and irreparable harm. An attorney who undertakes to represent a person in such an exigent situation has the same duties under the Rules of Professional Conduct as the attorney would with respect to a client.19
An attorney who acts on behalf of a disabled person in an emergency should keep the confidences of the disabled person as if dealing with a client, disclosing them only to the extent necessary to accomplish the intended protective action. The attorney should disclose to any tribunal involved and to any other counsel involved the nature of his or her relationship with the disabled person. The attorney should take steps to regularize the relationship or implement other protective solutions as soon as possible. Normally, an attorney should not seek compensation for such emergency actions taken on behalf of a disabled person.20
Any mental or physical condition of a client that renders the client incapable of making a considered judgment on his or her own behalf casts additional responsibilities upon the client’s attorney. Where an incompetent is acting through a guardian or other legal representative, an attorney must look to such representative for those decisions that are normally the prerogative of the client. If a client under disability has no legal representative, the attorney may be compelled in court proceedings to make decisions on behalf of the client. If the client is capable of understanding the matter in question or of contributing to the advancement of his or her interests, regardless of whether the client is legally disqualified from performing certain acts, the attorney should obtain from the client all possible assistance. If the disability of a client and the lack of a legal representative compel the attorney to make decisions for the client, the attorney should consider all circumstances then prevailing and act with care to safeguard and advance the interests of his or her client. But obviously an attorney cannot perform any act or make any decision which the law requires the client to perform or make, either acting for himself or herself if competent, or by a duly constituted representative if legally incompetent.21
If a legal representative has already been appointed for the client, the attorney should ordinarily look to the representative for decisions on behalf of the client. If a legal representative has not been appointed, the attorney should see to such an appointment where it would serve the client’s best interests. Thus, if a disabled client has substantial property that should be sold for the client’s benefit, effective completion of the transaction ordinarily requires appointment of a legal representative. In many circumstances, however, appointment of a legal representative may be expensive or traumatic for the client. Evaluation of these considerations is a matter of professional judgment on the attorney’s part.22
Also of note: if the attorney represents the guardian as distinct from the ward and is aware that the guardian is acting adversely to the ward’s interest, the attorney may have an obligation to prevent or rectify the guardian’s misconduct.23
A client has the right to discharge the attorney at any time. However, if client is mentally incompetent, the client may lack the legal capacity to discharge the attorney, and in any event the discharge may be seriously to the client’s interests. The attorney should make a special effort to help the client consider the consequences and, in an extreme case, may initiate proceedings for a conservatorship or similar protection of the client.24 Representing the elderly when mental incapacity begins its grasp of your client is a tricky ethical minefield. The client needs representation, but you must be wise to avoid an ethical bomb blowing up on you.
1. Smoot v. Lund, 369 P.2d 933, 936 (Utah 1962).
2. ABA Model Rules of Professional Conduct Rule 1.6 cmts.  (2001).
3. ABA Model Rules of Professional Conduct Rule 1.6 cmts.  (2001).
4. ABA Model Rules of Professional Conduct Rule 1.6 (2001).
5. ABA Model Rules of Professional Conduct Rule 1.7 (2001).
6. ABA Model Rules of Professional Conduct Rule 1.7 cmts.  (2001).
7. Bruce A. Green, ABA Comm’n on Legal Problems of the Elderly, Ethical Issues in Representing Older Clients (1994).
10. John R. Kinley & Jeffrey Beck, Elder Law: Dynamics of an Expanding Practice Area 1-7.
11. ABA Comm. on Ethics and Professional Responsibility, Formal Op. 320 (Feb. 19, 1968), see also ABA Comm. on Ethics and Professional Responsibility, Informal Ops. 469 (Dec. 26, 1961) and 679 (July 1, 1963).
12. Model Rules of Professional Conduct Rule 1.5 (2001).
13. ABA Model Code of Professional Responsibility 2-17 (1969).
14. John J. Regan, Rebecca C. Morgan & David M. English, Tax, Estate and Financial Planning for the Elderly, in Counseling for the Elderly Client § 1.6 at 1-15 (1998).
15. John R. Kinley & Jeffrey Beck, Elder Law: Dynamics of an Expanding Practice Area § 1.6 at 1-7.
16. Model Rules of Professional Conduct Rule 1.14 (2001).
17. Model Rules of Professional Conduct Rule 1.14 cmt. . (2001).
18. Model Rules of Professional Conduct Rule 1.14 cmt. . (2001).
19. Model Rules of Professional Conduct Rule 1.14 cmt. . (2001).
20. Model Rules of Professional Conduct Rule 1.14 cmt. . (2001).
21. Model Code of Professional Responsibility Canon 7, at 7-12 (Ethical Consideration) (1969).
22. Model Rules of Professional Conduct Rule 1.14 cmt. .
23. Model Rules of Professional Conduct Rule 1.14 cmt. .
24. Model Rules of Professional Conduct Rule 1.16(b) cmt. .