February 01, 2014

Book Excerpt: Ethics in the Practice of Elder Law

(Note: The pdf for the issue in which this article appears is available for download: BIFOCAL Vol. 35, Issue 3.)

Available for purchase in the ABA Webstore.

This book features a useful and practical approach to guiding an attorney new to elder law through potential ethical issues. With the inclusion of practitioner checklists, the book provides a framework for analyzing the day-to-day issues that elder law attorneys encounter.

Chapter 2: Who Is the Client?

An elderly woman walks into an elder law attorney’s office accompanied by one of her three children, a daughter. The daughter made the appointment by telephone for her mom to obtain a new will in light of her husband’s death.


Identifying the Client

  1. Who will be signing the documents you draft?
  2. Whose confidential information will be obtained in order to perform the services requested?
  3. Who are the other parties impacted by the decisions of the identified client?
  4. Who arranged the meeting and came to the attorney’s office?
  5. Who will be paying for the services?
  6. Who has the right to terminate the attorney?

Defining the Roles of Others in the Representation

  1. Is there more than one client?
    • Is this a joint representation?
    • Did any participant become an accidental client?
    • Is any participant entitled to the protection of a prospective client?
  2. Are the other people going to be involved in the decision making?
  3. Are there beneficiaries to the representation?

Interacting with Non-clients

  1. Do I allow them in the conversation?
  2. Do I explain to them the nature of my relationship with them?
  3. Do I accept payment from them?
  4. Do I consult with them?
  5. Do I give them advice?

Why Do We Need to Identify the Client?

Although many of the Rules of Professional Conduct refer to the attorney’s conduct in relationship to the client, nowhere in the rules is the term “client” defined.1 In every representation the client is central; however, outside of the elder law area, the issue of identifying the client will usually not be difficult or even arise. Elder law is different because, unlike other areas of the law, the first question the attorney must explore, answer, and communicate is who the client will be. In elder law, the client is not always easily identifiable because of the presence of other people. People who are identified as third parties to the representation can be present because they are a potential beneficiary of the elderly person’s decisions or based on their role in the elderly person’s decision making.

A non-client may be the person who initially sought the attorney’s services, as in the above hypothetical in which the first call comes from the daughter. In this situation, there is involvement of additional individuals from the very beginning of representation. Many times, children, spouses, or friends will accompany the elderly person to the attorney’s office. Additionally, the elderly person may ask that the person bringing him to the office actually accompany him into the meeting. Finally, the attorney’s services may be paid for by someone other than the elderly client, from either the client’s funds, or the non-client’s own funds.

The third person can also be “present” in the representation because of the direct impact of the elderly person’s decision on that party, for example in drafting a will. The beneficiaries of the will have a direct interest in the decisions of the elderly client. Additionally, as we will discuss in Chapter 6, the attorney representing a fiduciary will need to take into account the desires and needs of the principal in his representation.

Finally, third parties are “present” in the representation because of the involvement of family members in the elderly person’s decisions. Many times elderly people may involve non-clients in decision making. An elderly client may explicitly or implicitly defer to her spouse or child in making decisions. Occasionally, the family member will attempt to interject into the decision making, or at least believe he should be part of the decision making, even over the objection of the elderly client. Because of the “presence” of other people in elder law representation, it becomes imperative that the attorney answer the question “who is the client” when undertaking representation.

The identification of the client is essential because it is to that person that the lawyer owes the duties of representation. The comment to the NAELA Aspirational Standard A.1 states that:

[i]t is to the client that the lawyer has professional duties of competence, diligence, loyalty and confidentiality. This is especially important in Elder Law, because family members may be very involved in the legal concerns of the older person or person with disabilities, and they may even have a stake in the outcome.2

It is to the client that the attorney owes a duty of communication, loyalty, and confidentiality.3 These are the core values of representation, but it is only the client who is entitled to these obligations and protections. The client is entitled to complete and consistent communication from the attorney. The attorney needs to inform the client of decisions and circumstances as they occur. He or she must consult with the client about the means of obtaining the client’s objectives and, most important, explain matters to an extent reasonably necessary for them to make informed decisions.

Additionally, the attorney owes a duty of loyalty to his client.4 A conflict can occur with the interests of another client, a former client, or the personal interests of the attorney. This duty to refrain from conflicts of interest can be fulfilled only by identifying the client. It is important for the attorney to then place the interests of all non-clients and himself behind the interests of the identified client.

Finally, all attorneys owe their clients the duty to keep all confidential information secret. Although many times in the elder law area confidential information may be shared with family members, those disclosures are permitted only under an exception to the confidentiality provisions of the Model Rules of Professional Conduct.

II How Do We Identify the Client?

As the attorney begins to talk to the elderly woman and her daughter, the daughter begins to ask questions about the will and a power of attorney. She is also interested in the property settlement that mom recently received from the sale of some business property owned by her late husband. The attorney begins to discuss with the daughter the tax liability on the settlement.

NAELA Aspirational Standard A.1 states:

The Elder Law Attorney . . . [g]athers all information and takes all steps necessary to identify who the client is at the earliest possible stage and communicates that information to the persons immediately involved.5

However, the standards are not specific about what information should be gathered and what steps should be taken to identify the client. The comment to the standard explains:

Accordingly, the identity of the “client” must be clarified at the earliest stage so that the attorney (a) understands and identifies whose interests are being addressed in the legal planning and legal representation process, (b) understands and clarifies to whom the attorney has professional duties of competence, diligence, loyalty, and confidentiality, (c) clarifies what steps can and cannot be taken after an initial consultation if the client is not present, and (d) arranges at the earliest possible time for private, direct and personal communication with the client, preferably face to face.6

Therefore, the client is the person whose interests are being addressed in the representation. However, that is not clear, because other people in the planning process might believe that they also have an interest in the representation. For example, if an elderly individual is attempting to preserve assets by gifting them away in order to qualify for Medicaid, the children or other people who receive the gifts also have an “interest” in the representation.7 Additionally, defining the client to whom the attorney owes a duty is rather circuitous. The NAELA Aspirational Standards give very little guidance as to how to define who is the client; however, they direct the attorney to gather information in order to make that determination.8

Therefore, the attorney must look elsewhere for guidance on how to isolate the client from the other “interested” people. There are six categories of information that the attorney should gather. First, information should be gathered about the nature of the services requested, including what documents will be created and who will sign them. Second, the attorney must consider whose confidential information will be obtained in order to perform the services requested. Third, the attorney must explore and determine the relationship of different parties to the services being rendered in the representation. Fourth, the attorney should gather and consider information about how the individuals came to the attorney’s office. Fifth, the attorney needs to determine who will be paying for the services. Finally, the attorney should identify and consider who has the right to terminate the attorney.9

The initial information that will help identify the client is the service requested of the attorney and the person who will sign any drafted documents. For example, if a fiduciary retains an attorney to guide him in administering a trust and preparing the annual reports, then the client is the fiduciary, not the trust or the beneficiaries.10 If the individuals seek assistance in setting up a trust to benefit a third party, then the grantor of the trust is the client. On the other hand, if the person seeking the attorney is the beneficiary of the will and wishes to dispute the trust, then the client is the beneficiary, not the grantor. Of course, the confusion comes when the people approaching the attorney are seeking a service that benefits different people and the benefits are somewhat in conflict, or at least not consistent. In the situation described above, the initial meeting was set up to create a will for the elderly mother; therefore, when the meeting started, the client would clearly be the mother. However, as the attorney and parties continued to talk, the daughter began to seek advice about her individual tax consequences, and those services or answers would be for the daughter and might, in fact, be in conflict with the mother’s desires.

The clearest indication of who is the client is the consideration of who will be signing any documents that are created. The person who will be required to sign the documents in order to complete the service being sought is usually going to be the client, regardless of who is seeking the document. If the document will be transferring property, then the individual who must sign the documents to complete the transfer is the client. However, not every representation will involve documents.

The attorney must also consider what information will be needed to carry out the representation and who that information is about. Both the confidentiality rules and client/attorney privilege rules recognize the importance of candid information to the client/attorney relationship. By identifying whose information the attorney needs, he or she can identify who is the client. For example, if the attorney needs a full picture of all the individual’s assets in order to complete the representation, then the individual who owns those assets will normally be the client.

Another factor is how the appointment was set up and who has come to the meeting. Although not a definitive factor in who is represented, how the individuals came to be in the lawyer’s office can be valuable information. The attorney needs to gather information on who suggested that they consult an attorney, who decided on this attorney, and who called the office to schedule the appointment. Recognize that it is important not only who the attorney thinks is the client, but also who the other people in the attorney’s office think is the client. Additionally, the attorney needs to understand the role and relationship of each person who is present in the meeting. He needs to gather information as to what each person believes is his or her part of the attorney’s representation. Although how the appointment came about and who is at the first meeting are not defining factors, they certainly give the attorney an understanding of the expectations of everyone involved in this representation. An attorney must understand those expectations before he can explain to the people present in his office whether those expectations are accurate or inaccurate.

Another important issue in determining who is the client is to know who is paying for the attorney’s services. Although again this is not definitive to the client inquiry, it is another factor in understanding the interrelationship of all those “involved” in the representation. Although Model Rule of Professional Conduct 1.8(f) allows representation to be paid for by a non-client, it has three requirements, which will be discussed later in this chapter.

Finally, who will have the authority to terminate the relationship is a prime example of a right of a client. The Louisiana Supreme Court, in Succession of Wallace,11 found that the client is permitted to terminate the client/attorney relationship for any reason or no reason.12

The Wallace court found a statute unconstitutional that stated attorneys named by the testator could be terminated only for “cause.”13 The court held that the executor of a will could terminate the attorney named in the will because she was the client.14 By determining who must sign the engagement letter15 and who can terminate this relationship, the attorney will be able to answer the question “who is the client?”

In the area of Medicaid planning, identifying the client is paramount.16 When the attorney is contacted by individuals who do not own the assets to be transferred or the purported recipients of the transfers, the attorney must make it clear who she represents.17 The case of McMichael v. Flynn18 is a sad example of the inherent conflict. In Flynn, the elderly mother transferred her 114-acre farm to her daughter in exchange for the daughter’s agreement that she would care for her mother for the remainder of the mother’s life. When the mother successfully sued to set aside the transfer, the daughter appealed and claimed that the mother had acted with “unclean hands” because she had transferred the property for purposes of defrauding the government, even though the daughter was the mastermind behind the original transfer.19 The elderly client ultimately won, however this case exemplifies the need to represent the elderly client without involvement from the recipient of the property.20

1 David M. Rosenfeld, Whose Decision Is It Anyway?: Identifying the Medicaid Planning Client, 6 ELDER L.J. 383, 385 (1998).

NAELA Aspirational Standard A.1 cmt., at 7 .

See generally MODEL RULES OF PROF’L CONDUCT R. 1.1–1.18.

4 Id. at 1.7 cmt. 1.

NAELA Aspirational Standard A.1.

6 Id. at cmt. at 7–8.

See Rosenfeld, supra note 1 at 387.

NAELA Aspirational Standard A.1 cmt. at 7–8.

Succession of Wallace, 574 So. 2d 348, 352 (La. 1991); ABA MODEL RULES OF PROF’L CONDUCT R. 1.16(a)(1); see also Recommendations of the Joint Conference on Legal, Ethical Issues in the Progression of Dementia, 35 GA. L. REV. 423, 442 (2001). These recommendations suggest the following questions be considered:

  1. Who has the legal problem?
  2. Who benefits from the proposed course of action?
  3. Who needs special protection?
  4. Who made the appointment?
  5. Who communicates with the lawyer, attends meetings, makes phone calls?
  6. Who perceives themselves as the client(s)?
  7. Who provides the substantive information relevant to the decision making?
  8. Who paid the bill?
  9. Who is the focus of the proposed action?
  10. Who signed the retainer agreement?

10  The issue of who is the client in fiduciary representation is discussed more fully in Chapter 7. See, e.g., Borissoff v. Taylor & Faust, 93 P.3d 337, 340 (Cal. 2004); Wells Fargo Bank v. Superior Court of L.A. County, 990 P.2d 591 (Cal. 2000); First Union Nat’l Bank of Fla. v. Whitener, 715 So. 2d 979 (5th Dist. Ct. App. 1998).

11 574 So. 2d 348 (La. 1991).

12 Id. at 352.

13 Id. at 355.

14 Id.

15 NAELA Aspirational Standard A.3 suggests the engagement letter:

  • identifies the client(s);
  • describes the scope and objectives of representation;
  • discloses any relevant foreseeable conflicts among the clients;
  • explains the lawyer’s obligation of confidentiality and confirms that the lawyer will share information and confidences among the joint clients;
  • sets out the fee arrangement (hourly, flat fee, or contingent); and
  • explains when and how the client/attorney relationship may end.

16 See generally Rosenfeld supra note 1. Katherine C. Pearson, The Lawyer’s Ethical Consideration in Medicaid Planning for the Elderly: Representing Smith and Jones, 76 PABAQ 1 (2005).

17 Patricia B. Rumore, Elder Law: Pitfalls for the Unwary, 58 ALA. LAW., at 160 (1997) (suggesting that a conflict of interest arises when an attorney represents both the person transferring the property and the people receiving it). See also Lynch v. Hamrick, 968 So. 2d 11 Ala. (2007) (court found a waiver of client/ attorney privilege because beneficiary was present during the meeting and was not necessary to the representation).

18 686 So. 2d 254 (Ala. Civ. App. 1995), cert. quashed, Ex Parte McMichael, 686 So. 2d 257 (Ala. 1996) (as described in Rosenfeld, supra note 1, at 392–394).

19 Rosenfeld, supra note 1, at 391–392.

20 See also A. Kimberly Dayton, et al. Ethical Issues Arising under the Model Rules of Professional Conduct, 1 ADVELD § 3:8 (2012). ■