June 26, 2018

Ethics in the Practice of Elder Law

By Donna Jackson

The practice of elder law presents a myriad of ethical dilemmas.

Counseling clients who are potentially vulnerable due to age, disability, or incapacity requires attorneys practicing in elder law to ensure their client’s needs are protected while appropriately maintaining the client’s autonomy and independence as much as possible.

Although there are numerous, conceivable ethical predicaments, this article specifically addresses the attorney’s ethical duty in: identifying who the attorney’s client is and providing proper service to that client, appropriately handling any conflicts of interests that may arise in representation in the practice of elder law, and the representation of incapacitated clients.

Identifying Who Your Client Is

Aging, disability, and incapacity are a family affair. It is not uncommon for clients needing the assistance of an elder law attorney to have family members involved in the process. Sometimes these family members are even the ones setting appointments and driving the client to meet with the attorney. Even if there is no attorney-client relationship formed with certain parties involved during the initial client meeting, attorneys still owe a duty of confidentiality and avoidance of conflicts to every prospective client. An attorney must assume that everyone sitting at the table believes the attorney is their attorney, making it crucial to identify who the actual client is early on and asserting to those involved who the client is.

Because of the familial nature of elder law practice, identifying the client begins with the initial scheduling of an appointment. When a person calls to set up an appointment, it is important to identify: who the caller is, who documents will be created for, who will be present at the initial meeting, and what the role each of those present at the initial meeting will be playing. While one must ask the general nature of the legal help needed, one should avoid talking about specific details of the representation and giving any legal advice—as the caller may not be the client.

At the initial meeting, it is important for the attorney to identify who the client is. Some important questions to ask during the initial scheduling and/or appointment may be who is establishing the trust or writing a will, or whose money is at issue in tax or Medicaid planning.

Addressing Conflicts of Interest

Even though family members may be involved in assisting their loved one, or the attorney may be representing clients jointly, it is important the attorney avoids any conflicts of interests. Determining who the client is upfront and communicating that to the family will help the attorney mitigate potential conflicts of interests at the beginning of representation. After the attorney identifies who the client is, it is best to ask to speak to the client privately in order to determine whether they have any existing conflicts of interests and to allow the client to share confidential information.

However, if an attorney represents clients jointly then the attorney must take extra steps to ensure that all clients involved understand how the joint representation will operate. If a conflict of interest does arise during the representation that materially affects the attorney’s duty to either client, the attorney must withdrawal representation.

Beyond the issue of family members assisting their loved one in obtaining an elder law attorney and accompanying them to the meetings, a family member may also pay for the attorney’s fees. When that third party pays the attorney’s fees directly, there are special rules an attorney must follow to avoid any conflicts of interest. It is important the attorney explain that they only represent the client. Furthermore, the person paying the attorney’s fee must understand that the client sets the objectives of representation, and information from the client must be kept confidential by the attorney outside of certain extreme circumstances. After explaining this to the person paying and the client, the attorney must obtain informed consent from the client in writing. These mandatory precautions ensure the attorney’s independence in judgment and protection of the client and his or her wishes.

Clients with Diminished Capacity

Capacity may be diminished because of minority, mind-altering substances, disability, or some other mental or physical illness. While diminished capacity is not certain, it is likely the elder law attorney will have a question about advising a client with diminished capacity at some point during his or her career.

In determining the capacity of a client, the comments to rule 1.14 of the Rules of Professional Conduct give a list of factors for the attorney to consider: “the client’s ability to articulate reasoning leading to a decision, variability of state of mind and ability to appreciate consequences of a decision; the substantive fairness of a decision; and the consistency of a decision with the known long-term commitments and values of the client.” It may also be helpful for the attorney to obtain information or verify information a client has given the attorney by speaking to third parties. An attorney may not disclose information from the client, but the attorney may want to listen to what others have to say when working with clients that have declining capacity to help gauge a client’s capacity.

Rule 1.14 of the Rules of Professional Conduct further directs the attorney to “maintain a normal client-[attorney] relationship with the client” “as far as reasonably possible.” Although maintaining this normal relationship may not be possible with “severely incapacitated person[s]”, who have “no power to make legally binding decisions[,]…a client with diminished capacity often has the ability to understand, deliberate upon, and reach conclusions about matters affecting the client’s own well-being.”  Regardless, the attorney always has an “obligation to treat” client’s with diminished capacity “with attention and respect.”

In situations where the attorney is reasonably concerned the client with diminished capacity, the attorney is permitted to take “reasonably necessary protective action.” However, when taking protective action, the attorney must be careful in considering whether disclosure of information about the client’s capacity to certain persons will result in those persons acting “adversely to the client’s interests.” Ultimately, the attorney should support the client in making his or own decisions as much as the attorney can.

The practice of elder law involves peculiar ethical issues, but an attorney who has a system in place to deal with these challenges can ethically and proficiently represent clients that are potentially vulnerable due to age, disability, or incapacity. At the core of an elder law attorney’s ethics should be the desire to advance his or her client’s rights of independence and autonomy. By appropriately identifying who the client is in the initial stages of representation, addressing any potential conflicts of interests upfront, and always treating the client with attention and respect—no matter the client’s capacity—the elder law attorney can ethically advocate for his or her client.

Donna Jackson

Donna J. Jackson, CPA, JD, LLM, is the principal at Donna J. Jackson & Associates in Oklahoma City. Her practice focuses on estate planning and tax law, and she has a deep experience with estate planning, including trusts, wills, and business succession planning