Ethical Wrinkles In Elder Law

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1 Ethical Wrinkles In Elder Law Devika Kewalramani There is one rule to follow above all others: Proceed with extreme caution. Devika Kewalramani is a partner and co-chair of Moses & Singer s Legal Ethics & Law Firm Practice which advises law firms, lawyers and legal departments on ethical, legal and business aspects of law practice. Devika s practice focuses on the laws that regulate lawyers and she counsels on a variety of issues relating to legal ethics, professional responsibility, partnership and fee disputes, risk management and loss prevention. She conducts ethics audits for midsize and boutique law firms and develops risk management compliance manuals for the firms. A frequent lecturer, panelist and author on legal ethics, Devika speaks to corporate legal departments, law firms, bar associations and other professional organizations around the country on conflicts of interest, engagement letters, attorney advertising via blogs, websites and social media, unauthorized practice of law, virtual law offices and cloud computing. The editor of the New York State Bar Association s Journal magazine recognized Devika as an author with one of the best written articles for 2010 with Up Close and Professional With New York s Engagement Letter Rules (September 2010). She is also a faculty member of the Practising Law Institute and of Lawline.com. David Rabinowitz, a partner and co-chair of Moses & Singer s Litigation practice, contributed editorial assistance in the preparation of this article. The author can be reached at Elder law practice presents unique ethical issues. The clients are often physically or mentally impaired. Non-impaired clients can hire a lawyer, waive conflicts of interest and consent to joint representation, but clients suffering age-related disabilities may be unable to make these decisions regarding the representation and to communicate them to the lawyer. The possibility that a client is suffering age-related disabilities triggers concerns regarding client capacity, client confidences, and conflicts of interest. CONVENTIONAL RELATIONSHIP, EXTRAOR- DINARY POWERS Counsel to an elderly client has extraordinary power to act on behalf of the client without the client s consent when the client is helpless and in danger. The ABA Model Rules of Professional Conduct deal with clients with diminished capacity in Model Rule No equivalent Disciplinary Rule existed under New York s prior Code of Professional Responsibility until April 2009, when the New York Rules of Professional Conduct ( Rules ) were adopted, and New York s version of Model Rule 1.14 came into effect. 22 NYCRR 1200, et The Practical Lawyer 21

2 22 The Practical Lawyer October 2012 seq. Neither rule narrowly focuses on aging clients. Instead, both rules broadly apply to clients with diminished capacity that may be caused by minority, mental impairment or some other reason. Agerelated mental impairment appears to fall within the parameters of Rule New York Rule 1.14(a) provides that an attorney s professional relationship with a client who has diminished legal or mental capacity must be conventional to the extent reasonably possible. (ABA Model Rule 1.14 requires this relationship to be normal. ) However, if the lawyer reasonably believes that the client: (i) has diminished capacity; (ii) is at risk of substantial harm unless action is taken; and (iii) cannot adequately act in the client s own interest, then the lawyer may take reasonably necessary protective action. Protective action by the lawyer can include, but is not limited to, consulting with individuals or entities that have the ability to take action to protect the client and even, in appropriate cases, seeking appointment of a guardian or conservator. Rule 1.14(b). When protective action is appropriate, the persons or entities with whom the lawyer can consult include, without limitation, family members, support groups, or professional services. Comment [5] to Rule When the lawyer resolves to take protective action, disclosure of client confidences is permitted without, or contrary to, client directions. Comment [8] to Rule However, because such disclosure violates a normal and important rule of attorney conduct, the right to disclose client confidences is limited to disclosures that are reasonably necessary to protect the client s interests. Rule 1.14(c). Comment [8] to Rule 1.14 says, in this connection, At the very least, the lawyer should determine whether it is likely that the person or entity consulted will act adversely to the client s interests before discussing matters related to the client. How does the lawyer determine if there is sufficient diminution of client capacity and sufficient danger to the client to justify protective action? Comments to Rule 1.14(a) give the following guidance: [4] If a legal representative has already been appointed for the client, the lawyer should ordinarily look to the representative for decisions on behalf of the client. [6] In determining the extent of the client s diminished capacity, the lawyer should consider and balance such factors as: (i) the client s ability to articulate reasoning leading to a decision, (ii) variability of state of mind and ability to appreciate consequences of a decision; the substantive fairness of a decision, and (iii) the consistency of a decision with the known long-term commitments and values of the client. In appropriate circumstances, the lawyer may seek guidance from an appropriate diagnostician. [7]... The lawyer should always consider less restrictive protective actions before seeking the appointment of a guardian or conservator. The lawyer should act as petitioner in such a proceeding only when no other person is available to do so. Despite this guidance, the standard for taking protective action has an inherently large grey area, and the wise attorney will act very cautiously. CLIENT S CAPACITY TO RETAIN COUN- SEL Although the law generally presumes that all adults have sufficient decision-making capacity to retain counsel, age-related diseases can limit or even eliminate an elderly client s ability to function as a client. A certain degree of competency to act as a client is impliedly required by the Rules. For example, Rule 1.2(a) requires a lawyer to abide by the client s decisions regarding the representation, and Rule 1.4(b) requires the lawyer to explain the matter sufficiently to permit the client to make informed decisions regarding the representation. Consequently, a lawyer may not be able to establish

3 Elder Law 23 a client-lawyer relationship if the older person does not have adequate legal capacity. Suppose a client apparently competent at the outset of the client-lawyer relationship becomes or is discovered to be impaired during the representation. What is the lawyer to do? ABA Informal Opinion (1989) concluded that where a lawyer reasonably believed his client s medical condition resulted in his inability to communicate or to reach adequately informed decisions regarding the representation, he could consult the client s physician regarding the suspected disability without the client s consent. Comment [7A] to Rule 1.14 notes, Prior to withdrawing from the representation of a client whose capacity is in question, the lawyer should consider taking reasonable protective action. See Rule 1.16(e). (Rule 1.16(e), referred to in this Comment, requires that a withdrawing lawyer avoid foreseeable prejudice to the client.). CONFLICTS OF INTEREST: INVOLVE- MENT OF OTHERS IN THE ELDER S AF- FAIRS Assuming that the elderly client has the capacity to retain counsel, conflicts of interest peculiar to elder law may arise. Rule 1.7(a) prohibits a lawyer from representing a client if a reasonable lawyer would conclude that either (1) the representation will involve the lawyer in representing differing interests or (2) there is a significant risk that the lawyer s professional judgment on behalf of a client will be adversely affected by the lawyer s personal interests. A conflict is curable if the lawyer reasonably believes he will be able to provide competent and diligent representation to each affected client and each client gives informed consent confirmed in writing. Rules 1.7(b) and 1.0(f) ( differing interests definition). Discussed below are some common conflicts scenarios facing elder law practitioners. Who Is The Client? The very identity of the client may be in question. Normally simple representations may be complicated for elders by the existence of caregivers, such as a spouse or adult children. Comment [3] to Rule 1.14 states, The client may wish to have family members or other persons participate in discussions with the lawyer. The lawyer should consider whether the presence of such persons will affect the attorney-client privilege. Nevertheless, the lawyer must keep the client s interests foremost and, except for protective action authorized under paragraph (b), must look to the client, and not family members, to make decisions on the client s behalf. Caregivers may have their own interests concerning the elder s property (and even concerning the elder personally), which may or may not coincide with the elder s interests. Caregivers may wish to attend the elder s meeting with the lawyer or act as intermediary between the elder and the lawyer. Caregivers may be joint owners of property with the elder, or hold a decision-making proxy or power of attorney. Because of intertwined property and personal interests of caregivers and elders, the potential clients may seek joint representation. Although Rule 1.7 does not explicitly contemplate the family as a client, representation of multiple family members or even generations is permitted if each person gives informed consent after the lawyer discloses the implications of common representation and the advantages and risks involved. For these reasons, it is critical that the lawyer establish at the very outset who the client is (and who isn t), and reduce it to writing. The attorney should not represent both the elder and other family members unless it is clear that all of their interests are aligned and that they all consent to the common representation. Where either of these matters is not clear, it may be necessary to advise the associated persons to secure sep-

4 24 The Practical Lawyer October 2012 arate counsel. See Rule 4.3 (communicating with unrepresented persons). If the elder is to be the sole client, it is necessary to restrict the lawyer s interactions with associated persons to avoid violating the duty of loyalty to the client, to protect the elder s right to confidentiality and to preserve the attorney-client privilege. In addition, the lawyer should make it clear that other family members are not clients, to avoid any misunderstanding of the lawyer s role in the representation. Third Party-Paid Fees Assume a son asks a lawyer to represent his father in estate planning matters and offers to pay the legal fees. Under Rule 1.8(f), a lawyer is prohibited from accepting compensation from a third party unless the client consents, the third party does not interfere with the lawyer s independent professional judgment or the client-lawyer relationship, and client confidences are protected as required by Rule 1.6. Here, the lawyer should send an engagement letter to the father because it is the father s interests that the lawyer is asked to protect. As a best practice, the lawyer should also obtain an acknowledgment from the son, clarifying that he understands that the lawyer does not represent the son s interests. See Rules 1.7(a) and 4.3. Spouses With Secrets It is not unusual for married couples to jointly consult with a lawyer on estate planning matters. A spouse may separately reveal to the lawyer a secret that the spouse asks the lawyer to conceal from the other spouse, e.g., an illegitimate child unknown to the other spouse. If the lawyer is retained to jointly represent the couple, he is under no duty to protect confidences of one spouse from the other, and under the circumstances, he may be compelled to withdraw from representing one or both spouses. One way for lawyers to try to defuse such situations at the outset is to send a written conflicts waiver letter to the potential clients before an initial meeting, explaining potential conflicts, their possible consequences and means of avoiding them. Parent-Child Sensitivities Suppose a lawyer is asked to represent both a daughter and her mother in estate planning matters. Assume that the mother tells the lawyer about a joint bank account she established with her son to facilitate handling of her financial affairs. The mother s plan to split her estate between her daughter and son may be jeopardized by her son s ability to deplete the account for his benefit. Should the lawyer disclose this to the daughter? Again, the lawyer may have to withdraw from the joint representation given the conflict, always observing the rules protecting confidences in such cases. See Rules 1.6 (confidentiality generally); 1.9(c)(2) (former client s information); 1.16(e) (avoiding prejudice to client upon withdrawal from representation). Caregivers Who Don t Care In some situations, it may become clear that a caregiver participating in discussions with the lawyer and the elderly client is mainly interested in protecting the client s assets for his or her own benefit. This presents a conflict because the caregiver does not own the assets, but does not wish to see them expended for the client, who does own them. Any action taken must be done in the name of and for the benefit of the elder, who is the client. The conflict can be even more troublesome if the client is unable to waive conflicts. If the conflict is apparent at the initial meeting, the lawyer may have to decline taking the matter. Powers Of Attorney Suppose a son comes to the attorney s office and says his mother is bedridden and suffering from Alzheimer s disease, and that she wishes to sign a power of attorney anticipating her incapacity. The lawyer could prepare a durable power of attorney

5 Elder Law 25 and include liberal powers over the elder s property. But is it sufficient to prepare the power and hand it to the son for the mother s execution, or must the lawyer talk to the mother? Who is the lawyer representing? If the mother is to be the client, the lawyer should be concerned with her capacity to appoint an attorney-in-fact (and to retain an attorney-atlaw). If the lawyer only agrees to represent the son, the lawyer does not appear to have any duty directly to the mother. Note, Scope [9] of the Rules provides, for purposes of determining the lawyer s authority and responsibility, principles of substantive law external to these Rules determine whether a client-lawyer relationship exists. Most of the duties flowing from the client-lawyer relationship attach only after the client has requested the lawyer to render legal services and the lawyer has agreed to do so. Lawyer s Self-Interest: Guardianship New York State Bar Opinion 746 (2001) concluded that a lawyer for a disabled client who is also serving as his attorney-in-fact should not petition for the appointment of a guardian without the client s consent, unless the lawyer determines that the client is incapacitated, there is no practical alternative through the use of the power of attorney or otherwise to protect the client s best interests, and no one else is available to serve as petitioner. Subject to conflicts of interest restrictions, the lawyer may represent himself in the proceeding if the client does not oppose the petition and the lawyer will not be a witness. ABA Formal Opinion (1996) observed that a lawyer for an incapacitated client may file or support a petition for appointment of a guardian. Unlike the State Bar Opinion above, the ABA opinion did not put conditions on the lawyer s ability to petition. Interestingly, the ABA opinion noted that the lawyer might be reluctant to petition because of his general duty of loyalty and his specific obligation under Model Rule 1.14 to maintain as normal as possible a relationship with an incompetent client. The opinion distinguished petitioning for and supporting the appointment of a guardian from representing the third-party petitioner, which would present a conflict of interest under Model Rule 1.7. The opinion cautioned that a lawyer should not seek to be the guardian except in the most exigent of circumstances. CONCLUSION: ETHICS IN THE GREY AREA The declining powers of the aged and their dependency on caregivers present complex ethics issues for elder law practitioners. There are few bright-line rules. Lawyers practicing elder law must proceed with extreme caution on issues of representation and keep a sharp eye out for the possibly conflicting interests of those around the elderly client, the lawyer included. To purchase the online version of this article or any other article in this publication go to and click on Publications.

6 Disclaimer Viewing this or contacting Moses & Singer LLP does not create an attorney-client relationship. This is intended as a general comment on certain developments in the law. It does not contain a complete legal analysis or constitute an opinion of Moses & Singer LLP or any member of the firm on the legal issues herein described. This contains information that may be modified or rendered incorrect by future legislative or judicial developments. It is recommended that readers not rely on this general guide in structuring or analyzing individual transactions or matters but that professional advice be sought in connection with any such transaction or matter. Attorney Advertising It is possible that under the laws, rules or regulations of certain jurisdictions, this may be construed as an advertisement or solicitation. Copyright 2012 Moses & Singer LLP All Rights Reserved

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