Published in the National Academy of Elder Law Attorneys Journal (Spring 2018)
Co-written by Robert C. Anderson
Standard B, Client Identification, Section 1, of the NAELA Aspirational Standards states that the elder and special needs law attorney:
Identifies the client and the individuals who will assist the client at the earliest stage of the representation, obtains the client’s agreement on these identifications, and communicates this information to the persons involved.
The issue of client identification is foundational and unique to the ethical practice of elder and special needs law. After all, it is the first step in forming the attorneyclient relationship. Identifying the client establishes to whom the attorney owes the professional duties of competence, communication, diligence, loyalty, and confidentiality. It is the client’s objectives thatguide the representation. The attorney is required to consult with the client about the means by which such objectives are to be pursued, and ultimately the attorney must abide by the client’s decisions.
Identifying the client is so crucial that NAELA introduces the topic as a separate Aspirational Standard, immediately after Standard A, Holistic Approach. The other Standards, such as Standard D, Conflicts of Interest, and Standard E, Confidentiality, naturally fit once the often-tough decision of identifying who the client is has been accomplished. By contrast, the topic of client identification appears as a separate canon neither in the American Bar Association (ABA) Model Rules of Professional Conduct nor in the American College of Trust and Estate Counsel’s Commentaries on the ABA Model Rules. The ABA Model Rules, however, do provide some discussion on the topic in Model Rule 1.7, Conflicts of Interest. The NAELA Aspirational Standards’ pre-eminent treatment of client identification, therefore, is unique among national publications on legal ethics. This is partly because of the unique aspects of elder and special needs law.
In the conventional method of establishing an attorney-client relationship, client identification is typically a simple and obvious matter. A prospective client arranges an initial meeting with an attorney to discuss how to protect his or her property, welfare, and other interests. After an initial private meeting with the attorney, the prospective client retains the attorney, defines the scope of the representation, and participates in the representation. The attorney then understands to whom the attorney owes the professional duties mentioned previously.
In elder and special needs law, however, client identification and the attorney engagement process is often considerably different. The following hypothetical, from Professor Donna Harkness’ Elder Law Essentials, describes how challenging a typical elder law representation can be:
Hypothetical: Imagine that you are a lawyer in general practice. A former client you assisted in obtaining child support in the divorce calls you and says that her father needs your help in making sure that his house is in good hands if something should happen to him.
The former client explains to you that her father is a widower and that he wants to deed the house to her. You agree and tell her you can have it ready next week, and a meeting is scheduled. After obtaining current title information from the register of deeds for the property, you prepare the deed and they arrive at the appointed time. The father is elderly but seems to be in good health and appears to be competent. You hand the quit claim deed to the father and tell him that it gives the house to his daughter. The daughter pipes up and says, “You know, daddy, just in case something ever happens to you.” He signs the deed, you notarize it, he pays your fee. Everything seems happy.
Eight months later, you receive a call from the elderly gentleman, very upset, saying that a home equity loan application that he made has been denied because he doesn’t own his home. You advise him that this is true because he gave the house to his daughter at his instruction. He is outraged, saying that he only meant to give the house to her if something happened to him, which is far as he was concerned, meant after he died. He accuses you of tricking him and hangs up, saying you haven’t heard the end of this. Almost immediately thereafter, you receive a call from the daughter, saying that her father has taken leave of his senses, and needs to be placed in a nursing facility. You ask her about the house, and she tells you that she intends to put it up for sale, because she needs some extra money. You ask her if she would be willing to give the house back to her father — she angrily asks you “Whose side are you on?” and hangs up the phone. You then receive a call from the father’s new attorney. At this point, you may be wondering who your client is and why you declined the chance to become a NAELA member?
II. Who Is the Client?
This is the type of scenario that regularly plagues attorneys in our practice. Identifying the client is challenging for us because the individual whose property, welfare, and other interests are to be protected may not be present at the initial meeting and if present, he or she may be accompanied by family members, an appointed fiduciary, or other third parties. Also, the individual may not have sufficient capacity to retain the attorney, establish the scope of representation, and participate in the attorney-client relationship. This raises a potential dilemma.
Can a person who lacks capacity enjoy or benefit from the professional duties of competence, communication, diligence, loyalty, and confidentiality? On the other hand, if an individual has established a durable power of attorney, has that individual not planned for this exact scenario and appointed a fiduciary to step into his or her shoes and thus enjoy or benefit from the professional duties on behalf of the incapacitated person?
The purpose of this article is not to answer the question of who your client is but rather to provide steps to take, questions to ask, and alternative solutions to help you answer the question. The Standards stress that there is no cut-and-dried answer to the question. Regardless of who is identified as the client, the attorney should be vigilant in protecting the individual whose property, welfare, and other interests are the subject of the representation.
Standard B, Client Identification, Section 2, states that the elder and special needs law attorney:
Recognizes the unique challenges of identifying the client when a fiduciary is acting on behalf of a protected individual.
A. Determine Whose Interests Are at Stake
When family members, friends, or a fiduciary such as an agent under power of attorney are involved, the first step is to answer this question: “Whose property, welfare, and other interests are at stake?”
In the Standards, this person is called the “protected individual” and in most cases, this individual should be treated as the client — even if he or she lacks the capacity to retain the attorney. With regard to representing a client with diminished capacity, ABA Model Rule 1.14, Comment 2, provides, “Even if the person has a legal representative, the lawyer should as far as possible accord the represented person the status of client, particularly in maintaining communication. In other cases, an involved family member, friend or fiduciary may be selected as the client.”
Another problem when persons other than the protected individual are involved is that these individuals may believe that they are the client. Therefore, it is vital that the attorney resolve the issue of who the client is as early as possible, usually before an engagement agreement is finalized. The engagement agreement should affirmatively state who the client is.
In practice, the attorney should develop methods with staff to identify the client, such as using an intake form and having the staff member who schedules the initial meeting ask questions.
When the attorney is confronted with a room full of people at the initial meeting, the attorney could ask “Who do you think the client is?” as a way to introduce the issue and achieve resolution as early as possible.
B. Meet Privately With the Prospective Client
Standard B, Client Identification, Section 3, states that the elder and special needs law attorney:
Meets with the prospective client in private at the earliest practicable time to help the attorney identify the client and assess the prospective client’s capacity and wishes as well as the presence of any undue influence.
The second critical step when persons other than the protected individual are involved is to meet with the protected individual privately at the outset. A private meeting helps the attorney assess the protected individual’s capacity, his or her wishes, and the presence of undue influence from others. If the prospective client refuses to meet privately, the attorney should honor that request and include the person the prospective client authorizes to be present. However, if the presence of undue influence is clearly present, the attorney should either decline or withdraw from the representation.
Once the client is identified, the attorney should, when appropriate, seek the client’s written consent authorizing the attorney to speak with or share client information with others involved in the representation. A sample consent form appears on the previous page of this article. Otherwise, the attorney has no authority to speak to or share client information with others.
III. Representing a Client With Diminished Capacity
As discussed previously, the attorney must abide by the client’s decisions concerning the objectives of the representation. This notion is important if the client appears to be suffering diminished capacity. In discussing the options available to accomplish the client’s objectives, the attorney must provide the client with explanations reasonably necessary to permit the client to make informed decisions.
Although an incapacitated person may not have the legal capacity to make legally binding decisions, a client with diminished capacity may have the ability to understand and make certain decisions. As may be the case in some elder and special needs legal matters, the appearance of diminished capacity should not make the attorney lose sight of the identity of the client and the person to whom the attorney owes a professional responsibility. Rather, appearance of diminished capacity may heighten the attorney’s responsibility to provide reasonably necessary explanations to the client to ensure that his or her decisions are informed.
The attorney is often confronted with the role of determining a client’s capacity, and it is critical that the attorney enhance the client’s capacity to the extent possible. The comments on ABA Model Rule 1.14 acknowledge that it can be appropriate to differentiate the degree of a client’s capacity: “For example, children as young as five or six years of age, and certainly those of ten or twelve, are regarded as having opinions that are entitled to weight in legal proceedings concerning their custody. So also, 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.”
IV. Why Joint Representation Is Not Usually Recommended
Generally, it is not advisable for an attorney to represent two or more persons. This is because one cannot have two “masters,” who are unlikely to have the same interests and goals. An exception in many cases is a married couple with common interests and goals. This topic involves the issue of conflict of interest, which is covered in Standard D, Conflicts of Interest.
About the Authors:
Robert C. Anderson, CELA, CAP, is a member of the NAELA Professionalism and Ethics Committee and a former member of the NAELA Board of Directors.
Whitney A. Gagnon, Esq., is a member of the NAELA Professionalism and Ethics Committee.