About NAELA's Aspirational Standards for the Practice of Elder and Special Needs Law

The following is an excerpt from an article that was printed in the February/March 2013 issue of NAELA News

Aspirational Standards for the Practice of Elder Law Distinguish NAELA Members from Other Attorneys

By Gregory S. French, CELA, CAP

NAELA is the only association of attorneys that conditions membership on a commitment to aspirational standards that exceed the American Bar Association’s Model Rules of Professional Conduct. Since its inception, NAELA has emphasized the importance of legal ethics in the practice of Elder and Special Needs Law.

Adopted by the NAELA Board of Directors in 2005, the Aspirational Standards were written to help NAELA members meet the challenge of NAELA’s Mission — to be the premier providers of legal advocacy, guidance, and services to enhance the lives of people with special needs and people as they age — as well as meet the particular ethical challenges faced when serving clients who can be among society’s most vulnerable. Attorneys who meet NAELA’s Aspirational Standards elevate their level of professionalism and enhance the quality of their service to clients.

Client Identification: The Standards call for us to identify the client at the earliest possible stage and to communicate that information to all persons immediately involved. They urge us to utilize engagement agreements that identify our client, describe the scope of our representation, and disclose any foreseeable conflicts.

Conflict of Interest: When involved with multiple family members, the Standards call for us to ensure that all understand who the clients are. When considering joint representation, the Standards urge us to review the advantages and disadvantages and foreseeable conflicts of interest. The Standards call for us to treat family members who are not clients as unrepresented persons. They permit us to accept fees from a third party only after determining that our independent professional judgment will not be influenced. They permit us to serve as fiduciary for our clients, but only if in our client’s best interest.

Confidentiality: The Standards call for us to explain confidentiality to clients and involved parties as early as possible. They preclude keeping secrets from clients who are being jointly represented. They warn us to preserve confidentiality, especially with family members and caretakers.

Competent Representation: The Standards recommend the holistic representation of clients, recognizing the importance of involving support groups and aging network resources. They require us to provide our staff with the knowledge and skills needed to best serve our clients.

Client Capacity: The Standards call for us to develop skills and processes to make and document assessments of client capacity. The interview environment, timings of meetings, and decision-making processes should maximize client capacity. We should protect clients who have diminished capacity and are at risk of substantial harm. Any protective action should minimize intrusion into the client’s decision-making autonomy and maximize client capacity. We should recommend guardianship or conservatorship only when all possible alternatives will not work. If a conflict arises between a fiduciary we represent and a person with diminished capacity, we may disclose confidential information if necessary to avoid substantial harm.

Communication: The Standards call for us to maintain direct communication with our clients. They suggest ways we can communicate with clients so they readily can understand. They ask us to counsel our clients regarding asset preservation strategies in light of client needs, values, and alternatives.

Marketing: The Standards ask us to consider the potential vulnerability of our marketing audience to undue influence. They urge that we not engage in uninvited in-person or telephone solicitation of prospective vulnerable clients.

Ancillary Services: The Standards call for us to make written disclosure of the terms of all ancillary services. They ask that attorney/client confidentiality be preserved for clients receiving ancillary services.

Public Service: The Standards encourage us to provide annually at least 50 hours of pro bono services. They also urge us to direct a substantial portion of our public service efforts to organizations assisting older persons and persons with disabilities.

NAELA's Aspirational Standards is a body of work developed and written by the Professionalism & Ethics Committee.  We as an organization are deeply grateful to the many dedicated volunteers who made, and continue to make this document a cornerstone of NAELA membership.

1st Edition Adopted October 28, 2004

Gregory S. French, CELA, Chair, Cincinnati, OH
Michael Gilfix, Esq., Palo Alto, CA
Craig A. Gordon, CELA, Tucson, AZ
Jo-Anne Herina Jeffreys, CELA, Hoboken, NJ
A. Frank Johns, CELA, Greensboro, NC
Clifton B. Kruse, Jr., Esq., Colorado Springs, CO
Professor Rebecca C. Morgan, St. Petersburg, FL
Alex L. Moschella, CELA, Somerville, MA
Charles P. Sabatino, Esq., Washington, DC
Stephen J. Silverberg, CELA, East Meadow, NY
Professor Roberta K. Flowers, Ex-officio member, St. Petersburg, FL
Hugh K. Webster, Esq., Washington, DC
Laury Gelardi, Tucson, AZ
Bridget Jurich, Tucson, AZ

2nd Edition, Adopted April 24, 2017

Gregory S. French, CELA, CAP, Fellow, Chair, Cincinnati, OH
Professor Roberta K. Flowers, Chair, Gulfport, FL
Whitney A. Gagnon, Esq., Woburn, MA
Robert C. Anderson, CELA, CAP, Marquette, MI
Connie L. Bauswell, CELA, Valparaiso, IN
Patricia E. K. Dudek, Esq., CAP, Fellow, Farmington Hills, MI
Professor Gregory T. Holtz, Naples, FL
A. Frank Johns, CELA, CAP, Fellow, LLM, Greensboro, NC
Renee C. Lovelace, CELA, Austin, TX
Professor Mary F. Radford, Atlanta, GA
Stuart D. Zimring, CAP, Fellow, Encino, CA
Ann Watkins, Vienna, VA