I. Introduction
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 attorney-client 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 that guide 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.1
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: 2
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.