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Roberta K. Flowers
Stetson University College of Law
(727) 562-7863
NAELA News Journal - NAELA Journal Online

Introduction

The Aspirational Standards: Only Getting Better With Age

By Professor Roberta K. Flowers

The NAELA Professionalism and Ethics Committee is pleased to make available this special issue of NAELA Journal, which contains articles that explain and expand on the Second Edition of the Aspirational Standards for the Practice of Elder and Special Needs Law. The Second Edition is the product of a 3-year process that required hundreds of volunteer hours under the amazing leadership of Gregory French, CELA, CAP, Fellow.1 Our hope is that the articles contained in this issue will help explain the additions and modifications to the Standards that are contained in the Second Edition.

This issue begins with the Second Edition of the Aspirational Standards for the Practice of Elder and Special Needs Law With Commentary. The Standards include two new sections (Holistic Approach and Engagement Agreements and Drafting Documents) and numerous additional commentary and examples. There were three key goals of the new edition. One goal was to bring special needs lawyering to the forefront of the Standards. The second goal was to include more commentary and practical examples to inform the reader what the Standards are encouraging practitioners to do. Finally, the committee sought in this edition to unpack the questions surrounding fiduciary representation, which was not as fully developed in the original Standards.

The goal for this issue is to analyze the different Standards, provide research, and include further examples that might be helpful. Gregory French begins the issue with his article, “Practical Answers to Ethical Questions Arising in Elder and Special Needs Law: A Quick Reference Guide.” As the title implies, the hope is that readers can use this helpful guide to find the specific answer to the specific question a lawyer is facing. Mr. French takes the reader through the major questions faced by elder and special needs law attorneys including questions about client identification, fees, capacity, and other ethical dilemmas.

In “A Comparison of the 2016 American College of Trust and Estate Counsel Commentaries With the 2017 NAELA Aspirational Standards,” Professor Mary Radford2 discusses the distinctions and similarities between the ACTEC Commentaries to the Model Rules of Professional Conduct and the NAELA Aspirational Standards. She lays out how these two projects reflect the “collective wisdom of lawyers whose goal is to raise the level of professional ethics and responsibility in both the estate planning and elder and special needs areas of law.”3 Professor Radford makes it clear that it is a mistake to attempt to draw a sharp distinction between the work of elder law attorneys and estate planners. Although much of the day-to-day work of each group overlaps, one distinction Professor Radford notes is the characteristics of the typical client. She notes that most estate planning clients do not initially present with the mental and physical conditions addressed in the Aspirational Standard. This distinction alone is reflected in many of the topics addressed in the Standards. This article does a comprehensive job of highlighting the distinctions between the two projects and concludes that each group could benefit from reading both documents as guidance.

The next article was written by this author. “The Whole Is More Than the Sum of Its Parts: Holistic Elder and Special Needs Law Practice in the Real World” discusses the new Aspirational Standard A that defines how an elder and special needs law attorney practices law holistically. I divided the idea of holistic practice into three parts: 1) consideration of the whole person, 2) the person’s whole family support network, and 3) the person’s entire needs. I conclude that the term “holistic practices” is not just a catch phrase but really a description of the way that NAELA attorneys choose to practice.

An important question that is somewhat unique to elder and special needs law is addressed in “Client Identification: Foundational and Unique to the Ethical Practice of Elder and Special Needs Law.” Robert Anderson, CELA, CAP,4 and Whitney Gagnon, Esq.,5 discuss ways client identification plays out in a variety of different settings including joint representation and representing clients with diminished capacity. The authors introduce this topic with an excellent hypothetical by Professor Donna Harkness. They go on to talk about the duties not only to the client but also how to obtain direction from the client on how to deal with others who are involved in the representation, but are not clients. The authors include in the article a sample form that can be used to give the attorney direction on how to deal with non-clients. This article will once again remind you why elder and special needs law is challenging but rewarding.

Renée Lovelace, CELA,6 takes on the multifaceted topic of fiduciary representation in her article, “Representing Fiduciaries: Guidance from the Aspirational Standards.” Beginning her article with a clever play entitled “The Fiduciary Representation Story,” Ms. Lovelace points out that many of the difficulties encountered by attorneys representing fiduciaries stem from the incredible complexities of properly acting as a fiduciary. The author suggests that when dealing with potential fiduciary representation, the attorney might want to “stop, drop, and roll. Attorneys may want to stop routine intake steps, drop the assumption that the individual speaking to the attorney will be the client, and roll through carefully developed checklists to anticipate opportunities and risks.”7 Ms. Lovelace suggests that Aspirational Standards A, B, and C can guide the attorney in working with fiduciaries. Her article is an entertaining walk through a not-so-amusing subject.

The next article in this symposium issue takes up guidance given in the Aspirational Standards when representing married couples in estate planning. Connie Bauswell, CELA,8 considers how conflicts of interest can arise in her article, “Till Death Do Us Part: Using NAELA Aspirational Standard D to Address Conflicts of Interest in Estate Planning for Married Couples.” Using three thought-provoking scenarios involving married couples (using Beatles tunes for fun), the author takes the reader through not only the requirements of ABA Model Rule of Professional Conduct 1.7 but also Section D of the Aspirational Standards to assist in understanding how conflicts arise, when they can be waived, and when the conflict is not consentable and representation needs to be declined. Most helpful in the article is the checklist Ms. Bauswell includes to assist in determining proper conduct in dealing with this sometimes-perplexing matter.

Frank Johns, CELA, CAP, Fellow,9 lends his vast experience in writing and practicing to take the reader through the topic of confidentiality in his article, “NAELA Aspirational Standard E-Confidentiality.” Using expanded case studies (some of which use facts from the Aspirational Standards examples), Mr. Johns takes the reader through a comprehensive review of not only the applicable Aspirational Standards but also the ABA Model Rule 1.6 of the Rules of Professional Conduct. He also includes a chart, comparing the first edition standards with the second edition. This article gets down to the nuts and bolts of confidentiality and gives the reader some practical ideas, including checklists on how to prevent confidentiality missteps. Finally, the author takes up a matter that is ripe for the Aspirational Standards Third Edition and which has recently been added to ABA Model Rule 1.6(c), that is the requirement that attorneys safeguard confidentiality in the use of technology, including social media, web-based advertisement, and data storage. This article will get readers thinking about what they are currently doing and not doing to guard against injury to their clients by carelessness with the client’s secrets.

Professor Gregory Holtz10 contributed his talents to this Journal issue in the article, “Understanding and Responding to Client Capacity: An Examination of Revised NAELA Aspirational Standard G.” Client capacity is a problem many elder and special needs law attorneys face frequently in their law practice. Topics such as confidentiality, conflict, and guardianship are addressed in the Aspirational Standards to assist the practitioner in dealing with thorny capacity problems. The author helps the reader understand the configuration of the capacity standard and appreciate that capacity is a very fluid concept and one that requires continuing vigilance by the attorney.

The final article in this special edition of NAELA Journal was written by the man who started the entire Aspirational Standards in 2005. Stu Zimring, Esq., CAP, Fellow,11 as President of NAELA, instigated the idea that NAELA needed not standards, not best practices, nor a code, but rather Aspirations; and so, the Aspirational Standards were born. Mr. Zimring writes in his article entitled “The Inclusion of Special Needs as a Core Element of NAELA’s Aspirational Standards, Second Edition,” about the inclusion of the distinctive dilemmas facing attorneys working with people with disabilities. Although the First Edition included some discussion about representing people with special needs, one of the primary goals of the Second Edition was to include these unique topics in the Aspirational Standards in a more overt way that really provided guidance to the practitioner. The article spins a tale using Fred and Wilma Flintstone and their children BamBam and Pebbles, to comprehensively highlight the variety of places where dealing with people with special needs are addressed. The author points out that many times an attorney is working both in what is traditional elder law (estate planning, for example) and also special needs law (setting up supports for a child with a disability). Mr. Zimring explains that these two areas of law are inextricably intertwined in so many ways, and therefore the Aspirational Standards can assist both kinds of practitioners. Mr. Zimring walks the reader through two of the key topics that confront attorneys working with people with special needs. First, he talks about the important suggestions in the Aspirational Standards on accommodating for people with diminished capacity, including physical accommodations in the office. Secondly, he addresses the subject of identification of the client and duties to the beneficiaries of the representation. He suggests the Aspirational Standards help the practitioner stop, take a breath, and look at the situation in a holistic way that will allow attorneys to enjoy this practice, which is “gratifying beyond measure.”12

It is the hope of these authors that their articles will send you back into the Aspirational Standards to reap all the benefits they have to offer. It is no surprise that many of these articles cite to Clifton Kruse, a NAELA Past President, a NAELA Fellow, and member of the Professionalism and Ethics Committee at the time the committee drafted the First Edition of the Standards. Nor is it surprising that the Standards contain a quote from him. I am reluctant to ever close a presentation on the Standards without including his words:

… We listen. We invite a monologue. We establish this by our demeanor and by our questions that invite unloading — and in the process we extend the joy that elders’ memories bring. And on those days, we earn the accolade — professional — one who serves others. That is our privileged role as lawyers; we can make others’ lives, if even for a few moments, better than they were before.13

His words always remind us what all this is about. These Standards were written to help NAELA attorneys better serve their clients in ways that make a difference in the clients’ lives. Our hope is that these articles will aid you in your endeavors to serve the elderly and vulnerable.

Happy Reading.

Citations
1 Gregory S. French, CELA, CAP, is certified as a Specialist in the practice of elder law by the Ohio State Bar Association and as an elder law attorney by the National Elder Law Foundation, which has been approved by the Commission on Certification of Attorneys as Specialists in the state of Ohio. He is a member of the NAELA Professionalism and Ethics Committee. French is a NAELA Fellow and Past President.

2 Mary Radford is the Marjorie Fine Knowles Professor of Law at Georgia State University. She was the president of the American College of Trust and Estate Counsel (ACTEC) in 2011–2012. She is a member of the NAELA Professionalism and Ethics Committee.

3 See Mary Radford, A Comparison of the 2016 American College of Trust and Estate Counsel Commentaries With the 2017 NAELA Aspirational Standards, page 91.

4 Robert C. Anderson, CELA, CAP, and is a member of the NAELA Professionalism and Ethics Committee. He is a former member of the NAELA Board of Directors. He primarily practices in Michigan.

5 Whitney A. Gagnon, Esq., is a member of the NAELA Professionalism and Ethics Committee. She practices in Massachusetts.

6 Renée C. Lovelace, CELA, is a member of the NAELA Professionalism and Ethics Committee and has a solo practice based in Austin, Texas.

7 See Rene Lovelace, Representing Fiduciaries: Guidance from the Aspirational Standards, page 126.

8 Connie L. Bauswell, CELA, is a member of the NAELA Professionalism Committee. She practices in Indiana.

9 A. Frank Johns, LLM, CELA, CAP, is a NAELA Fellow, a NAELA Past President, and a member of the NAELA Professionalism and Ethics Committee. He has been practicing elder law for more than 30 years in North Carolina.

10 Gregory Holtz was a visiting professor of law at Ave Maria School of Law in Naples, Florida before his passing on June 30, 2018. He was a member of the NAELA Journal Editorial Board and the NAELA Professionalism and Ethics Committee. He practiced law in Florida.

11 Stuart D. Zimring, Esq., CAP, is a NAELA Fellow, a NAELA Past President, and a member of the NAELA Professionalism and Ethics Committee. He practices in California.

12 See Stuart Zimring, The Inclusion of Special Needs as a Core Element of NAELA’s Aspirational Standards Second Edition, page 193.

13 See Preamble, Aspirational Standards for the Practice of Elder and Special Needs Law With Commentaries, page 5.

About the Author
Roberta K. Flowers is a professor at Stetson University, College of Law, and the Director of the Center for Excellence in Elder Law. She also directs the school’s LLM program in Elder Law. She is the current chair of the NAELA Professionalism and Ethics Committee.