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

The Whole Is More Than the Sum of Its Parts: Holistic Elder and Special Needs Law Practice in the Real World

By Professor Roberta K. Flowers

I. Introduction
The second edition of the NAELA Aspirational Standards opens with a new Standard that was added after much debate. Standard A, Holistic Approach, lays the cornerstone upon which all the other Standards rest. It acknowledges that elder and special needs law attorneys should aspire to consider their clients in the context of their whole lives, not just their current legal issues.2

Standard A contains six sections. Section 1 discusses the need for the elder and special needs law attorney to look at “the larger context, both other legal consequences as well as the extra-legal context in which the problems exist … .”3 Section 2 suggests that an attorney “consider using nonlegal services to accomplish the goals of the representation,”4 Section 3 “[e]ncour-­­
ages the use of family members and other third parties to support the client,”5 and Sections 4 and 5 deal with the important issues of family harmony and conflict avoidance techniques and resolutions. Finally, Section 6 reflects the growing concerns regarding abuse and exploitation of elders and vulnerable adults and encourages the elder and special needs law attorney to consider “actions to help prevent current and future financial exploitation, abuse, and neglect … .”6

Because this Standard was not part of the first edition of the Standards, the NAELA Professionalism and Ethics Committee7 and NAELA Board of Directors debated first its inclusion and then its location in the second edition of the Standards. No one doubted the reality that elder and special needs law attorneys practice holistically, but some believed that the term “holistic” “proved too much” and some believed that it “proved too little.” Some argued that all attorneys pride themselves on practicing holistically and therefore the term was not something that distinguished NAELA attorneys.8 Some believed that it is a buzzword and should not be used in the Standards.9 In the end, Standard A was approved and exemplifies how NAELA defines the holistic approach as a distinguishing characteristic of NAELA attorneys.

Section II of this article defines the “holistic practice” by looking at how it is defined in other professions. The next section looks at how this term is concretely played out in elder and special needs law practice by representation that considers all the client’s circumstances, the client’s entire support system, and finally, the client’s total needs, both legal and nonlegal. The final section of this article provides real-world examples that were observed by the author10 and concludes that the term “holistic” is deeply imbedded in and a distinctive characteristic of the practice of elder and special needs law.

II. What Is the Holistic Approach?
Merriam-Webster is a good a starting point for defining “holistic approach.” Merriam-Webster defines “holistic” as “relating to or concerned with wholes or with complete systems rather than with the analysis of, treatment of, or dissection into parts.”11 Some have suggested that the holistic approach involves not missing the forest for the trees.12

The idea of a holistic approach has been espoused in the medical profession for some time. A holistic medical practice looks at the entire person, not just the disease or symptoms the patient is reporting.13 It concerns itself with all aspects of a patient’s needs, including psychological and social.14 Many places of worship and religious denominations are searching for ways to address the whole person when dealing with the needs of the members of the congregation.15 Many problems faced by congregation members are not merely a lack of spiritual direction — they could be emotional, physical, or social.16 Legal professionals have also begun to talk about the holistic approach to practicing law,17 but nowhere is that concept more prevalent than in elder and special needs law.

There are several reasons why the holistic approach permeates the practice of elder and special needs law. First, by its very nature, elder and special needs law is not constrained by a substantive area of law. Charles P. Sabatino, director of the American Bar Association (ABA) Commission on Law and Aging, noted that “elder law practitioners actually exhibit tremendous variability in what substantive areas they focus on within the panoply of elder law topics”18 and that the “nature of the practice keeps evolving and branching into new areas, such as special needs trusts.”19 Because the practice of elder and special needs law is not constrained by a substantive area of law, practitioners must consider problems and solutions from a variety of legal and nonlegal disciplines.

Second, with the involvement of other people in the representation, the elder and special needs law attorney finds himself or herself “deeply intertwined with a family’s interpersonal, emotional, economic, and social dimensions.”20 Unlike other areas of legal practice, family dynamics and dysfunction can derail the representation; therefore, attorneys have to be extremely aware of and willing to address the family and other caregivers.21

Finally, many elder law clients may be experiencing “a physical or mental condition requiring special care, attention, and protection because the client may have a memory, mobility, or other disabling impairment, chronic condition, or other illness.”22 Practitioners may find themselves facing the “murky landscape of human frailty and emotional turmoil.”23 All of these issues require elder and special needs law attorneys to consider the context of clients when determining the services they need.

So what does the holistic approach look like in elder and special needs law? The next section discusses the three aspects of a holistic approach, which requires the attorney to consider (1) the whole person, (2) the client’s whole support system, and (3) the client’s total needs.

II. Characteristics of a Holistic Approach in Elder and Special Needs Law

A. Consideration of the Whole Person
Standard A, Section 1, Comment,states that when representing people who are elderly and people with special needs, the elder and special needs law attorney must consider “the ‘life needs’ of the person whose interests are being promoted in the legal representation.” The Comment lists these possible considerations:

• Access to high-quality health care

• Access to high-quality long-term care services and supports in the least restrictive housing setting that is safe for the client

• Advocacy to promote independence and autonomy

• Advocacy for accessibility to accommodate special needs

• Advocacy in promoting freedom from discrimination due to age or special needs

• Access to education and training for those with special needs

• Access to public benefits

• Access to insurance solutions for health and long-term care

• Planning to promote family harmony and minimize conflicts

• Protection from exploitation, abuse, and neglect

• Planning for end-of-life care and life support decision-making

• Tax planning

Elder and special needs law attorneys are reminded throughout the Standards that the client’s wishes are paramount to any services rendered. However, attorneys are also reminded that the client may not be familiar with what is available or aware of what he or she needs to think about. “[T]he attorney recognizes that the client may not be knowledgeable of the variety of issues the client is facing or will be facing as he or she ages. Therefore, the attorney should be prepared to address with the client issues the client may not even be aware of that are related to the representation.”24 A holistic approach is a commitment to the “well-being of our aging clients,” which “encompass[es] an understanding of elder law as an irreplaceable, invaluable fountain of knowledge for the incapacitated, the disabled, the ill, and their families.”25

The idea of addressing the whole person is imperative when representing a client with diminished capacity. ABA Model Rule of Professional Conduct 1.14,26 the bedrock guidance for working with clients with diminished capacity, has three overriding principles. One, the attorney should maintain a “normal relationship” with the client who has diminished capacity.27 A normal relationship includes the duties of loyalty,28 confidentiality,29 and communications.30 Two, the attorney should only take protective actions if a client with diminished capacity faces substantial financial or physical harm and cannot help himself or herself.31 Clients often view protective action as the antithesis of loyalty.32 Therefore, the attorney must pursue the least restrictive alternative when deciding what protective action is necessary.33 Three, the attorney can divulge confidential information in order to take protective actions.34 The Aspirational Standards take these bedrock principles and apply the holistic approach to them.

A client who shows signs of diminished capacity due to aging or disease requires the attorney to consider the possible causes of the client’s diminished capacity and whether the attorney can adapt his or her procedures to maximize the client’s capacity.

There are five steps an Elder Law attorney should take when considering whether to represent a client with diminished capacity. First, the attorney must determine whether the client is suffering from diminished capacity; the second step is to evaluate whether the client has sufficient capacity to make a legally sound decision; the third step is to determine whether the attorney can use techniques to enhance a client’s capacity (of course, these techniques may be useful to all clients, with or without diminished capacity); fourth, if the client lacks capacity, the attorney should determine whether he should take protective action pursuant to [ABA Model] Rule 1.14(b); and finally, if required, the attorney should determine what protective action should be taken.35

Each of these steps requires the attorney to look at the client as a whole person and not just as a medical diagnosis. Aspirational Standard G, Client Capacity, states, “Although the attorney should consider any medical opinions regarding the client’s capacity, the attorney should evaluate client capacity by a legal standard … .”36 Simply because a client has been diagnosed with a dementia-causing illness does not mean that the client lacks capacity to consent to specific services the client is requesting of the attorney.

A diagnosis is not dispositive. It is important to assess the client’s functional capacity.37 Functional capacity focuses on the abilities of the client to understand the legal transaction or decisions that need to be made. When the capacity in question concerns a specific transaction or decision rather than the need for a guardian or conservator, the issue is the client’s understanding of the transaction or decision. The attorney should consider factors such as the following:

• The variability of the client’s state of mind;

• The client’s ability to appreciate the consequences of his or her decision;

• The irreversibility of the decision;

• The substantive fairness of the decision;

• The consistency of the decision with lifetime commitments of the client;

• The type of decisions to be made by the client and the applicable legal standard; and

• The client’s ability to articulate reasoning behind his or her decision.38

Attorneys should act intentionally in accessing and documenting a client’s capacity. The use of general diagnostic tools is not always helpful because elder law practitioners are not formally trained in their use and, more important, the tools do not really assess functional capacity, which determines whether continued representation is appropriate.39

Assessment of Older Adults With Diminished Capacity: A Handbook for Lawyers40 is a great resource for attorneys dealing with clients who have diminished capacity. It points out that there is no “single marker for diminished capacity, but there are ‘red flags’ that may indicate problems.”41 It cautions attorneys to be “alert to cognitive, emotional, or behavioral signs such as memory loss, communications problems, lack of mental flexibility, calculation problems, and disorientation.”42 The handbook further cautions that that the attorney must consider “[mitigating] factors such as stress, grief, depression, reversible medical conditions, hearing and vision loss, or educational, socio-economic, or cultural background … .”43

Capacity is not an all-or-nothing issue.44 Capacity may be viewed more as a dimmer switch than an on or off switch.45 Because capacity can vacillate, the attorney must consider what processes and methods can be used to assist the client.46 The attorney should consider any physical challenges that could be overcome by certain measures, such as by having reading glasses available in the office or making sure that the office lighting does not cause glare in areas where the client will be reading documents. Additionally, the attorney should consider the location of the consultation to minimize the client’s nervousness47 as well as the time of day for the consultation in case the client experiences the effects of sundowning.48 Considering any psychological issues the client may be facing, including loneliness, grief, and depression, can also help the attorney maximize the client’s capacity.49 Finally, the attorney should consider the methods he or she plans to use for the interview and which approaches will most assist the client.50 At the end of the day, there are two prerequisites to being an effective attorney when dealing with clients who have diminished capacity: the ability to talk and time. Shorter conversations that cover less material, reminding the client of what has been discussed at previous meetings, and asking the client to repeat what the attorney has said are good tactics.51 Methods that consider the client as a whole person will assist in completing the legal task the client wishes to accomplish.

B. Consideration of the Client’s Whole Support System
The Aspirational Standards also recognize that the holistic approach must consider the whole support system in the client’s life, including his or her family. Unlike attorneys in other areas of law, elder and special needs law attorneys often deal with others besides the client.52 These nonclients can be involved in the representation in a variety of ways. Nonclients may have made the appointment and transported the elder to the office.53 Family members or other caregivers may be involved because of their roles in the elder’s decision-making.54 The elder may explicitly or implicitly defer to the nonclient in making decisions.55 Because of the prevalence of nonclients in elder law representation, the Aspirational Standards address the need for the elder and special needs law attorney to recognize the benefits of having others involved in the representation in a way that helps the client and comports with the client’s wishes.56

Standard A, Section 3, states that the elder and special needs law attorney
“[e]ncourages the use of family members and other third parties to support the client in the legal representation when appropriate and the client consents.”57 The idea of encouraging involvement from nonclients is a unique part of elder and special needs law. It recognizes that the elder or person with special needs may need or may want others involved in the representation. Of course, caution must be taken when involving others.58 Standard A, Section 3, Comment, states, “The attorney needs to confirm that (a) nonclients who are involved in the legal representation understand who the attorney’s client is[59] and are not unduly influencing the client and (b) the client has authorized the involvement of the nonclient in the process, preferably in writing.”60 Care must also be taken to consider the effect on the attorney-client privilege of the presence of nonclients during conversations with the client.61

Many times the meeting can be bifurcated, with the attorney spending some time with family members or others present to acquire information the attorney can use to represent the client holistically. Then the attorney can spend time alone with the client to protect the confidentiality of the communications.62 Meeting with the client alone not only protects the attorney-client privilege, it also helps the attorney “assess the prospective client’s capacity and wishes as well as the presence of any undue influence.”63

An attorney may also wish to get the client’s consent that, if the attorney starts to have concerns about the client’s health, either physical or mental, the attorney has permission to contact a person who is specified in the agreement. An attorney may be able to contact others as a “protective action” as defined in the ABA Model Rules of Professional Conduct.64 However, having the conversation in advance with the client allows the client to decide who, if anyone, the client wants to be notified that he or she is declining. By obtaining the client’s input before the need arises, the attorney is able to follow through with the client’s wishes, even after the client has lost capacity.

Related to the issue addressed in Standard A, Section 3, are the ideas of promoting family harmony found in Sections 4 and 5 of the Standard. Section 4 deals with planning issues to avoid family conflicts and states that the elder and special needs law attorney “[e]xplains to the client seeking estate planning services how conflicts among family members may develop and, if desired by the client, recommends harmony-enhancing measures consistent with the client’s estate planning goals to minimize these conflicts.”65 Section 5 deals with encouragement of nonjudicial remedies when conflicts arise.

Initially, the attorney may need to educate and counsel the client about how conflicts can occur after the client’s death, using stories from his or her practice. Model Rule 2.1 states, “In rendering advice, an attorney may refer not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client’s situation.”66 Clients may not have thought about these issues; therefore, it is important for the attorney to explain how these may arise.67 Then the attorney “should assess the importance of family harmony to the client”68 by asking the client how important family harmony is to him or her.69

Clients need to understand that family conflicts can “frustrate the client’s estate planning goals, significantly increase legal fees and other costs of administering an estate or trust, and, if the conflicts occur during the client’s lifetime, cause the client unnecessary stress.”70 Professor Rebecca Morgan cites the following example:

Assume the client is to sign a durable power of attorney and tells the attorney she wants her two children to be named as co-agents so she does not hurt the feelings of either child. In discussing this with the client, the attorney learns that one child would be a poor choice of agent and counsels the client accordingly. The attorney could discuss with the client strategies to minimize any family disharmony that might occur as a result of one child being in charge and the other not.71

Such strategies may include “incorporating conflict resolution provisions in advance directives, wills, and trusts that are consistent with other important client goals.”72 Additionally, some attorneys have suggested having the client write a letter to be given to the family to be read after the client’s death explaining why the client chose as the he or she did.73 “The Elder Law attorney should encourage the client to write a personal message, sometimes called an ‘ethical will’ to his or her family to provide this information and to transmit this legacy.”74 “Ethical wills frequently include a family history or tree; personal hopes, values, and beliefs; forgiving others or asking forgiveness; and explanations about decisions made during life.”75

Another possible strategy is holding a family meeting, which is sometimes part of what is called “holistic estate planning.”76 The purpose of the family meeting is to allow the family members to understand the estate plan before the death of the testator and “[try] to avoid the time, expense, [and] emotional drain of an interfamilial court proceeding … .”77 The biggest obstacle to the family meeting is the testator’s reluctance to trigger a family crisis before the testator’s death.78 The attorney who wishes to assist in this way must inform the client that such a meeting may help avoid disharmony after the client is gone.79 The family meeting can be conducted as a traditional mediation80 or as more of a conversation.81 The meeting should include adult family members and the client. A mediator or other “family systems specialist” may be helpful to the estate planner.82 One primary benefit of the meeting is to allow family members to “discuss their views openly, clear up misperceptions and misunderstandings, and resolve estate and trust conflicts by building consensus.”83 The “central innovation of this method focuses not only on the transfer of wealth and tax issues, but on the underlying desires, fears, love, resentment, goals, and other issues that are inherent in a family unit and should not be ignored.”84

Certainly, issues regarding family conflict are not limited to estate planning. Issues can also revolve around the care or guardianship of an elder. Mediation can be an effective tool with a high-conflict family.85 An attorney considering mediation may also want to consider the relatively new process of eldercare coordination.86

Eldercare coordination focuses on improving relationship dynamics so that the elder, family members, and others in supportive roles can better collaborate with professionals able to help them make the onslaught of tough decisions ahead and support each other during times of transition. It is a dispute resolution option specifically designed for high-conflict cases involving issues related to the care and needs of elders in order to complement, not replace, other services such as provision of legal information or legal representation; individual and/or family therapy; and medical, psychological, or psychiatric evaluation or mediation.87

The purpose of the eldercare coordination meeting is to assist individuals to:

• address their [nonlegal] issues independently from the court;

• work with others in their support network to address the care and needs of the elder, avoiding delays and resulting in better decisions;

• foster the elder’s and the family members’ capacity for self-determination;

• promote safety by monitoring situations at high risk for abuse or neglect;

• provide a support system for the elder and family members during times of transition; and

• reduce the need for protracted court intervention and free precious judicial time by addressing matters in high-conflict cases involving elders for whom dispute resolution processes have been unavailable or have proven ineffective.88

Of course, any meeting with the client and others is fraught with ethical pitfalls of which the attorney must be aware. The first issue is to make sure that everyone understands the role the attorney plays in the family meeting.89 The identity of the client must be reinforced and everyone reminded that the attorney’s job is to further the client’s desires for family harmony surrounding the estate planning process.90 Everyone must understand that the elder’s attorney is not the family attorney.91 The attorney should never conduct this meeting before being fully aware of the client’s estate plans. This meeting should not happen at the beginning of the process but toward the end to ensure that the client’s objectives are understood and met. The attorney must remain loyal to the client’s objectives92 even in light of what others desire. The attorney must discuss with the client what information he or she wants to share during the meeting to avoid running afoul of the rules protecting confidential information.93

Standard A, Section 5, states, “When conflict between family members or other interested parties arise, [the attorney] evaluates whether nonjudicial conflict resolution is appropriate and encourages noncourt resolution when appropriate.”94 It encourages the attorney to help clients and their family members consider nonjudicial conflict resolution but recognizes that conflict can arise even if preventive steps are attempted.95

For example, a client may have more than one family member or other trusted persons to choose from when selecting a health care or financial fiduciary. The client’s selection of one person as a fiduciary may create resentment among the other persons not selected. This resentment may later fuel or create conflicts and could lead to a probate guardianship proceeding to remove the appointed fiduciary or, after the client’s death, to a court challenge by the client’s out-of-power family members against the client’s appointed trustee or executor.96

The elder and special needs law attorney might suggest mediation or other collaborative settlements. An attorney who asks about and documents the client’s wishes regarding family harmony will have a stronger foundation for such a suggestion.97 One scholar noted that in the succession of family businesses, “personal interactions among successors are six times more [monetarily] detrimental … than transfer taxation.”98 Consider, then, if family harmony is important to the client. It is realistic to assume that “[t]estators and trustors who spent a lifetime accumulating assets do not want those assets wasted on expensive probate litigation.”99

The attorney must be mindful of any ethical issues that might arise when assisting the family in working toward a nonjudicial conclusion.

In recommending conflict resolution solutions, the attorney should be careful not to violate ethical obligations to the client, or former client after he or she dies, such as failing to determine whether the proposed action would create a conflict of interest, whether the attorney has authorization from the client to take the proposed action, and whether such an action would result in a disclosure of the client’s confidential information.100

C. Consideration of the Client’s Total Needs — Law Firm as One-Stop Shop
Finally, Standard A recognizes that the attorney may also need to address other needs of the client through ancillary services. Standard A, Section 2, states that the elder and special needs law attorney “[m]ay consider using nonlegal services to accomplish the goals of the representation when appropriate and the client consents.”101 Standard A, Section 2, Comment, states, “Since the holistic approach may go beyond traditional legal services, the guidance of nonlegal professionals may be useful in accomplishing the holistic approach.”102 The Comment gives several examples of these nonlegal services, including “advocacy by a health care professional, capacity screening by a psychologist or neurologist, residential placement by a social worker, medication management by a nurse, tax preparation and asset organization by an accounting professional, investment advice by a financial planner, and real property appraisal services by a licensed appraiser.”103

Attorney Timothy L. Takacs believes that clients come to an elder law office seeking to have several questions answered:

• How can the elder’s dignity, independence, and quality of life be maintained and enhanced?

• Who will be making decisions for the elder, and how will those decisions be made?

• How will the financial, housing, family, medical, and legal needs of the elder be met?

• If the elder has a spouse or dependents, how will their needs be met?

• How can the elder’s assets best be utilized for his benefit and preserved for the benefit of his intended beneficiaries?104

Takacs submits that answering all of these questions is the holistic practice of elder law.105 He calls this approach “life planning.”106 He believes that “many elder law attorneys are on the leading edge among members of the bar in offering ancillary services to their clients.”107 Some see the offering of ancillary services as the wave of the future in elder and special needs law representation and an “innovative way” to address the new realities of competition.108

The Aspirational Standards include a Standard devoted to ancillary services. Standard J, Nonlegal Services, helps the elder and special needs law attorney consider the ethical issues involved in providing nonlegal services (also known as ancillary services or law-related services). Standard J, Section 1, states that the attorney “[m]ay consider using nonlegal services to accomplish the goals of the representation … .”109 However, the rules of ethics, the client’s consent, and the client’s rights must be considered paramount.110 Clients who come to elder and special needs law attorneys are “experiencing nonlegal issues requiring medical care, long-term care services and supports, public benefits, insurance coverage, protection from exploitation and neglect, and end-of-life care planning.”111 These issues may require nonlegal solutions. Standard J recognizes that to resolve these issues, the holistic approach may lead an attorney to provide nonlegal services to a client, but the Standard makes it clear that attorneys need not provide these services themselves.112

Standard J, Section 3, provides that the elder and special needs law attorney
“[d]iscloses in writing and obtains the client’s informed written consent to any relationship between the provider of the nonlegal service and the attorney, the attorney’s law firm, and the attorney’s immediate family members.”113 The idea that the agreement to provide and receive nonlegal services be in writing is consistent with the requirements of Model Rule 1.8 and a rarity in the ABA Model Rules of Professional Conduct.114 Model Rule 1.8(a) states:

(a) A lawyer shall not enter into a business transaction with a client or knowingly acquire an ownership, possessory, security or other pecuniary interest adverse to a client unless:

(1) the transaction and terms on which the lawyer acquires the interest are fair and reasonable to the client and are fully disclosed and transmitted in writing in a manner that can be reasonably understood by the client;

(2) the client is advised in writing of the desirability of seeking and is given a reasonable opportunity to seek the advice of independent legal counsel on the transaction; and

(3) the client gives informed consent, in a writing signed by the client, to the essential terms of the transaction and the lawyer’s role in the transaction, including whether the lawyer is representing the client in the transaction.115

Model Rule 1.8 applies when an attorney is providing service of a nonlegal nature to a client.116 The business transaction rule is restrictive based on the concern of the attorney overreaching when doing business with a client.117

The NAELA Aspirational Standards suggest that the elder and special needs law attorney consider alternative ways of providing nonlegal services.118 Nonlegal services can be provided in a variety of ways.119 An attorney can provide the services directly to a client or refer the client to another employee of the law firm. Conversely, the attorney can provide the services through an entity that is nonlegal but in which the attorney or his or her firm has a proprietary interest.120 Or the attorney can refer the client to a distinct provider of the service, either for remuneration or not. One author suggests that the lawyer may in fact serve as a general contractor of law-related services.121 Attorneys must be cognizant of their state bar rules that prohibit them from sharing legal fees with nonlawyers.122 However, an attorney may share nonlegal fees with a nonlawyer. Therefore, any fees generated for nonlegal services can be shared.123

Different methods of providing nonlegal services can lead to different ethical responsibilities regarding the client. Model Rule 5.7 attempts to help the attorney understand when the ABA Model Rules of Professional Conduct apply to the rendering of nonlegal services. It states:

(a) A lawyer shall be subject to the Rules of Professional Conduct with respect to the provision of law-related services, as defined in paragraph (b), if the law-related services are provided:

(1) by the lawyer in circumstances that are not distinct from the lawyer’s provision of legal services to clients; or

(2) in other circumstances by an entity controlled by the lawyer individually or with others if the lawyer fails to take reasonable measures to [ensure] that a person obtaining the law-related services knows that the services are not legal services and that the protections of the client-lawyer relationship do not exist.124

An attorney who chooses to provide services through his or her own law firm or an entity that is owned in part or in whole by the attorney or law firm must make it clear to the client that the lawyer’s professional standards do not apply to the provision of the nonlegal services. Standard J goes one step further in proposing that the elder and special needs law attorney do the following:

• Ensure that the client’s rights be preserved throughout the provision of the nonlegal service;[125]

• Disclose to the client any relationship and any financial interest the attorney may have with the nonlegal service;

• Advise the client of the availability of similar nonlegal services in the locality;

• Advise the client of the client’s right to seek independent legal advice; and

• Obtain the client’s written informed consent to the nonlegal services.126

Finally, the comments on the Model Rules state that the attorney must have measures in place to ensure that the nonlawyers also protect the client’s rights. If the nonlawyers are part of the law firm, Model Rule 5.3 applies, which requires the managing attorneys to have practices in place “giving reasonable assurance that the [nonlawyer’s] conduct is compatible with the professional obligations of the lawyer.”127 Aspirational Standard J suggests training nonlawyers and requiring that they sign nondisclosure and nonconflict agreements. A conflict may arise in jurisdictions where specific nonlegal professionals have statutory requirements to report abuse or exploitation but the attorney is not a mandatory reporter of abuse and must abide by the profession’s strict confidentiality rules. An attorney must consider whether the nonlegal professional can be used under the attorney’s supervision and act consistently in terms of both obligations.128

III. Observations and Conclusion
The Aspirational Standards are NAELA’s attempt to define professionalism in the real world of elder and special needs law. This author observed that Standard A, Holistic Approach, is not just an aspiration but a reality. During her sabbatical from teaching at Stetson University, the author had the opportunity to observe the holistic practice of law throughout the United States. Several instances exemplify this method of practicing.

A. The Whole Person
Considering the whole person requires an attorney to listen to what the client needs and wants, not what the attorney thinks is the objective of the representation. For example, in a guardianship case, Fred,129 the son of Dr. Howarth, an elderly man, had petitioned the court for a finding of incapacity for this father and was named Dr. Howarth’s guardian. Fred then relocated his father to a long-term care facility in a city where his mother, Elizabeth (the elder’s ex-wife), lived. The facility was many miles away from where Dr. Howarth’s current wife of 30 years, Martha, lived.

Fred and his siblings had always had a contentious relationship with Martha. Over the course of several months, Dr. Howarth’s dementia, along with the influence of Fred and his siblings and Elizabeth, caused Dr. Howarth to believe that he did not want to see Martha ever again — or so Fred claimed. Fred also claimed that Dr. Howarth’s doctors would testify that seeing Martha would be harmful to his father.

The firm representing Martha soon discovered that what Martha cared about was visiting her husband and that all the other issues, including her lack of access to the money, was of little concern. Her attorney, who understood this, was tenacious in trying to get the court to order visitation. An attorney who is not practicing holistically might jump to the conclusion that the client’s primary objective was to have the guardianship overturned or was concerned about the financial ramifications of the guardianship.

B. The Client’s Whole Support System
Another family’s situation exemplified this principle of engaging the client’s whole support system when appropriate to meet the objectives of the representation. A mother and two daughters met with an attorney ostensibly to discuss estate planning for the mother. It became very clear to the attorney early in the conversation that the real issue was the daughters’ legitimate concern with money their mother was giving to a friend. The daughters respected their mother’s choices but worried that she would need this money going forward. They understood why their mother wanted to help her friend in light of the things the friend was doing for her, but the attorney recognized that the family still needed to have a mediated conversation about it.

Although the matter was ancillary to preparation of the estate planning documents and the daughters were not her clients, the attorney realized that unless she was able to mediate this situation, no estate planning could happen. The attorney was masterful at helping the family come up with a creative solution with which the mother would agree — the money she would give to her friend during her lifetime would be limited, but a portion of her estate would be allocated to the friend as a testamentary gift. Clearly the daughters were their mother’s support system. Their involvement did not hinder the representation but rather assisted the attorney in accomplishing her client’s goals.

C. The Client’s Total Needs
The author watched attorneys across the nation discuss with clients all the issues their clients were facing, not just the legal issues. Discussions ranged from how to prevent financial exploitation by the new “boyfriend” of an aging actress to the need for a geriatric care manager. Each client’s total needs were considered. The attorneys the author observed kept information on other resources the client might need, from geriatric care managers to comprehensive trust services. Most of the attorneys knew the nonlegal service providers personally.

The author asked one attorney why she did not hire a geriatric care manager for her office. The attorney explained that different people need different types of care managers. She said that if she had an in-house care manager, she would be tempted to send all clients who needed a care manager to this employee. By referring clients to outside geriatric care managers with whom she was familiar, she was able to consider the needs of the client as well as the client’s personality and preferences and attempt to match the client with the care manager most effective at meeting the client’s needs.

In one situation an attorney discovered that a special needs family was about to lose its house. He was able to keep the family members in their home by having the client’s pooled trust purchase the house and then rent it back to the family. It was a legal solution to a nonlegal problem.

“Holistic,” in terms of legal representation, is not just a buzzword. It really describes the practical, effective, and compassionate way that NAELA attorneys practice. The concept encompasses the physical office, the services provided, and the follow-up care. Including this important concept in the second edition of the NAELA Aspirational Standards reminds experienced attorneys why they love practicing elder and special needs law. And it teaches attorneys new to elder and special needs law what makes this area of law so unique and rewarding. As Clifton Kruse, NAELA Past President and member of the Professionalism and Ethics Committee when the Committee drafted the first edition of the Standards put it:

[C]lients are hesitant to share without invitation. There is a threshold that we must assure them that we want them to cross. And we do this with questions. And we do it as lawyers. We are the elders’ lifeline. Our licenses make this possible. They give us status and credibility, and after meeting us — hopefully trust. The legal answers are comparatively easy — the job we are called in to do is done — but along the way, the more important, the more valuable service occurs as well. 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.130

Citations
1 Linda S. Whitton, Everything You Needed to Know About Good Lawyering, You Can Learn From Elder Law, 40 Stetson L. Rev. 73, 74 (2010) (Professor Whitton puts it this way, “Lawyers cannot fully undertake their professional roles without first realizing that clients are individuals, and individuals are more than the sum of their problems.”); Saul McLeod, Reductionism and Holism, Simply Psychology, www.simplypsychology.org/reductionism-holism.html (2008) (“Holism refers to any approach that emphasizes the whole rather than their constituent parts.”) (accessed Sept. 15, 2018).

2 NAELA Aspirational Stand. A (2d ed., NAELA 2017).

3 See id. at § 1.

4 Id. at § 2.

5 Id. at § 3.

6 Id. at § 6.

7 The second edition of the Aspirational Standards is the product of the NAELA Professionalism and Ethics Committee. The Committee spent 3 years editing the original Standards in the hope of making them more useful.

8 See Whitton, supra n. 1, at 74 (Professor Whitton suggests that teaching the holistic approach to elder law students can make them better attorneys no matter what area of practice they undertake.).

9 At the Committee level, the concern was about the location of the Holistic Approach Aspirational Standard. Some members wanted to place it after Standard B, Client Identification. Other members argued that the attorney must first identify the client before he or she can represent the client holistically. The final decision was to place the Standard at the very beginning to signal that all of the Standards should be considered through the lens of a holistic practice. Regarding the use of the term “holistic,” one member of the Board stated, “I do not disagree with the principle, but ‘holistic’ is one of those buzzwords that would be better disregarded and our concrete meaning used instead. We should say precisely what we mean by it, that we attempt to take into account not just the specific legal question presented, but all of the consequences. The beginning point is to consider all of the legal and financial consequences; that is, in seeking Medicaid qualification, we should advise the client about all of the costs in achieving that goal — not just our fees but income and capital gains tax incurred, lost income from using low-return Medicaid qualified annuities, impact on estate plan, and the like. Going beyond that, if the client wants, we would consider such aspects as living arrangements, service providers, and all of the things that make up an older, perhaps disabled, person’s lived experience.” (Draft comments on first draft of Standards and email from member (copies on file with author). Two Board members disliked the idea that elder and special needs law attorneys are unique in holistic representation and believed that the word “unique” should be deleted. (Draft comments on first draft of Standards (copies on file with author).)

10 In fall 2018, the author was granted a sabbatical, which allowed her to spend the semester as an intern with four Stetson LLM alumni. The author interned with Amos Goodall, Steinbacher, Goodall & Yurchak, in State College, Pennsylvania; Donna Jackson, Donna J. Jackson and Associates, in Oklahoma City; Stephanie Edwards, Edwards Elder Law, in St. Petersburg, Florida; and Justin McDermott and Stu Zimring, Law Office of Stu Zimring, in Los Angeles. The author had previously spent time working with A. Frank Johns, Booth Harrington and Johns, in Greensboro, North Carolina.

11 Merriam-Webster, Holistic, https://www.merriam-webster.com/dictionary/holistic (accessed Sept. 15, 2018).

12 See McLeod, supra n. 1.

13 See U.S. v. Heilbron, No. 15-CR-2030 WJ, 2017 U.S. Dist. LEXIS 4353 at 17 (D.N.M. Jan. 11, 2017). (“Holistic medicine integrates conventional and alternative therapies so it sometimes involves different treatment plans [from what] conventional medicine would dictate.”) See also Heidi M. Rian, Comment: An Alternative Contractual Approach to Holistic Health Care, 44 Ohio St. L.J. 185 (1983) (“A holistic approach to health rests on the belief that ‘medicine is but one perspective from which we may perceive health and disease.’”).

14 See Rian, supra n. 13.

15 Joey R. Peyton, Considering a Biblical Mandate for Providing Holistic Pastoral Care to Diaspora Populations, 1(15) Global Missiology 1 (Oct. 2017), http://ojs.globalmissiology.org/index.php/english/article/viewFile/2028/4545 (accessed Sept. 15, 2018).

16 Id. at 2 (“Holistic pastoral care concerns the use of the word holistic to emphasize that the envisioned pastoral care must intentionally include, at the least, care for the volitional, emotional, social, physical, mental, and spiritual needs.”).

17 Ingrid Tollefson, Enlightened Advocacy: A Philosophical Shift With a Public Policy Impact, 25 Hamline J. Pub. L. & Policy 481, 505 (2004) (“Holistic attorneying is ‘[a]n orientation toward law practice that shuns the rancor and bloodletting of litigation whenever possible; seeks to identify the roots of conflict without assigning blame; encourages clients to accept responsibility for their problems and to recognize their opponents’ humanity; and sees in every conflict an opportunity for both client and attorney to let go of judgment, anger, and bias and to grow as human beings.’”).

18 Charles P. Sabatino, Elder Law 2009–2039 30 Bifocal 105 (2009), https://www.americanbar.org/content/dam/aba/publications/bifocal/Jul_09_Ann_ABA_Bifocal_J.authcheckdam.pdf (accessed Sept. 15, 2018); Timothy L. Takacs, The Life Care Plan: Integrating a Healthcare-Focused Approach to Meeting the Needs of Your Clients and Families Into Your Elder Law Practice, 16 NAELA Q. 2, 2 (Winter 2003).

19 See Sabatino, supra n. 18, at 105.

20 See Joseph A. Rosenberg, Adapting Unitary Principles of Professional Responsibility to Unique Practice Contexts: A Reflective Model for Resolving Ethical Dilemmas in Elder Law, 31 Loy. U. Chi. L.J. 403, 405 (2000).

21 Rebecca Morgan, Family Matters in an Elder Law Practice, 29 J. Am. Acad. Matrimonial L. 109 (2016).

22 See NAELA Aspirational Stand. A § 1 cmt.; see also Takacs, supra n. 18, at 2 (“The number of Americans who will suffer functional disability due to arthritis, stroke, diabetes, coronary artery disease, cancer, or cognitive impairment is expected to increase at least 300 percent by 2049.”).

23 Rosenberg, supra n. 20, at 405.

24 NAELA Aspirational Stand. A § 1 cmt.

25 See Takacs, supra n. 18, at 4 (quoting Mary Alice Jackson’s presentation “The Evolution of Elder Law Practitioners” to the Elder Law Section of the Florida Bar Association).

26 Readers should consult their state rules that are equivalent to Model R. Prof. Conduct 1.14 (ABA 2016) and disregard any Standards that are in conflict with those rules.

27 Model R. Prof. Conduct 1.14(a).

28 Model R. Prof. Conduct 1.2(a), 1.7, 1.9 (Model Rule 1.2(a) adheres to the client’s objectives of representation, 1.7 conflicts with current client, and 1.9 conflicts with former client.); see also Model R. Prof. Conduct 2.1 (“exercise independent judgment and render candid advice”).

29 Model R. Prof. Conduct 1.6.

30 Model R. Prof. Conduct 1.4.

31 Model R. Prof. Conduct 1.14(b).

32 Id. at cmt. 8 (“Disclosure of the client’s diminished capacity could adversely affect the client’s interests.”).

33 Id. at cmt. 5. In taking any protective action, the attorney should be guided by factors such as the client’s wishes and values to the extent known, the client’s best interests, and the goals of minimizing intrusion into the client’s decision-making autonomy, maximizing client capacities, and respecting the client’s family and social connections.

34 Model R. Prof. Conduct 1.14(b).

35 Roberta K. Flowers & Rebecca C. Morgan, Ethical Issues in an Elder Law Practice 127 (ABA 2013).

36 See NAELA Aspirational Stand. G § 2 cmt. ex.

37 See In re Will of Maynard, 307 S.E.2d 416 (N.C. 1983) (need to determine the question of capacity on date of the will); see also Est. v. Hastings, 387 A.2d 865 (Pa. 1978) (lack of capacity regarding handling of business affairs not sufficient to show lack of testamentary capacity).

38 See NAELA Aspirational Stand. G § 2 cmt. ex.

39 ABA Commn. on L. & Aging, Am. Psychol. Assn., Assessment of Older Adults With Diminished Capacity: A Handbook for Lawyers 21–22 (2005) (“It is generally not appropriate for attorneys to use formal clinical assessment instruments such as the Mini-Mental Status Examination (MMSE)” because they are not trained in using and interpreting these instruments, the information they yield is limited, and the results may be misleading.).

40 See generally id.

41 Id. at v.

42 Id.

43 Id. at vi.

44 Model R. Prof. Conduct 1.14 cmt. 1 (“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.”).

45 Martin Guggenheim, A Paradigm for Determining the Role of Counsel for Children, 64 Fordham L. Rev. 1399 (1996) (discussing this analogy when representing children).

46 Rebecca C. Morgan, From the Elder-Friendly Law Office to the Elder-Friendly Courtroom: Providing the Same Access and Justice for All, 2 NAELA J. 325, 332 (2006).

47 Id. at 333.

48 Id. at 331.

49 Robert Fleming & Rebecca Morgan, Lawyers’ Ethical Dilemmas: A “Normal” Relationship When Representing Demented Clients and Their Families, 35 Ga. L. Rev. 735, 776 (2001).

50 Id.; see also Model R. Prof. Conduct 1.4 (which requires that an attorney explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation); Model R. Prof. Conduct 1.4 cmt. 6 (which suggests that communication may need to be different with a client who has diminished capacity. “Ordinarily, the information to be provided is that appropriate for a client who is a comprehending and responsible adult. However, fully informing the client according to this standard may be impracticable, for example, where the client is a child or suffers from diminished capacity.”).

51 Lara Lynn Lane, Reflective Listening, Gale Encyclopedia of Psychol. (2d ed., Gale Group 2001), encyclopedia.com, https://www.encyclopedia.com/medicine/encyclopedias-almanacs-transcripts-and-maps/reflective-listening (accessed Sept. 15, 2018).

52 Model R. Prof. Conduct 1.14 cmt. 3 (recognizing that a “client may wish to have family members or other persons participate in discussions with the attorney. When necessary to assist in the representation, the presence of such persons generally does not affect the applicability of the attorney-client evidentiary privilege.”). Aspirational Standard B, Client Identification, addresses the issue of identifying the client when other family members are involved. See Robert C. Anderson & Whitney A. Gagnon, Client Identification: Foundational and Unique to the Ethical Practice of Elder and Special Needs Law, Special Edition NAELA J. 113 (2018).

53 Flowers & Morgan, supra n. 35, at 19.

54 Id.

55 Id.

56 See NAELA Aspirational Stand. A § 3 (Stand. A § 3 cmt. states, “In the elder and special needs law practice, the assistance of nonclient family members and other third parties is often appropriate and useful, especially when the capacity of the person being served in the legal representation is diminished.”).

57 NAELA Aspirational Stand. A § 3.

58 ABA Commn. on L. & Aging, Why Am I Left in the Waiting Room? Understanding the Four C’s of Elder Law Ethics (2017), https://www.americanbar.org/content/dam/aba/administrative/law_aging/2018_ethics_brochure_final.
authcheckdam.pdf
(accessed Sept. 15, 2018).

59 Model R. Prof. Conduct 1.14 cmt. 3 (“Nevertheless, the attorney 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.”). Care must be taken to ensure that the client has the functional capacity to consent to the involvement of nonclients. The client must be able to understand the risks and benefits of the presence of the third-party nonclient. See Model R. Prof. Conduct 1.10.

60 See NAELA Aspirational Stand. A § 3 cmt.; see also Model R. Prof. Conduct 1.0(e) (defining informed consent as an “agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct.”).

61 Roberta K. Flowers, To Speak or Not to Speak: Effect of Third-Party Presence on Attorney Client Privilege, 2 NAELA J. 153, 169 (2006) (discussing the fact that the third party must be necessary to the representation in order for the privilege to apply to the conversation).

62 Id. at 170 (Because the privileged communication between the client and attorney happens outside the presence of the family, no wavier of the privilege occurs.).

63 See NAELA Aspirational Stand. B § 3.

64 Model R. Prof. Conduct 1.14 cmt. 5 (which lists several protective actions: “Such measures could include: consulting with family members, using a reconsideration period to permit clarification or improvement of circumstances, using voluntary surrogate decision making tools such as durable powers of attorney or consulting with support groups, professional services, adult-protective agencies or other individuals or entities that have the ability to protect the client.”).

65 See NAELA Aspirational Stand. A § 4.

66 Model R. Prof. Conduct 2.1.

67 Id.

68 See NAELA Aspirational Stand. A § 4 cmt.

69 Id. (“The attorney should assess the importance of family harmony to the client, the dynamics of the client’s family, and the risk of disharmony when a client experiences a decline in capacity and later dies.”).

70 See NAELA Aspirational Stand. A § 4 cmt.; Roberta K. Flowers & H. Amos Goodall Jr., In Fear of Suits: The Attorney’s Role in Financial Exploitation, 10 NAELA J. 175 (2014) (Celebrity examples of family conflict negatively impacting estate plans include Brooke Astor.); see also Missia H. Vaselaney, Estate Planning of the Rich and Famous, 26(2) Prob. L.J. Ohio 9 (2015) (regarding Casey Kasem); U. Tex. at Austin v. Ryan O’Neal, 2012 WL 10072944 (Cal. Super. 2012) (regarding Farah Fawcett).

71 Morgan, supra n. 21, at 146.

72 See NAELA Aspirational Stand. A § 4 cmt.

73 Andrew H. Hook & Thomas D. Begley Jr., Attorneying for Older Clients: A New Paradigm, 1 NAELA J. 269, 271 (2005).

74 Id.

75 Id.

76 See e.g. Emily E. Beach, Nudging Testators Toward Holistic Estate Planning: Overcoming Social Squeamishness on the Subjects of Money and Mortality, 26 Ohio St. J. on Dis. Res. 701 (2011); Melissa Street, A Holistic Approach to Estate Planning: Paramount in Protecting Your Family, Your Wealth, and Your Legacy, 7 Pepp. Dis. Res. L.J. 141 (2007).

77 See Beach, supra n. 76, at 703.

78 Street, supra n. 76, at 141.

79 Model R. Prof. Conduct 2.1 (recognizing that an attorney can refer to “other considerations such as moral, economic, social and political factors that may be relevant to the client’s situation.”).

80 See Street, supra n. 76, at 147 (“The holistic approach is based on the typical mediation process which is organized in four steps: (1) mediator’s introduction; (2) parties’ opening; (3) caucus; and (4) settlement. … While a typical mediation involves opposing unrelated parties in conflict, holistic estate planning involves a family, and mediation serves to bring forth any potential conflicts that exist or may arise in the future.”).

81 Beach, supra n. 76, at 703.

82 Id.

83 Id.

84 Street, supra n. 76.

85 See Morgan, supra n. 21, at 142.

86 Id.

87 Id. (quoting Sue Bronson & Linda Fieldstone, From Friction to Fireworks to Focus: Eldercaring Coordination Sheds Light in High-Conflict Cases, 24 Experience 29 (Fall/Winter 2015)).

88 Id. at 142–143 nn. 116, 117.

89 See NAELA Aspirational Stand. B § 1.

90 See id.

91 Model R. Prof. Conduct 1.13 (which deals with entity representation but does not include family as an entity; also, Model Rule 1.7 does not contain any such language); see e.g. John Gibeaut, Ethics Work 2000 Continues, 85 ABA J. 91 (1999) (ABA considered recognizing the “family lawyer” but rejected it.); A. Frank Johns, Model Rule 1.7 Applied to Elder Law: Conflicts in Multiple Client and Family Entity Engagements, 14 NAELA Q. 1 (Winter 2001); but see Russell G. Pearce, Family Values and Legal Ethics: Competing Approaches to Conflicts in Representing Spouses, 62 Fordham L. Rev. 1253 (1994).

92 Model R. Prof. Conduct 1.2 (“[A]n attorney shall abide by a client’s decisions concerning the objectives of representation and, as required by Rule 1.4, shall consult with the client as to the means by which they are to be pursued.”); Model R. Prof. Conduct 1.14 cmt. 3 (“Nevertheless, the attorney 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.”).

93 Model R. Prof. Conduct 1.6.

94 See NAELA Aspirational Stand. A § 5.

95 Id. at cmt.

96 Id.

97 Id. (“When recommending noncourt mediation or collaborative settlement, it is helpful to have the client’s instructions permitting the attorney to make such recommendations to nonclients.”)

98 Mary F. Radford, Advantages and Disadvantages of Mediation in Probate, Trust, and Guardianship Matters, 1 Pepp. Dis. Res. L.J. 241, 251 (2001) (quoting Michael D. Allen, Succession Strategies for the Family Business, ALI-ABA Estate Planning for the Family Business Owner Course of Study Materials 4 (Mar. 12, 1998)).

99 Id. (quoting Lela Porter Love, Mediation on Probate Matters: Leaving a Valuable Legacy, 1 Pepp. Dis. Res. L.J. 255, 258 (2001)).

100 See NAELA Aspirational Stand. A § 5 cmt.

101 See NAELA Aspirational Stand. A § 2.

102 Id. at cmt.

103 Id. Stand. J deals specifically with nonlegal services. Stand. J § 1 cmt. states, “Common examples of professionals who provide nonlegal services in elder and special needs law include a professional care manager, nurse, life care planner, social worker, physician, psychologist, tax preparer, appraiser, and investment advisor.”

104 Takacs, supra n. 18, at 4.

105 Id.

106 Id.

107 Id. at 5.

108 Hook & Begley, supra n. 73; Peter V. Coffey, NYSBA Ethics Opinions 752, 753 and 755 — Written by Traditionalists Who Wish to Live in a World That No Longer Exists, 40 N.Y. Real Prop. L.J. 15 (Summer 2012).

109 NAELA Aspirational Stand J § 1.

110 Id.

111 Id. at cmt.

112 Id. (“The attorney embracing the holistic approach [discussed in Standard A] is encouraged, but not required, to provide assistance through nonlegal services if the attorney has the experience and expertise to do so.”).

113 See id. at § 3.

114 Roberta K. Flowers, Can I/Should I Sell Law-Related Financial Services to Clients? 13 NAELA J. 15, 27 (2017); Model R. Prof. Conduct 1.5(b) (The only other ABA Rule that requires a written agreement involves contingency fees.); Model R. Prof. Conduct 1.7(b) (e.g., informed consent to waive conflict of interest, which is required to be done in writing).

115 Model R. Prof. Conduct 1.8(a).

116 Model R. Prof. Conduct 1.8(a) cmt. 1 (“The Rule applies to lawyers engaged in the sale of goods or services related to the practice of law, for example, the sale of title insurance or investment services to existing clients of the lawyer’s legal practice.”); Model R. Prof. Conduct 5.7 cmt. 5 (making it clear that the requirements of the rules regulating business transactions apply when a lawyer provides law-related services: “When a client-lawyer relationship exists with a person who is referred by a lawyer to a separate law-related service entity controlled by the lawyer, individually or with others, the lawyer must comply with Rule 1.8(a).”); see also Flowers, supra n. 114.

117 Model R. Prof. Conduct 1.8(a) cmt. 1 (“A lawyer’s legal skill and training, together with the relationship of trust and confidence between lawyer and client, create the possibility of overreaching, when the lawyer participates in a business, property or financial transaction with a client, for example, a loan or sales transaction or a lawyer investment on behalf of a client. The requirements of paragraph (a) must be met even when the transaction is not closely related to the subject matter of the representation, as when a lawyer drafting a will for a client learns that the client needs money for unrelated expenses and offers to make a loan to the client. It also applies to lawyers purchasing property from estates they represent. It does not apply to ordinary fee arrangements between client and lawyer, which are governed by Rule 1.5, although its requirements must be met when the lawyer accepts an interest in the client’s business or other nonmonetary property as payment of all or part of a fee. In addition, the Rule does not apply to standard commercial transactions between the lawyer and the client for products or services that the client generally markets to others, for example, banking or brokerage services, medical services, products manufactured or distributed by the client, and utilities’ services. In such transactions, the lawyer has no advantage in dealing with the client, and the restrictions in paragraph (a) are unnecessary and impracticable.”).

118 See NAELA Aspirational Stand. J.

119 Flowers, supra n. 114, at 18–19.

120 See Model R. Prof. Conduct 5.7 cmt. 4 (“Law-related services also may be provided through an entity that is distinct from that through which the lawyer provides legal services. If the lawyer individually or with others has control of such an entity’s operations, the Rule requires the lawyer to take reasonable measures to [ensure] that each person using the services of the entity knows that the services provided by the entity are not legal services and that the Rules of Professional Conduct that relate to the client-lawyer relationship do not apply. A lawyer’s control of an entity extends to the ability to direct its operation. Whether a lawyer has such control will depend upon the circumstances of the particular case.”).

121 Andrew Hook, Incorporating Financial Planning and Services Into Your Practice, 26 Elder L. Rpt. 1, 1 (Sept. 2014) (“Client matters will be unbundled and sourced to in-house lawyers, in-house financial planners, paralegals, or social workers or outsourced to professionals such as accountants, investment advisors, insurance agents and care managers.”).

122 See Model R. Prof. Conduct 5.4.

123 Id. at § (b) (“A lawyer shall not form a partnership with a nonlawyer if any of the activities of the partnership consist of the practice of law.”).

124 Model R. Prof. Conduct 5.7.

125 See Flowers, supra n. 114, at 22–28 (These rights include “confidentiality, loyalty, communication, competent representation, diligence and avoidance of conflicts of interests.”).

126 See NAELA Aspirational Stand. J § 3 cmt.

127 Model R. Prof. Conduct 5.3.

128 See NAELA Aspirational Stand. J § 1 cmt.: The elder and special needs law attorney “should be advised if the nonlegal service provider has any licensing or other obligations that could conflict with the attorney’s duties. For example, a nurse could be a mandatory reporter of abuse, and exercise of this obligation could conflict with the attorney’s duty of confidentiality in some states.”)

129 All the names in these examples have been changed.

130 See NAELA Aspirational Stands. Preamble.

About the Author
Roberta 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. Professor Flowers thanks Stetson University College of Law for her sabbatical from teaching and thanks law students Jenna Jordan and Adriana Choi for their research assistance.