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

Commentary on Do Elder Law Practitioners and the American Legal Profession Need an Ethical Confidentiality Rule or Can Both Do Without ABA Model Rule 1.6?

By Professor Roberta K. Flowers

I am proud to be a member of an organization that is willing to publish articles such as Mr. Molander’s1 provocative article entitled Do Elder Law Practitioners and the American Legal Profession Need an Ethical Confidentiality Rule or Can Both Do Without ABA Model Rule 1.6? The ­NAELA Journal Editorial Board demonstrated by the inclusion of this article that it recognizes that for an organization to thrive and prosper, it must support the exchange of ideas and positions and foster professional debate about long-held values, even where that debate may challenge positions that the organization advocates. Understanding that confidentiality is a key piece of the NAELA Aspirational Standards for the Practice of Elder and Special Needs Law, they wanted to provide an opportunity for a member of the committee that recently updated the Aspirational Standards an opportunity to comment on Mr. Molander’s article and asked me, as the Chair of that committee, to provide the commentary.

One of the pillars of lawyer ethics is the attorney’s obligation, with limited exceptions, to maintain client confidentiality. Mr. Molander’s article forces us to consider whether the costs of keeping our client’s confidences outweigh the benefits. It requires us to step back and look at a value that we, as a legal profession and specifically elder law practitioners, hold as core to being a lawyer. Mr. Molander posits that the confidentiality rule, specifically ABA Model Rule 1.6 and the Aspirational Standards, are based on antiquated notions. He provides several arguments as to why the rules regulating confidentiality should be abandoned.2 His conclusion is that all issues involving client confidences should be resolved by the court applying a narrowly construed attorney/client privilege.

Mr. Molander presents compelling reasons to reconsider the value of the confidentiality rules and who is protected by those rules. He also requires us to consider the difficult ethical dilemmas faced by elder law attorneys in keeping their client’s secrets, a truth that is played out in almost every elder law office throughout the country daily.

But accepting Mr. Molander’s position regarding the difficulty of balancing confidentiality with other duties does not necessitate the conclusion that the rules be discarded. Maybe the Preamble to the ABA Model Rules says it best:

In the nature of law practice, however, conflicting responsibilities are encountered. Virtually all difficult ethical problems arise from conflict between a lawyer’s responsibilities to clients, to the legal system and to the lawyer’s own interest in remaining an ethical person while earning a satisfactory living. The Rules of Professional Conduct often prescribe terms for resolving such conflicts. Within the framework of these Rules, however, many difficult issues of professional discretion can arise. Such issues must be resolved through the exercise of sensitive professional and moral judgment guided by the basic principles underlying the Rules.3

Mr. Molander’s conclusion that Model Rule 1.6 and NAELA’s Aspirational Standards are for the benefit of the attorney and not the client is flawed.4 Specifically, the Aspirational Standards make clear the purpose of its Standards is to assist attorneys in making the lives of their clients better.5 I think that Mr. Molander too quickly discards his own suggestion that the confidentiality rules are necessary to foster autonomy and protect every individual’s right to privacy.6 In writing the Standards, a core value discussed by the drafting committee was maintaining the client’s autonomy. A basic tenet of autonomy is having control of with whom the client’s information will or will not be shared.

Mr. Molander correctly points out that the Standards and state confidentiality rules limit what actions attorneys can take when the client discloses she is a victim of elder abuse. He declares the Standards to be inconsistent in the application of the confidentiality provisions and the provisions on elder abuse and exploitation. Yes, these are difficult tight ropes to walk, but the Aspirational Standards and the Model Rules recognize that ultimately our job is to responsibly represent a client. The core of representation is to work for the client’s objectives, not to take on a paternalistic role where we deem what is the client’s best interest (unless there is a need for protective action).

I encourage you to read Mr. Molander’s article, not just because it is well-written and thoughtful but because it causes you to think and hopefully recommit to the belief that to be a lawyer, to be a professional elder law attorney, you must be a secret keeper.

1 By way of disclosure, Mr. Molander initially wrote this article for the Aging and the Law course in Stetson College of Law Elder Law LLM program. The class was taught by Rebecca Morgan.

2 The arguments include:

1. The basis of the rules (to encourage clients to seek attorneys for advice and be candid with the attorney) has no empirical data (pages 10; 12-15);

2. The cost of the confidentiality rules outweighs any “illusory benefit.” (pages 10; 15-16); and

3. The confidentiality rules are an obstacle to innovative ways to provide legal services. (pages 27-30).

Garth A, Molander, Do Elder Law Practitioners and the American Legal Profession Need an Ethical Confidentiality Rule or Can Both Do Without ABA Model Rule 1.6? 16 NAELA J. 1 (2020).

3 ABA Model Rules of Professional Conduct, Preamble (2019).

4 As Gregory French, former chair of NAELA Professionalism and Ethics Standards (the committee that wrote both the 1st and 2nd editions of the Standards) said in reaction to this article:

“I disagree that confidentiality is less a way to protect the client and more a way to protect the control of the justice system by attorneys. The Aspirational Standards couldn’t be clearer that the purpose of confidentiality is to benefit and protect the client. Confidentiality obligates the attorney and not the client.”

Email to Nancy Sween on May 28, 2020.

5 Aspirational Standards for the Practice of Elder Law with Commentaries (2nd ed. NAELA 2017).

6 Molander, supra note 2 at page 16-17.

About the Author
Roberta K. Flowers is Professor of Law at Stetson University College of Law, Director of the Center for Excellence in Elder Law and Director of the LLM in Elder Law, Co-Chair of the NAELA Professionalism and Ethics Committee, and drafting committee member for the 1st and 2nd editions of the Standards.