D. Conflicts of Interest

The elder and special needs law attorney:

1. In the initial meeting when multiple prospective clients are present, ensures that the prospective clients understand whether the representation will be individual, concurrent or joint. 

Attorneys are frequently approached by families seeking counsel or representation on behalf of one or more family members. As used in these Standards, an individual representation is one in which the attorney represents one person. When more than one person is represented, the representation is either concurrent or joint. A concurrent representation means representation of two or more persons in related matters in which confidences are not shared, whereas in a joint representation of two or more persons, confidences among the parties are fully shared.

While an individual representation of one person is preferred, a joint representation may be appropriate when there is no material conflict of interest between the parties, they have shared goals and common interests, and joint representation will further family harmony, economic efficiency, and consistency of action and serve the best interests of the client(s). Concurrent representation should only be undertaken with great care because the disclosure by one client of confidences may interfere with the attorney’s duties of loyalty and impartiality to the other client.

This Standard addresses a common situation when prospective clients ask the attorney to represent multiple family members in either related or distinct matters. Because these situations may easily lead to misunderstandings among family members, the attorney should ensure that prospective clients are educated about the differences among individual, concurrent, and joint representation.

Example 1:  Husband and wife have been married for 20 years, but they each have two children from prior marriages. All their assets are jointly owned, they have good relationships with all four children, and they want each of their four children to share equally in the estate plan. Since husband and wife have no apparent conflicting goals, it may be appropriate for them to select an attorney to represent them in a joint representation. The attorney should prepare a detailed joint representation agreement that provides for full disclosure of communicated information and that the attorney may be required to withdraw if a conflict between husband and wife develops. (See Representing Both Spouses: The New Section Recommendations, 7 Probate & Property 26 (July/Aug. 1993) by Malcolm A. Moore & Anne K. Hilker) 

Example 2:  An attorney is asked by husband and wife to prepare their mirror-image estate plans and simultaneously asked by their two adult children (who are the beneficiaries of their estates) to prepare their respective estate plans.  The attorney must undertake the conflict of interest analysis that is required by his or her state conflict rules.  Assuming multiple representation is permissible, different arrangements of joint, concurrent or individual representation may be appropriate with the client’s consent.  For example, one arrangement may be that the attorney represents husband and wife jointly and represents all of the children concurrently.  Another may be that all four children are represented jointly, which might be appropriate if the estate plan involves a closely held family business in which all four are principals.  The attorney should take reasonable steps to ensure that all the clients understand how different types of representation impose different duties on the attorney with different consequences for the clients and confirm this understanding in well-drafted engagement agreements and written waivers. (See Standard C. Engagement Agreements and Document Drafting, Section 1.)
2. Undertakes joint or concurrent representation, as permitted by relevant state rules of professional conduct and these Aspirational Standards, only after obtaining the consent of the parties and having reviewed with them the advantages and disadvantages of such representation, including the relevant foreseeable conflicts of interest and risks of such representation, in a manner that will be best understood by each person to be represented. 

This Standard presumes compliance with applicable state professional responsibility rules regarding requirements for communicating adequate information in order to obtain clients’ informed consent as a prerequisite to joint or concurrent representation.  The attorney’s approach in communicating this information should reflect the fact that clients in elder law and special needs planning matters may have widely differing strengths and limitations in decision-making abilities or styles. 

In carrying out this responsibility, the attorney should consider private, direct and personal communications with the potential clients separately because this may allow each of them to be more candid and to more freely ask questions of the attorney regarding the implications of joint, concurrent, or individual representation (See Standard B. Client Identification, Section 3).  For example, separate meetings may be advisable in multigenerational representation or with clients who have blended families.  In cases of joint or concurrent representation, the consent of the parties should be confirmed in writing with signed waivers.

In the event a conflict arises between or among joint or concurrent clients, the attorney should consider ceasing representation of all the parties because the attorney possesses confidential information about all the parties. Although some state ethics rules may allow for continued representation based on written consent of the parties, such continued representation is risky and should be carefully considered before proceeding. 

3. Treats family members who are not clients as unrepresented persons and accords them involvement in the client’s representation only to the extent that the client consents to their involvement with a signed waiver or, if the client no longer has the capacity to consent, to the extent their involvement is consistent with the client’s wishes and values if known and if not known, the client’s best interests.

This Standard addresses the common situation in which a client’s family members or trusted third parties, who themselves are not clients of the attorney, are intimately involved with the client’s affairs, often in a supportive and facilitating capacity. Even though these non-clients may appear to have the client’s wishes, values, and best interests in mind and be highly involved with the client, the attorney should be aware of the ethical challenges presented by these situations. The attorney should not give legal advice to any non-clients.

The attorney should exercise care to observe signs of undue influence.  When circumstances suggest undue influence, the attorney should take steps to ensure that the vulnerable person is protected.  Meeting alone with the client or prospective client, as discussed in the Comment to Standard B. Client Identification, Section 3) becomes especially important to protect against undue influence.

4. Accepts payment of client fees by a third party only after:
(a) Determining that payment by the third party will not influence the attorney's independent professional judgment on behalf of the client;
(b) Securing the client's informed consent to the payment by the third party in writing; and 
(c) Ensuring that all parties understand and agree to the ethical grounds for third-party payment.

Third-party payment for client work occurs frequently in elder and special needs law representation. The thirdparty payer is often a family member who may or may not also be one of the attorney’s clients. The attorney must not agree to accept payment from any third party unless the attorney has determined that this arrangement will not interfere with the attorney’s exercise of independent professional judgment on behalf of the client. Additionally, if the third-party payer is also a client, the attorney must be satisfied that the representation of one of the clients will not be materially limited by the attorney’s responsibility to the other client. The attorney must fully communicate to both the client and the third-party payer the requirements of this Standard, which include that the payer should not interfere with the representation of the client and that the payer is not entitled to any confidential information of the client. The attorney should obtain the client’s written consent to the third-party payment and confirm in writing with the thirdparty payer the ground rules relating to confidentiality of information and representation of the client.

Acceptance of payment from a third party does not create an attorney-client relationship between the attorney and the payer. When a party who is paying the fees for client services is actually using the client’s own money to pay the fees, the attorney should ensure that the third party understands the need for lawful authority to use the client’s money to do so.

Example 1:  An adult son, who is the attorney’s client, arranges for his mother to consult with the attorney about her estate planning needs.  The son tells the attorney that he will pay for the attorney’s services to his mother.  The attorney must engage in a conflict of interest analysis to ensure that representation of the mother will not be materially limited by responsibilities to the son and vice versa.  The attorney must explain to the son that for the purposes of the mother’s estate planning, the attorney’s client is the mother even though the son is paying the attorney’s fee.  The attorney should also ensure that the mother understands the ramifications of this arrangement and obtain the mother’s informed consent in writing. The son should not be allowed to participate in the attorney’s representation of the mother or be entitled to any confidential information gained in the course of representing the mother unless the mother consents in writing to the son’s involvement and sharing of information.  

Example 2:  A daughter is her mother’s agent under a power of attorney and thus is authorized to use her mother’s money for her mother’s benefit.  The daughter arranges for her mother to consult with the attorney about her estate planning needs.  The daughter uses the mother’s money to pay for estate planning services for the mother.  Because the daughter is authorized to use the mother’s money to benefit the mother and because the client is the mother, the daughter’s payment of the attorney’s fee is appropriate. This is not a situation in which the attorney’s fee is being paid by a third party. 

Example 3:  A daughter hires the attorney to have her mother declared incapacitated and to have herself appointed as her mother’s guardian.  The daughter has signature authority on the mother’s checking account but has no ownership interest in the funds that are in the account.  The daughter is neither the mother’s agent under a power of attorney nor does she stand in any other fiduciary relationship with the mother.  The daughter tells the attorney that she plans to pay the attorney’s fees for preparing the guardianship petition from the mother’s checking account.  This may not be a typical third-party payment but rather is a situation in which the daughter is attempting to use her mother’s money to pay for an action that is potentially adverse to her mother’s wishes. Absent a state statute or rule that allows a proposed ward’s funds to be used without court order to pay for the filing of a guardianship petition, the attorney should not accept payment from the mother’s account.

5. Subject to state regulations, may serve as a fiduciary for a client upon the request of a client who has capacity if it is in the client’s best interests and if the client gives written informed consent after full disclosure.

Clients with capacity are free to appoint whomever they choose to serve as their fiduciaries under wills, powers of attorney, trusts, and other documents.   Sometimes, the attorney preparing the document is asked to serve as the fiduciary.  These requests may raise concerns about undue influence, overreaching, the attorney’s financial self-interest, and the best interests of the client. 

The attorney should not promote his/her appointment as fiduciary.  The attorney must determine that the appointment is in the best interests of the client and justify how his/her appointment furthers the client’s best interests.  Before obtaining client consent, the attorney should explain to the client the fiduciary role, any conflicts of interest,  the options to using the attorney as fiduciary, and the pros and cons of alternatives.  The client’s decision should be made in light of all the facts and circumstances of the particular case. 

If the dual role of attorney and fiduciary is ethically appropriate in a given case, another question that arises concerns the propriety of dual compensation as attorney and as fiduciary.  Although this Standard does not address this question directly, the issue was addressed in Wingspan – The Second National Guardianship Conference, Recommendations.

“The attorney should be mindful of the potential for conflict of interest where the client requests the attorney serve as a fiduciary in any capacity and where appropriate refer the client to independent counsel with regard to this particular transaction. Upon the request of a court or other party with authority, the attorney may also serve as a fiduciary for a client who does not have capacity, if it is in the client’s best interest and if this does not present a significant risk of a conflict of interest.”

There may be situations in which a court or other appropriate authority appoints the attorney as fiduciary for a client who does not have capacity.  Before accepting such appointment, the attorney should ensure that the appointment is in the client’s best interests and that the appointment will not result in a conflict of interest in which the attorney’s duties to others materially limit the attorney’s responsibilities to the client.  For example, the attorney who is appointed successor trustee of a trust established by the client while she had capacity may find that the fiduciary duty as trustee to the beneficiaries of the trust may interfere with the duty as the settlor’s attorney to protect the settlor’s interests.

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